author: OLSZEWSKI, Judge:

text:
    587 A.2d 772
    WORLDWIDE AUDITING SERVICES, INC., Appellee, v. F. Brian RICHTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1990.
    Filed March 13, 1991.

      Robert J. Kerns, Lansdale, for appellant.
    Edward Rubin, Lansdale, for appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD . ELLIOTT, JJ.
   OLSZEWSKI, Judge:

F. Brian Richter appeals from an order of the Court of Common Pleas of Montgomery County granting the petition of Worldwide Auditing Services, Inc. (Worldwide) seeking an injunction enforcing a covenant not to compete (hereinafter the Covenant). The order modifies the Covenant by confining it geographically to the State of Maryland (except the Eastern shore) and former Worldwide clients with whom Richter had contact while in Worldwide’s employ. The order also awarded Worldwide damages for Richter’s breach of the Covenant.

Richter’s appeal raises four issues. First, Richter claims that the Covenant is unenforceable as written because it is not ancillary to an employment contract or a contract for sale of the goodwill of a business. Second, Richter asserts that the Covenant, as modified by the trial court, is not reasonably limited as to time and geographical extent and imposes undue hardship upon him. Next, Richter argues that the trial court improperly awarded Worldwide damages. Finally, Richter asserts that the doctrine of unclean hands prevents enforcement of the Covenant as modified by the trial court. Finding no merit to these assertions of error, we affirm.

The relevant facts of this case are as follows. Richter was employed by Worldwide as a “Marketer” since 1981 and became a 10% shareholder in Worldwide in 1982. (Reproduced Record [R.R.] at 120a-121a). In 1987, Richter was named vice-president of the South Atlantic Region and the Capital Division of Worldwide, consisting of the States of Delaware, Maryland, Virginia and Eastern West Virginia. (R.R. at 121a-122a). This promotion required Richter to move to the new work area; accordingly, in mid-1988, the Richters began to make arrangements to sell their Pennsylvania home and move to Maryland. (R.R. at 116a, 121a-123a).

In early 1988, Worldwide began a debt restructuring, and Richter and his wife, owning 10% of the outstanding shares of Worldwide, agreed to personally secure 10% of Worldwide’s debt. (R.R. at 500a-501a). This obligation was met by the Richters giving a collateral mortgage on their Pennsylvania residence to Worldwide’s bankers in the amount of $74,000.00. (R.R. at 503a).

Richter was terminated from his position with Worldwide on May 26, 1988. After termination, the Richters continued to own 10% of the outstanding shares of Worldwide and remained as guarantors for 10% of Worldwide’s debts. (R.R. at 130a). The bank which held the mortgage on the Richters’ Pennsylvania home was willing to transfer that mortgage to their new Maryland home so that the Richters could continue to serve as guarantors. (R.R. at 505a). Richter apparently no longer wished to act as Worldwide’s guarantor. In return for Worldwide satisfying the mortgage on Richter’s home which had guaranteed Worldwide’s debt, Richter executed a Stock Redemption and Termination agreement. (R.R. at 130a). The agreement provided that Richter would be paid $25,000.00 for his shares of Worldwide stock and a further $25,000.00 for the Covenant not to compete. The money was to be paid in various installments over the two-year length of the Covenant. (R.R. at 12a). Richter consulted counsel prior to executing the agreement and signed the agreement against the advice of counsel. (R.R. at 125a, 700a).

Paragraph 6 of the Stock Redemption and Termination agreement provides in pertinent part as follows:

Restrictive Covenant. From May 23, 1988, the date on which Richter left the employ of Corporation [referring to Worldwide], and for a period of two (2) years thereafter, Richter agrees that Richter will not alone, or in any capacity with another, directly or indirectly, engage in any manner or capacity ... with the ownership, management, operation, financial backing or control in of any business similar to the type of business of the Corporation or dealing in medical cost containment or performing any of the services which Corporation now performs, or enter into or engage generally in any activity competitive with the business of Corporation within the geographic boundaries of any state within which Corporation conducts business, directly or through independent contractors, at any time hereunder (it being recognized and understood that the business of Corporation is not localized in Lansdale Pennsylvania or even in Pennsylvania and that therefore the geographical limits of this restrictive covenant be so broad as to be deemed to be against the public policy of the jurisdiction in whose courts enforcement of this restrictive covenant may be sought against Richter, the construing court shall grant Corporation the maximum restriction against Richter which is consistent with the public policy of the jurisdiction rather than refusing enforcement of this restrictive covenant as drafted on the basis that it is violative of the public policy of the jurisdiction); ____ In the event that Richter violates any of the restrictions set forth herein, and as a result of such violation, Corporation institutes legal proceedings for injunctive or other relief, the two (2) year restrictive period set forth herein shall be extended automatically for an additional period of two (2) years from the date of the final judgement of the court holding that Richter did violate said restriction ... Richter agrees that if any of the agreements set forth herein are violated, Corporation shall be entitled to an accounting and the payment over to it of all profits which Richter has realized as a result of any such violation____

(R.R. 14a-16a).

One month after signing the Covenant, Richter formed Island Consulting Services, Inc.; a company essentially performing the same medical cost containment services as Worldwide. (R.R. at 132a-133a). During 1988 and 1989, Richter contacted various present and former customers of Worldwide in Maryland soliciting their business for Island Consulting. (R.R. at 135a, 777a-780a).

The trial court determined that Island Consulting had earned profits of $45,000.00 from business conducted in Maryland or with former Worldwide customers during 1988-89. Worldwide has paid Richter the first $5,000.00 installment due under the Stock Redemption and Termination agreement. The trial court offset the $40,000.00 outstanding under the terms of the Stock Redemption and Termination agreement against the $45,000.00 damages suffered by Worldwide (such damages being the amount of Island Consulting profits arising from the breach as determined by the Covenant), resulting in an award of $5,000.00 in damages to Worldwide. (Supplementary adjudication, 2/15/90 at 1).

As an initial matter, we note that our scope of review in cases granting and continuing a preliminary injunction is confined to an inquiry of whether the trial court had reasonable grounds for its action. Duggan v. 807 Liberty Avenue, Inc., 447 Pa. 281, 286-288, 288 A.2d 750, 753 (1972). The grant of an injunction will only be reversed for a clear error of law or a manifest abuse of discretion. Pennsylvania Society for the Prevention of Cruelty to Animals v. Bravo Enterprises, Inc., 428 Pa. 350, 353-355, 237 A.2d 342, 345 (1968). With these standards in mind, we examine Richter’s claims.

Richter’s first claim of error is that the Covenant is unenforceable because it is not ancillary to an employment contract or a contract for the sale of the goodwill of a business. (Appellant’s brief at 9-13, citing George W. Kistler, Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975) and Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957)). Richter goes on to assert that a restrictive covenant which is ancillary to a sale of stock is only enforceable if the sale involves a substantial equity interest or a franchise right. Richter contends that only if one of these property rights is transferred is there an exchange of the goodwill of a business which makes a restrictive covenant enforceable. (Id., citing Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976) and Alabama Binder and Chemical Corp. v. PICCO, 410 Pa. 214, 189 A.2d 180 (1963)). We disagree.

The trial court expressly relied upon Krauss v. M.L. Klaster & Sons, Inc., 434 Pa. 403, 254 A.2d 1 (1969) in enforcing the Covenant. We find Krauss to be on all fours with the case sub judice. Just as presented here, Krauss was a shareholder, employee and then officer of the corporation who, after termination, entered into an agreement, essentially for the sale of stock, which contained a restrictive covenant. Id., 434 Pa. at 406, 254 A.2d at 2. Our Supreme Court, in a 6-to-l decision, upheld the enforceability of the covenant. Id. Further support for the proposition that a restrictive covenant ancillary to a sale of stock is enforceable is found in Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965). The Albee Court stated that restrictive covenants ancillary to an employment contract are subject to a more stringent test of reasonableness than those ancillary to a buy-sell agreement. Id., 417 Pa. at 185, 207 A.2d at 772. This clearly implies that restrictive covenants ancillary to a buy-sell agreement are enforceable. We do not dispute Richter’s contention that restrictive covenants ancillary to sales of a substantial equity interest or franchise rights are enforceable. See, Piercing Pagoda and Alabama Binder, supra. Nevertheless, those types of property interest are not indispensable prerequisites to the enforceability of a restrictive covenant. The trial court did not commit a clear error of law nor abuse its discretion by enforcing the Covenant as ancillary to the sale of stock. Richter’s first claim of error fails.

Richter’s second assertion challenges the reasonableness of the Covenant as modified by the trial court. Richter claims that the injunction prohibiting him from competing with Worldwide in Maryland (except for the Eastern Shore) and from contacting any of Worldwide’s former customers wherever located for a period of two years is inherently unreasonable as to both geographical extent and time. Richter also claims that the injunction would result in undue hardship. We disagree. '

A restrictive covenant should be drawn only as broad as is necessary to protect the legitimate business interests of the party seeking to enforce the covenant. Sidco Paper Co. v. Aaron, 465 Pa. 586, 593-595, 351 A.2d 250, 254 (1976). Richter asserts that the only legitimate business interest to be protected is Worldwide’s Maryland customer base. It is true that the trial court referred to allowing Worldwide an opportunity “to reestablish itself in the Maryland market with a new representative.” (Adjudication and Decree Nisi of 11/17/89 at 15). Nonetheless, the trial court also noted that Richter “was the key contact person servicing the plaintiff’s clients in the capítol division.” (Id., at 14). Clearly, Worldwide has a legitimate business interest in those clients even if they are not geographically located in Maryland. See, Boldt Machinery and Tools, Inc. v. Wallace, 469 Pa. 504, 366 A.2d 902 (1976) (enforcing covenant protecting employer’s interest in customer relationships developed by employee who was sole contact with such customers as reasonable). The trial court obviously included former clients along with the Maryland market as Worldwide’s legitimate business interests deserving protection.

Richter’s claim as to an unreasonable time period also fails. The Covenant specifically called for an extension of time if Worldwide sought and was granted enforcement due to Richter’s violations. Even were we to agree that such a length of time is harsh, we would enforce it. Richter had the benefit of advice of counsel which he ignored. “[Tjhere is nothing in the record to indicate that it was not part of a completely arms-length bargain between knowing and willing parties. Appellant must now live with the bargain which he struck, just as he would have to live with any other unadvantageous term that was used against him in a contract.” Krauss, supra 434 Pa. at 407, 254 A.2d at 3.

Richter’s final reasonableness argument is that the Covenant, as enforced, imposes an undue hardship upon him. Richter asserts that preventing him from competing in Maryland (except for the Eastern Shore) unduly burdens him because he now lives in Maryland. We disagree. When Richter moved to Maryland his sales responsibility included Virginia, Delaware and Eastern West Virginia as well as Maryland. Richter apparently believed that he would be able to service those areas from his Maryland location. That belief belies his present contention that he will be unable to pursue his trade at all due to the prohibition imposed by the injunction. Richter remains free to develop his business in the areas outside those denied him under the injunction so long as he does not contact those clients who are within Worldwide’s legitimate business interest.

Restrictive covenants ancillary to a buy-sell agreement are not subjected to as rigorous a reasonableness examination as those ancillary to an employment contract. Albee, supra 417 Pa. at 185, 207 A.2d at 772. We find the Covenant herein reasonable as modified by the trial court.

In a last-ditch effort to prevent enforcement of the Covenant, Richter raises the clean hands doctrine, asserting that Worldwide coerced him into signing the Covenant, and so is not entitled to enforcement in an equity action. Richter claims that he was forced to sign the agreement containing the Covenant so that Worldwide would satisfy the mortgage on his Pennsylvania home. The basis of Richter’s claim is factually incorrect. Todd A. Alderfer, the commercial loan officer at the bank which held the mortgage on Richter’s Pennsylvania home as a guarantee of Worldwide’s debt, testified that the bank would be willing to substitute the Richter’s new Maryland home as security for the Worldwide debt if the bank’s collateral position would not deteriorate. (R.R. at 505a). The trial court obviously accepted this testimony over Richter’s contention that the bank would not allow such a substitution.

Richter signed the agreement containing the Covenant after consulting with, and against the advice of, counsel. “[TJhere can be no duress where the contracting parties each consult with counsel.” Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 430-432, 233 A.2d 519, 521 (1967). Richter’s claim of unclean hands on the part of Worldwide fails.

The final issue raised by Richter deals with the amount of damages awarded to Worldwide. It is undisputed that there was an outstanding balance of $40,000.00 due Richter under the terms of the Stock Redemption and Termination Agreement. At trial, Worldwide presented evidence that Richter’s Island Consulting firm had earned $45,000.00 in profits from business conducted in violation of the Covenant. Under the terms of the Covenant, this was the amount agreed upon as damages if Richter violated the Covenant. Richter claims that the trial court erroneously-computed its total profits, not just those attributable to his violations of the Covenant. We disagree. The decree is clear that only those receipts attributable to former Worldwide customers were used to compute Island Consulting’s profits for the measure of damages. (Adjudication and Decree Nisi, 11/17/89 at 10-11).

Damages arising out of a breach of a covenant not to compete are difficult to compute with precision. Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 41, 383 A.2d 808, 811-812 (1978) (plurality). There was sufficient evidence for the trial court to determine the amount of profit earned by Island Consulting which was attributable to Richter’s violations of the Covenant. Richter agreed that this would be the measure of damages Worldwide would receive if he breached the terms of the Covenant (in effect, a liquidated damages provision). Just as Richter has agreed to the extension of time of the Covenant, he has agreed to this measure of damages; this agreement is enforceable. Krauss, supra 434 Pa. at 407, 254 A.2d at 3. As these damages have been proven by sufficient evidence, they are not based upon mere speculation or guess.

Order affirmed.

      . It is well settled that, as an equitable remedy, an injunction is only available if the party seeking relief has no adequate remedy at law. The Covenant contains a clause providing a formula for the computation of damages if Richter breached, as well as a clause providing that such damages are in addition to any other remedy Worldwide is entitled to, including injunctive relief. If parties specifically agree to a measure of damages in instances where exact computation of damages will be difficult, it is arguable that they have expressly provided an adequate remedy rendering injunctive relief inappropriate. Further, we note that it would be anomalous to allow private parties to expand the application of a court’s equitable powers by contract. As neither party has addressed the issue, we deem it waived, and express no opinion as to the effectiveness of such a contract provision.

      . We find the cases cited by Richter distinguishable. Kistier dealt with a covenant which was unenforceable because it was a modification to a previously existing contract and no adequate consideration supported the modification. Kistler, supra 464 Pa. at 484-486, 347 A.2d at 316. In Morgan’s Home, general covenants not to compete were held unenforceable as unreasonably broad, but specific covenants were enforced. Morgan’s Home, supra 390 Pa. at 624-634, 136 A.2d at 843-847.

      . As we have determined that Richter has failed to make out a case of economic coercion by Worldwide, we need not address Worldwide’s contention that actual physical harm or threats are necessary to prove duress. We note in passing that on different facts a case of economic duress or duress of goods may indeed make out a clean hands doctrine defense. See, Black’s Law Dictionary, 5th Ed. p. 452 ("Where the act consists of a tortious seizure or detention of property from the person entitled to it, and requires some act as a condition of its surrender, the act is 'duress of goods’.’’).


source: Caselaw Access Project

author: JOHNSON, Judge: McEWEN, Judge,

license: Public Domain

text:
    587 A.2d 778
    James MANZI, Appellant v. H.K. PORTER COMPANY, Celotex Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1990.
    Filed March 13, 1991.
    Mitchell Cohen, Philadelphia, for appellant.
    Vincent D. Duke, Philadelphia, for Porter, appellee.
    Bruce H. Bikin, Philadelphia, for Celotex, appellee.

      Before McEWEN, M0NTEMUR0 and JOHNSON, JJ.
   JOHNSON, Judge:

In this action for damages due to asbestos exposure, we are asked to decide whether it is proper for the court to have instructed the jury that, should they determine that the plaintiffs asbestos-related pleural thickening is not a compensable injury, then the plaintiff may bring a subsequent action if he develops a compensable asbestos-caused injury in the future. Finding this instruction to be consistent with the law of this Commonwealth, we affirm.

On February 23, 1982 appellant James Manzi brought suit against several manufacturers of asbestos. At the time this appeal was filed, H.K. Porter and Celotex were the only remaining defendants. Following a hearing in which Celotex did not oppose severance, this Court, by order of November 19, 1990 severed Celotex from this appeal in response to the automatic stay provisions of the Bankruptcy Code. In his complaint Manzi alleged that, as a result of his diagnosis for pleural and pulmonary asbestosis on November 17, 1981, he suffered anxiety, hysteria and fear that the condition would develop into cancer. He did not allege physical injury from disease. As compensation he asked for damages in excess of $15,000.00.

The trial court bifurcated the proceedings, trying the issues of medical causation and damages first. After the close of the evidence, the jury was provided with the following specific interrogatory: “Is the plaintiffs pleural thickening or pleural plaques an asbestos related condition or disease allowing him to receive compensation resulting from exposure to asbestos?” To explain this interrogatory, the court gave the following instruction:

Keep in mind, however, in determining whether or not you are going to award any sum of money under this category [damages for fear of and risk of cancer] that this is the plaintiffs only time to come into court; that is to say, if he should get cancer in the future, he can’t come back. However, if you should find that his pleur al thickening or pleural plaques are not compensable by answering question one no, then if he gets cancer in the future, he can come back.

N.T., October 20, 1989 at 62-63 (emphasis supplied).

The jury answered “no” to the interrogatory. On January 4, 1990, in the order denying post-trial motions, the court included a proviso that, should Manzi develop an asbestos-related disease or condition other than the pleural thickening he already had, then “the jury’s verdict ... shall not act as a bar against maintaining a subsequent action.!’ Judgment was entered on January 17, 1990. This timely appeal follows.

On appeal Manzi argues that the one-disease-one-injury rule triggers the running of the statute of limitations upon discovery of any condition, whether compensable or not, caused by a tortious act, and that the rule coordinately precludes a subsequent action for damages from a different disease caused by the same tortious act. Therefore, he argues, the above-highlighted portion of the jury instruction is contrary to Pennsylvania law. After careful review of the authority relied upon by Manzi, we conclude that, to the contrary, it is not the law in Pennsylvania that any condition caused by tortious conduct, whether compensable or not, is an injury as a matter of law precluding subsequent action, should a jury find no compensable damage. Whether a condition such as pleural thickening is an injury entitling the plaintiff to damages is a factual question for the jury. What follows is an analysis of the relevant cases.

The one-disease-one-injury rule evolved from the “discovery” principle first articulated in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). In Ayers, a surgeon left a sponge in the patient-plaintiff, who did not discover the negligent act until he became ill as a result nine years later. The two-year statute of limitations for a personal injury action requires that the suit be brought within two years from the time when the “injury was done.” Interpreting this language, the court held that the statute is triggered when the injury is discovered, not when the causative act took place:

The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.

Ayers v. Morgan, 397 Pa. at 290, 154 A.2d at 792 (emphasis supplied).

The court’s rationale was that “one may not be charged with dreaming away his right to recover if even the most watchful vigilance could not apprise him of the damage being done him.” Ayers v. Morgan, 397 Pa. at 291, 154 A.2d at 793. Fairness was the court’s underlying concern. See Prince v. Trustees of the University of Pennsylvania, 282 F.Supp. 832, 840 (E.D.Pa.1968). It was assumed in Ayers that once a condition becomes ascertainable, there are damages. The issue of whether there was an injury was not in the case; the definition of “injury” was not at issue. The court pointed out that “this is not a case where the act of negligence was known to the plaintiff but the extent of the damages which ensued therefrom was not ascertained until after the expiration of the statute of limitations.” Ayers, 397 Pa. at 290, 154 A.2d at 792. Once any damages are known, the statute begins to run; nothing in the opinion suggests that any condition caused by the tort, whether or not there are damages, starts the statutory period.

In Shandle v. Pearce, 287 Pa.Super. 436, 440, 430 A.2d 683, 685 (1981), we modified the Ayers rule to reach a fair result, this time in fairness to the defendant. In Shandle, treatment by a dentist for an abscessed tooth occurred in 1972, which caused bacterial endocarditis resulting in an aortic valve transplant in 1973, but the injury for which the patient sought recovery was for an aortic aneurysm occurring in 1976. We held that the action was barred by the statute of limitations:

If we were to hold otherwise under the facts presented here, we would create a concept in the law which would permit an injured plaintiff to have a new limitations period commence for the initiation of an action for personal injuries as of the date when each complication or change in condition arose, despite the fact that no “new” negligence has occurred which is attributable to the defendant. Such a concept would be contrary to the legislative intent inherent in the creation of periods of limitations in our law.

Shandle v. Pearce, 287 Pa.Super. at 441, 430 A.2d at 685-686 (emphasis added). In Shandle there was no dispute that the plaintiff had a compensable injury in 1973 when he underwent the valve transplant. Again, as in Ayers, the definition of injury was not at issue. Taken together, Ayers and Shandle established a common-sense rule based upon the fact that certain injuries do not conveniently manifest themselves within the statutory period. At the same time, a plaintiff, once aware that damage has been sustained, may not renew an attack upon the defendant at each stage of a progressing illness.

In cases concerning asbestos-induced conditions, a significant factor contemplated by neither the Ayers nor the Shandle courts comes into play—the “physically objective and ascertainable condition” may not yet be a disease-causing compensable injury at the time it is discovered. Asbestos-related pleural thickening is the formation of calcified tissue on the membranes surrounding the lungs. Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 472, 471 A.2d 1252, 1253 (1984). As in the present case, pleural thickening can be present and not cause ill health. Consequently, it has never been defined as a compensable injury as a matter of law in Pennsylvania. Howell v. Celotex et al., 904 F.2d 3 (3rd Cir.1990). In Howell, the Court of Appeals for the Third Circuit, applying Pennsylvania law, concluded that, in the face of medical disagreement, whether pleural thickening is a compensable injury in any given case is a factual question. Howell v. Celotex, 904 F.2d at 5. This is the precise factual question that was before the jury in the present case.

Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) applied the Ayers/Shandle discovery rule to the asbestos “creeping disease” situation. The plaintiff was permanently disabled. more than two years before he filed his complaint. Thus, there was no factual question of whether he sustained compensable injury. Rather, he argued that the limitations period should have begun to run only after he discovered which asbestos manufacturers were responsible. We held that difficulty in ascertaining the identity of the defendants should not be the statute-triggering event, that the statute begins to run in creeping disease cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct. Cathcart, 324 Pa.Super. at 136-137, 471 A.2d at 500 (emphasis supplied). Significantly, we recognized that there may be an issue regarding the definition of “injury,” and that “injury” had not been defined by the courts. We expressly declined to address this issue and to provide the definition, as the question was not before us. Cathcart, 324 Pa.Super. at 136-137 n. 10, 471 A.2d at 500 n. 10.

In Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 472, 471 A.2d 1252, 1253 (1984) (en banc), the plaintiff filed his action after he developed pleural thickening, as in the present case. We were asked to decide whether the trial court properly denied a pre-trial motion for a declaratory judgment that the statute of limitations would not begin to run until the plaintiff actually became disabled. The plaintiff did not ask the court to declare that his pleural thickening was or was not an injury, or to declare that it alone did or did not trigger the statute of limitations. He wanted the court to declare that nothing short of disability would trigger the statute. Therefore, even though the plaintiff’s condition was pleural thickening, we were not being asked to render a decision on the legal significance of this condition.

We affirmed the trial court’s refusal to grant the declaratory judgment, holding that a declaratory judgment may only illuminate existing legal rights and may not be used to modify or elucidate judicial decisions. Doe v. Johns-Manville, 324 Pa.Super. at 475, 471 A.2d at 1255. We determined that, under Ayers, any ascertainable injury triggers the statute. In this pre-trial stage, the trial court could not have known whether a jury would find that the Doe plaintiff had suffered compensable injury and so it would have been contrary to law for him to have declared that only a future stage of illness such as disability would constitute a compensable injury. The Doe court was not asked to render a decision on the definition of injury. Rather, it was asked to rule upon the propriety of a denial of a declaratory judgment that would have been impossible to render correctly without a factual determination of whether the plaintiff had suffered compensable injury. See Howell v. Celotex, supra. Thus, Doe cannot be read to mean that pleural thickening is a per se statute-triggering compensable injury.

Recently, in Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 539 A.2d 871 (1988), the issue before us was whether an asbestos plaintiff was prejudiced by application of New Jersey law to his case. He argued that he was denied the chance to be awarded damages for increased risk of cancer, which Pennsylvania permits. The jury had found that he sustained injuries as a result of exposure to asbestos but that the defendants were not liable for his injuries. We held that the “claim must fail for the simple reason that the application of New Jersey law to the facts of the case put him in no worse a position than he would have been in” under Pennsylvania law. Giovanetti, 372 Pa.Super. at 437, 539 A.2d at 871. The variants between the law of the two states on the subject of damages could have no bearing on the finding that the defendants were not liable.

In dicta we discussed the variants between Pennsylvania and New Jersey law, noting that New Jersey has expressly recognized pleural thickening (asbestosis) and cancer as separate and distinct injuries giving rise to separate causes of action which each accrue only when the particular injury is discovered. See Herber v. Johns-Manville Corp., 785 F.2d 79, 82 (3rd Cir.1986). We compared Pennsylvania law by relying upon Cathcart for the proposition that Pennsylvania did not create these distinct causes of action. This may be true, but it is irrelevant to Manzi’s point. The comparison does clarify the point that Manzi claims it does, the legal effect of the distinction between “injury” and “non-compensable condition,” a distinction that the Cathcart court expressly declined to address.

We conclude that no appellate court in this Commonwealth has treated a non-compensable condition as an injury precluding subsequent actions by the plaintiff, should he develop injury in the future. Hence, the jury instruction that Manzi could come back into court should the jury find no compensable injury is a correct statement of the law. We recognize that the point at issue in this case has caused confusion and that trial courts have criticized an application of the above cases to preclude future actions. See especially Doe v. Johns-Manville, 324 Pa.Super. at 476-478, 471 A.2d at 1255-1256, quoting trial courts. We do not view our decision here as a change in the law but rather as a clarification.

Order affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

The members of the majority enjoy such esteem by reason of their judicial scholarship that it is with apology that I differ with the splendid expression of the majority view. Moreover, I only proceed to so extended a dissent because this case touches upon issues which compose the most perplexing questions currently confronting the civil courts of this Commonwealth. The question presented by this appeal, however, is quite basic, namely, whether the trial court erred in its charge to the jury. Since I am convinced that the charge was error and that, contrary to the arguments of appellee, the error was not harmless, I must, respectfully, dissent.

Appellant commenced this action on February 23, 1982, seeking (1) compensation for bilateral pleural thickening and pleural plaques caused by exposure to asbestos, (2) compensation for his increased risk of contracting lung cancer; or mesothelioma in the future, (3) compensation for the emotional distress he has experienced and will continue to experience as a result of his fear of the cancer he may ultimately develop, and (4) compensation for the cost of the medical surveillance necessitated by his exposure to asbestos. Appellant conceded at trial that he was not presently suffering any physical disability as a result of the presence of pleural plaques and pleural thickening, but sought compensation for his increased risk of developing cancer as well as compensation for the suffering caused by his anxiety and fear of cancer. See: Walsh v. Brody, 220 Pa.Super. 293, 296, 286 A.2d 666, 668 (1971).

It is well settled that Pennsylvania law permits an award of damages for both (1) the increased risk of cancer, Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 437, 539 A.2d 871, 874 (1988); Doe v. Johns-Manville Corp. 324 Pa.Super. 469, 473, 471 A.2d 1252, 1254 (1984); and (2) the emotional distress caused by the fear of contracting cancer, so long as the plaintiff “is able to allege some physical injury or some medically-identifiable effect linked to [his or] her exposure to asbestos particles....” Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 153, 471 A.2d 493, 509 (1984) (emphasis supplied). Accord: Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 45 n. 3, 482 A.2d 1067, 1072 n. 3 (1984); Restatement (Second) of Torts § 436(a). The physical impact in the instant case, the existence of which enabled appellant to sue for emotional distress caused by his fear of cancer, was the pleural thickening and pleural plaques, medically-identifiable effects, which had been caused by his exposure to asbestos. The physical impact required to sustain a cause of action for negligent infliction of emotional harm need not be such that it causes “compensable bodily harm” other than the emotional distress. See, e.g., Potere v. City of Philadel phia, 380 Pa. 581, 588, 112 A.2d 100, 104 (1955); Stoddard v. Davidson, 355 Pa.Super. 262, 266, 513 A.2d 419, 422 (1986); Zelinsky v. Chimics, 196 Pa.Super. 312, 175 A.2d 351 (1961); Plummer v. U.S., 580 F.2d 72, 76 (3rd Cir.1978). Thus, appellant was entitled to recover damages for his emotional distress caused by his fear of cancer if the jury accepted his evidence. See, e.g., Martin v. Johns-Manville Corp, 508 Pa. 154, 162, 494 A.2d 1088, 1093 (1985) (collecting cases).

The trial court, however, over objection by appellant, submitted the following special interrogatory to the jury:

“Is the plaintiffs pleural thickening or pleural plaques an asbestos related condition or disease allowing him to receive compensation resulting from exposure to asbestos?”

The court, in explanation of the interrogatory, then instructed the jury, in the absence of any appellate case law which would support such a charge, that:

Keep in mind, however, in determining whether or not you are going to award any sum of money under this category [damages for fear of and risk of cancer] that this is the plaintiffs only time to come into court; that is to say, if he should get cancer in the future, he can’t come back. However, if you should find that his pleural thickening or pleural plaques are not compensable by answering question one no, then if he gets cancer in the future, he can come back.

N.T., October 20, 1989 at 62-63.

The jurors in the instant case were instructed that if they found that appellant’s bilateral pleural thickening and pleural plaques alone did not warrant an award of compensatory damages, they could cease deliberating and return a verdict for the defendants, preserving appellant’s right to sue for damages for cancer, if and when he develops that disease. The instruction thus improperly precluded the jury from proceeding to a determination of each of the items which had been properly submitted to it. This was error.

The trial court undertook a painstaking effort to clarify for the jury a most difficult area of deliberation. Nonetheless, the court, while purporting to instruct the jury on the items of damage to which appellant would be entitled if the jury accepted the evidence presented on his behalf, incorrectly instructed the jury not to consider an award for such items as the cost of future medical surveillancé, or damages for emotional distress related to the fear of developing cancer or the increased risk of cancer, if they found that appellant’s pleural thickening and pleural plaques had not resulted in any “compensable” physical injury. This was clearly error and infringed upon appellant’s right to seek compensation for his injuries. That the trial court believed that a future action could be brought if appellant develops cancer does not mitigate the harm caused to appellant by the error in the charge.

The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend the questions they are to decide____ If the charge is wholly inadequate or not clear, or has a tendency to mislead and confuse rather than to clarify the issues, a new trial will be granted. The functions of a trial judge embrace not only the duty to state to the jury correct principles of law applicable to the pending case and to endeavor to make such principles understandable in plain language, but they also impose upon the judge the duty to assist the jury in applying those principles to the issues presented to them for determination.

Bressler v. Dannon Yogurt, 392 Pa.Super. 475, 484, 573 A.2d 562, 567 (1990) (en banc), quoting Spearing v. Starcher, 367 Pa.Super. 22, 29, 532 A.2d 36, 40 (1987) (citations omitted).

Nor is the error harmless as argued by appellee. While appellee allegedly agreed not to raise the defense of the statute of limitations if a subsequent action based upon the development of cancer is brought by appellant, the error in the instant case has wrongfully deprived appellant of the opportunity to have a jury determine whether he is presently entitled to be compensated for damages occasioned by his exposure to asbestos.

While the foregoing presents, in my view, ample grounds upon which to reverse and remand for a new trial of the claims of appellant, I am of the further view that the instruction was a fundamental misstatement of the law of Pennsylvania. Moreover, while the majority opinion commendably seeks to clarify the complex issues arising from the existing law, the majority, in my most respectful view, creates new law and thereby synergizes a myriad of problems in an area of the law already in crisis.

If we accept the proposition that where a jury finds that an alleged injury is not compensable and refuses to award damages, no cause of action has accrued, and that, as a result, the trial will not serve as a bar to future litigation, numerous problems arise, not the least of which are the statute of limitations and the prohibition against splitting causes of action. While compelling arguments exist for the adoption of the two disease rule, Pennsylvania has not yet accepted it. “[I]n Pennsylvania a plaintiffs claims for all injuries arising out of the same tortious conduct of a defendant must be brought within two years of the time that the plaintiff knows, or in the exercise of reasonable diligence should know, of his initial injury and that the injury was caused by someone’s wrongful conduct.” Cathcart v. Keene, supra, 324 Pa.Superior Ct. at 150, 471 A.2d at 507 (emphasis supplied).

This Court in Doe v. Johns-Manville Corp., supra, held that because the Declaratory Judgment Act could not be used as “a vehicle for changing the law ...” the trial court had properly refused to rule that no cause of action accrues, and thus the statute of limitations does not begin to run, until a plaintiff becomes “disabled”. The Doe Court believed the reason for its ruling, affirming the trial court, to be “clear”:

Pennsylvania law as it applies to plaintiffs claim is clear. The seminal case was decided in 1959 when our Supreme Court in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) held:
[t]he injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.
Ayers v. Morgan, supra, 397 Pa. at 290, 154 A.2d at 792. Appellant concedes that in April of 1980 he was advised that he had a pleural thickening (‘damage which is physically objective’) and that it could be identified by chest x-ray (‘and ascertainable’). Thus, without more, any attempt to delay the operation of the statute of limitations would involve a change in the law

Doe v. Johns-Manville Corp., supra, 324 Pa.Superior Ct. at 473, 471 A.2d at 1254 (emphasis supplied).

It is, with undiminished deference, that I fail to comprehend the reasoning by which the majority characterizes the opinion in Doe as inapplicable to the instant case where the injuries claimed by appellant Manzi were pleural thickening and pleural plaques. The majority finds the opinion in Doe inapplicable based upon its characterization that:

The Doe Court was not asked to render a decision on all definitions of injury. Rather, it was asked to rule upon the propriety of a denial of a declaratory judgment that would have been impossible to render correctly without a factual determination of whether the plaintiff had suffered compensable injury. See: Howell v. Celotex, supra. Thus, Doe cannot be read to mean that thickening is a per se statute triggering compensable injury.

Majority Op. at p. 601.

I would submit that the Doe opinion simply “cannot be read to mean” anything other than that pleural thickening, of which a plaintiff has knowledge, “is a per se statute-triggering ... injury.” See: Howell v. Celotex Corporation, supra, 904 F.2d at 5. See also: Cowgill v. Raymark Industries, Inc., 832 F.2d 798, 802 (3rd Cir.1987). The question of whether pleural thickening is “compensable” is simply (and unfortunately for plaintiffs such as Howell) not relevant to the inquiry concerning the triggering event for purposes of the statute of limitations. See: Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982) (“Similarly, we do not read the complaint as alleging a claim for a ‘different disease of pleural thickening.’ But if we assume that the complaint should be read as alleging such a claim, the claim is nevertheless barred, for a new limitation period does not start each time a new disease develops from the same tortious conduct of the defendant.”)

The trial court in the instant case included in its order dismissing post-verdict motions, the following:

In the event that Plaintiff shall suffer from a disease or a condition other than pleural thickening, which is asbestos related, the jury’s verdict in this case shall not act as a bar against maintaining a subsequent action.

While appellee asserts that the order is meant to preclude the statute of limitations being raised as a defense if plaintiff develops cancer, it is equally plausible that the order was meant to avoid the prohibition against splitting causes of action. However well intentioned, the attempt of the trial court to provide a more certain justice than is currently available to individuals in the circumstances of the appellant, falls short of the goal. While cases and articles describing the procedures utilized in other jurisdictions provide potential solutions, see, e.g. Eagle-Picher Industries Inc. v. Cox, 481 So.2d 517 (Fla.App. 3rd Dist.1985), cert. denied, 492 So.2d 1331 (1986); Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983), selection of the procedure to be employed in this Commonwealth is the precise role of the Supreme Court or the legislature.

      . "Asbestos-related pleural thickening is defined as a scar tissue ‘condition’ forming on the lungs as a result of asbestos contact.” Doe v. Johns-Manville, 324 Pa.Super. 469, 471, 471 A.2d 1252, 1253 (1974). Although pleural thickening itself “causes no physical damage, its presence signifies increased risk of harm, and the possibility of other latent asbestos-related injury.” Howell v. Celotex Corp., 904 F.2d 3, 4 (3rd Cir.1990). Cf. Berardi v. Johns-Manville Corp., supra, 334 Pa.Super. at 40, 482 A.2d at 1069. (" ‘X-rays’ indicated pleural thickening and plaques and the diagnosis was ‘probable asbestosis’.”)

      . This interrogatory, drafted by appellee, blurs the pertinent issues since it could be understood to be asking whether the pleural thickening or pleural plaques was/were caused by asbestos exposure rather than by some other agent or factor. It appears from the court’s charge, however, that the interrogatory was directed to whether or not the "condition or disease” was “compensable”.

      . The court’s charge on damages provided:
      "Let’s proceed to the damage issue and, again, you would only reach the damage issue if you found that Mr. Manzi’s pleural thickening or pleural plaques are compensable. If you say no to that issue, then you wouldn’t reach the damage question.
      Now, if you reach the damage question, then you should consider these factors in determining whether or not you are going to award damages to Mr. Manzi. You can consider each one and then determine whether it's worth anything or not, and if it is worth something, how much it is. First of all, the plaintiff would be entitled to fair and reasonable compensation for fair and reasonable medical bills for future checkups. What that amount would be and how long he would be entitled to the future checkups, that's up to you to decide.
      Now, the plaintiff is also entitled to fair and reasonable compensation for what we call pain and suffering, and that would be as follows. The plaintiff, if you find, if you reach the damage issue, then you should consider whether to award the plaintiff compensation for pain and suffering, and the plaintiff would be entitled to fair and reasonable compensation both in the past, present and in the future for mental anguish, discomfort, inconvenience and distress.
      In addition, the plaintiff would be entitled to fair and reasonable compensation for the loss, if any, of the ability to enjoy the pleasures of life.
      If you reach the damage issue, you should consider the fear of cancer, and the plaintiff would be entitled to fair and reasonable compensation for a reasonable fear of cancer arising from his exposure to asbestos.
      In addition, you should consider, and it’s up to you as to whether you would award anything or not, but you should consider in the damage area the increased risk of cancer arising from the plaintiffs exposure to asbestos. The plaintiff would be entitled to a fair and reasonable compensation for any reasonable statistical increase in the risk of cancer as a result of his asbestos exposure.
      Keep in mind, however, in determining whether or not you are going to award any sum of money under this category that this is the plaintiffs only time to come into court; that is to say, if he should get cancer in the future, he can’t come back. However, if you should find that his pleural thickening or pleural plaques are not compensable by answering question one no, then if he gets cancer in the future, he can come back.”

      . While appellee in its brief states that it ‘‘has agreed not to raise the statute in the event Manzi, in fact, files a subsequent action for asbestos-related cancer", citing page 43(b) of the reproduced record, no such agreement appears in the reproduced record submitted to this court.

      . “It is a well-settled and familiar rule that a single claim, arising either in contract or in tort, cannot be divided and made the subject of several suits; and if actions are brought for different parts of a single demand, a judgment on the merits in one is available as a bar to the other’____ The purpose of the rule is worthy. It is intended to protect persons from being twice vexed with suits growing out of a single cause of action. It also serves to prevent the business of the courts from being encumbered by multiple actions when one will suffice.” Franklin Decorators Inc. v. Kalson, 330 Pa.Super. 140, 142, 479 A.2d 3, 4 (1984), quoting Saber v. Supplee-Wills-Jones Milk Co., 181 Pa.Super. 167, 168, 124 A.2d 620, 621 (1956) (citations omitted). See also: Giovanetti v. Johns-Manville, supra 372 Pa.Super. at 437, 539 A.2d at 874.

      . The trial judges of our Commonwealth who constantly grapple with the difficulties attendant the asbestos litigation currently congesting their courts have eloquently appealed for major reform in this area. See: Blue v. Johns-Manville, 10 P.C.R. 23 (1983); Faix v. Johns-Manville Corp., 9 P.C.R. 341 (1983); In Re Asbestos Litigation, No. 89-90000-12, Civil Div., Bucks County; filed July 6, 1990).


author: KELLY, Judge:

text:
    587 A.2d 786
    COMMONWEALTH of Pennsylvania v. Roberto Ramos GONZALEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed March 14, 1991.

      G. Roderick Snyder, Reading, for appellant.
    George C. Yatron, Dist. Atty., Reading, for Com.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether counsel may be permitted to withdraw based upon an Anders brief as well as upon appellant’s desire to proceed without counsel. For the reasons which follow, we remand to the trial court for a hearing consistent with this opinion.

The facts and procedural history may be summarized as follows. On July 31, 1987, appellant, Roberto Ramos Gonzalez, was arrested and charged with drug violations. On September 23, 1988, a jury found him guilty of possession of cocaine, possession with intent to deliver cocaine, criminal conspiracy—to possess and criminal conspiracy—intent to deliver.

On October 11, 1988, appellant filed a pro se challenge alleging that the evidence was insufficient to establish that he was in possession of the drugs. On October 24, 1988, appellant was sentenced to two concurrent terms of imprisonment of fifteen months to forty-eight months. No direct appeal was taken.

On January 23, 1989, appellant filed a pro se PCRA petition. Counsel was appointed on February 1, 1989, and filed an amended PCRA petition on August 28, 1989. On October 17, 1989, a hearing was held; appellant and trial counsel testified. On March 27, 1990, the trial court entered an order denying appellant’s PCRA petition. This appeal was filed on April 23, 1990.

On August 3, 1990, counsel filed with this Court an Anders brief. Before this Court could dispose of this brief, however, on October 23, 1990, appellant’s counsel filed a petition to withdraw as counsel with this Court requesting a remand to the trial court to permit him to withdraw as counsel. The basis for counsel’s petition for permission to withdraw was appellant’s desire to proceed without him as indicated by appellant’s motion, dated September 27, 1990, to the trial court in which appellant advised both counsel and the Berks County Court that he no longer wished counsel to proceed further in this matter, and requested the trial court to grant counsel leave to withdraw as counsel of record. Counsel attached a copy of appellant’s motion to his petition to withdraw. Counsel, in his petition to withdraw, also represented that appellant had filed a pro se petition for notes of testimony and other pertinent documents as a showing that appellant no longer desired his representation.

Our research has not disclosed any case in which counsel has sought to withdraw based upon both an Anders brief and upon appellant’s desire to proceed without counsel. We turn to Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990) (en banc), wherein this Court considered its position on hybrid appeals. The issue as stated in Commonwealth v. Ellis, supra, was “whether and under what circumstances this Court will consider pro se briefs in criminal cases where appellant is represented by counsel on appeal.” 581 A.2d at 597. There this Court held that:

[i]f the pro se brief alleges ineffectiveness of appellate counsel or an affirmative desire to be heard pro se, we direct counsel to petition this court to remand the case to the trial court so that it may conduct a full hearing in order to determine appellant’s knowing and intelligent waiver of his right to appellate counsel, and of his desire to proceed pro se, or in the case of ineffectiveness, an appointment of new appellate counsel.

581 A.2d at 600-601. Consistent with this holding, this Court in Commonwealth v. Legnine, Pa.Super., 582 A.2d 1127 (1990) (en banc), when presented with a counselled brief as well as a pro se brief, remanded the case to the trial court for a hearing to determine whether appellant desired to proceed pro se or with presently appointed counsel.

Instantly, we have before us appellant’s counsel’s petition to withdraw which indicates that appellant may no longer desire his representation. We find the instant case'to be sufficiently analogous to Commonwealth v. Legnine, supra. Hence, as in Commonwealth v. Legnine, supra, where the counselled brief was not considered, we will not consider counsel’s brief instantly, but remand this case to the trial court for a hearing to determine whether appellant desires to proceed pro se, by privately retained counsel, or not at all. Cf. Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 979 (1988).

As the right to counsel has been held to attach to the first PCRA petition, see Pa.R.Crim.P. 1504(a), and remains in effect throughout post-conviction proceedings, including any appeal, see Pa.R.Crim.P. 1504(d), a defendant seeking to waive his right to counsel must do so in a knowing, intelligent and voluntary manner. See Pa.R.Crim.P. 1504 comment; Pa.R.Crim.P. 318(b)(2); Commonwealth v. Sangricco, 490 Pa. 126, 132 n. 1, 415 A.2d 65, 68 n. 1 (1980); Commonwealth v. Thier, 354 Pa.Super. 7, 10, 510 A.2d 1251, 1252 (1986). Thus, on remand, if appellant wishes to proceed pro se, the trial court must determine if appellant has so waived his right to counsel. We note moreover that the trial court is vested with sound discretion to determine if appellant’s desire to end present counsel’s representation is merely a ploy to extend the proceedings, an attempt to circumvent counsel’s assessment of frivolity of the instant appeal or a genuine desire to proceed pro se, with new counsel or not at all. See Commonwealth v. Basemore, 525 Pa. 512, 522, 582 A.2d 861, 865 (1990) (decision to grant request for change of counsel within sound discretion of trial court and shall not be granted except for substantial reasons); Pa.R.Crim.P. 316(c).

If upon remand the trial court finds that appellant wishes to proceed with this appeal, counsel’s petition to withdraw should be granted and appellant shall be directed to file an appellate brief with this Court within thirty days of the trial court finding. If appellant fails to file a brief within thirty days, as directed, we will consider appellant’s failure to be an election of the third alternative identified in Common wealth v. Turner, supra, and appellant’s appeal will be dismissed with prejudice. See Commonwealth v. Patterson, 389 Pa.Super. 450, 567 A.2d 690 (1989).

Remanded. Jurisdiction retained.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . 35 P.S. § 780-113(a)(16); 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903(a)(1); and 18 Pa.C.S.A. § 903(a)(2), respectively.

      . We note that the Anders brief submitted to this Court was technically deficient. In counsel’s brief, he states that he "feels that the law is heavily against these issues raised on appeal.” Appellant’s Brief at 5. In Commonwealth v. Wilson, 396 Pa.Super. 296, 298-99, 578 A.2d 523, 524-25 (1990), this Court stated that:
      [u]nder Anders and its Pennsylvania progeny, in order to withdraw, counsel must (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court's attention.
      Instantly, counsel failed to meet the first and third requirements. However, as our disposition is controlled by the petition to withdraw based on appellant's desire to proceed without present counsel, the degree to which the Anders brief was technically deficient is irrelevant in our consideration.
      We note additionally that the requirements for counsel who wishes to withdraw from representation during post-conviction proceedings are found within Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc).


author: PER CURIAM: JOHNSON, Judge,

text:
    587 A.2d 788
    COMMONWEALTH of Pennsylvania v. Bernard YETSICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 14, 1991.
    Filed March 15, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   OPINION

PER CURIAM:

This is a direct appeal from the judgment of sentence entered against appellant, Bernard Yetsick, in connection with a conviction for driving while operating privilege is suspended or revoked, DUI related, 75 Pa.C.S.A. § 1543. For the reasons that follow, we reverse.

Appellant appealed from a summary conviction which was entered on the charge set forth above. On May 8, 1990, a de novo bench trial which resulted in a guilty verdict was held in the Allegheny County Court of Common Pleas before the Honorable Raymond L. Scheib. Although the court set a sentencing date of June 29, 1990, appellant was actually sentenced in absentia by an order entered on the same date as the bench trial. Appellant was notified of this fact via a copy of the sentencing order entered May 8, 1990 which the lower court mailed to appellant.

The lower court never advised appellant of his rights to file post-verdict motions, a motion for modification of sentence, or an appeal. Nevertheless, counsel for appellant filed a post-verdict motion on May 18, 1990 and lodged a timely appeal with this court on June 7, 1990. Despite the fact that Pa.R.Crim.P., Rule 1123, 42 Pa.C.S.A. mandates the consideration of post-verdict motions before imposing sentence, appellant’s post-verdict motion was ultimately denied after a hearing held on June 29, 1990, seven seeks after the sentence was entered. The instant appeal ensued, raising the following two issues:

1. Was the evidence insufficient to convict [appellant] of driving a vehicle while under the suspension for driving under the influence insofar as that suspension period had yet to commence?
2. Did the trial court commit reversible error in failing to advise [appellant] of his post-verdict rights; to dispose of post-verdict motions before imposing sentence; to impose sentence in open court; to state reasons for the sentence on the record; and for not providing Mr. Yetsick with his right of allocution?

We shall address these contentions in order.

It is well settled that when sufficiency of the evidence claims are raised, “an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of this test requires us to evaluate the entire trial record and all evidence actually received, in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the trier of fact could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). We note that the trier of fact is free to believe all, part, or none of the evidence presented, Griscavage, supra, 512 Pa. at 546, 517 A.2d at 1259, and that “the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Harper, supra, 485 Pa. at 576, 403 A.2d at 538.

The thrust of appellant’s sufficiency claim is that he cannot be convicted under 75 Pa.C.S.A. § 1543(b), pertaining to DUI related suspensions, in connection with his July 26, 1989 arrest, because the suspension during which he was driving in July of 1989 had not been imposed for a DUI offense. This argument fails to give adequate weight to the fact that, at the time of the arrest in question, appellant had been notified that his driving privileges would be suspended on a DUI related offense once his current suspension was complete. Appellant, the Commonwealth, and the trial court all agree that this issue is governed by Commonwealth v. Nuno, 385 Pa.Super. 6, 559 A.2d 949 (1989) which held that an actor is subject to the penalties of § 1543(b) throughout any current suspension or revocation, whether DUI related or not, if a DUI related suspension or revocation has been imposed to begin at a future date. As the Nuno court stated:

We hold that when a person receives notice that their operating privilege is or will be suspended or revoked for a DUI related offense, that person is subject to the penalties of § 1543(b). That person will be subject to the penalties of § 1543(b) throughout any current suspension or revocation and any subsequent suspensions or revocations until the end of their DUI related suspension or revocation.

Id., 385 Pa.Superior Ct. at 9, 559 A.2d at 951. Although appellant patently disagrees with the ruling in Nuno, it is binding precedent nonetheless. We therefore affirm on this issue.

Appellant next claims that he was denied a number of post-verdict rights because the trial court failed to follow the appropriate procedural rules. Specifically, appellant contends that the “mail order sentence/verdict” issued by the lower court did not comply with Rules of Criminal Procedure 63(b)(3), 86, 1405(a), and with the provisions of 42 Pa.C.S.A. §§ 9752 and 9759. Appellant further argues that the lower court’s imposition of sentence prior to the disposition of post-verdict motions contravenes settled practice under Rule of Criminal Procedure 1123 and that the lower court failed to advise him of his post-verdict rights as required by Rule 1405(c). Finally, appellant avers that he was deprived of knowing the reasons for the sentence imposed because the court did not explain the sentencing rationale on the record and that he had no opportunity to be heard before he was sentenced as required by Rule of Criminal Procedure 1405(a).

It is beyond cavil that general post-verdict rules are applicable to summary cases which have been appealed de novo to a court of common pleas. Commonwealth v. Adame, 363 Pa.Super. 405, 408, 526 A.2d 408, 409-10 (1987). We note, however, that appellant has not raised these procedural defects in the court below. Nevertheless, we will not deem this issue waived because the trial court failed to inform appellant of his post-verdict rights and improperly pronounced the verdict and sentence simultaneously by a written order made subsequent to the conclusion of the de novo trial. In Commonwealth v. Hollingsworth, a case in which the trial judge neglected to advise a defendant of her rights, our supreme court stated “[sjince the trial judge was, pursuant to Pa.R.Crim.P. 1123, required to inform Appellant of her appeal rights, we hold that Appellant has not waived the substantive issues raised to the Superior Court.” Id., 524 Pa. 172, 177, 569 A.2d 947, 949 (1990) (emphasis in original). See also Commonwealth v. Bradley, 381 Pa.Super. 528, 554 A.2d 127 (1989) (disapproving the practice of entering sentence before a defendant has had the opportunity to file post-verdict motions, particularly where the accused has not been apprised of his rights); Commonwealth v. Hurst, 367 Pa.Super. 214, 532 A.2d 865 (1987) (explaining that the pronouncement of the verdict and the sentence simultaneously is improper because a defendant must be permitted to file timely post-trial motions after the verdict is rendered but before sentence has been imposed); Commonwealth v. Eliason, 353 Pa.Super. 321, 509 A.2d 1296 (1986), allocatur denied, 517 Pa. 592, 535 A.2d 81 (1987) (rejecting the improper practice of pronouncing the verdict and the sentence simultaneously). But see Commonwealth v. Shinn, 368 Pa.Super. 436, 534 A.2d 515 (1987), allocatur denied, 519 Pa. 659, 546 A.2d 621 (1988) (defendant was not prejudiced by the trial court’s error in imposing sentence prior to filing and disposition of post-trial motions where defendant was permitted to file post-trial motions nunc pro tunc and where trial court’s opinion addressed the arguments raised in post-trial motions).

The prosecution concedes that Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) and Commonwealth v. Adame, supra, require the courts of common pleas to comply with the Rules of Criminal Procedure in cases where a summary conviction has been appealed for a trial de novo. However, the Commonwealth contends that it makes no difference in the instant case whether the correct procedure was followed because the lower court imposed a mandatory sentence pursuant to 75 Pa.C.S.A. § 1543(b), the provisions of which have been set forth at note 1 supra. In this context, the Commonwealth also asserts that appellant has not been prejudiced because he actually filed timely post-verdict motions, although never informed of his right to do so by the lower court.

It well may be, as the Commonwealth argues, that the likely result in appellant’s case would have been the same had the lower court conformed to the appropriate rules. We cannot, however, agree that the Rules of Criminal Procedure are rendered moot or inapplicable either because a mandatory sentence is involved or because trial counsel is experienced enough to protect his client by filing post-verdict motions where the trial court has neglected to inform the defendant of his rights. We are fully cognizant of the heavy burden shouldered by a trial judge confronted with a substantial summary conviction list. See Commonwealth v. Bradley, supra, concurring opinion by Olszewski, J. (discussing the difficulties experienced by a trial judge faced with a crowded docket of appeals from summary convictions). However, this court is simply not free to ignore the rights of those who have been convicted of a crime. Nor may we encourage the courts of common pleas to do so.

Commonwealth v. Ragoli, Commonwealth v. Adame, and the instant case have all presented this court with an identical problem: the repeated failure of the Allegheny County Court of Common Pleas to accord full procedural due process to defendants who appeal from summary convictions. As we stated in Commonwealth v. Adame,

the type of “mail-order-verdict/sentence” issued by the court below is at odds with those stated principles so cherished in our judicial system, i.e., to have hearings, proceedings, sentencings and trials conducted in an open forum and of record. These precepts are lacking as to the manner and method in which the verdict and sentence were issued.

Id., 363 Pa.Super at 409, 526 A.2d at 410. We note additionally that the Pennsylvania Supreme Court has specifically affirmed the right of allocution, holding that one who stands convicted of a crime and who is denied an opportunity to address the sentencing court need not demonstrate prejudice thereby. Commonwealth v. Thomas, 520 Pa. 206, 208, 553 A.2d 918, 919 (1989). Although the impact of allocution is arguably lessened where a mandatory minimum sentence is involved, as an intermediate appellate court, we are unwilling to interpret Thomas as curtailing a defendant’s right to allocution under such circumstances. Simply stated, the American system of jurisprudence reserves for the accused the decision to exercise a right and does not give that prerogative to the trial judge.

In light of the procedural shortcomings of this case, we follow the precedent established by Commonwealth v. Ragoli and Commonwealth v. Adame, supra, and vacate the sentence imposed below. We remand with directions that the trial court enter a finding of guilty or not guilty in accordance with accepted practice in this Commonwealth. If the verdict is guilty, the trial court is directed to impose sentence in compliance with the appropriate procedural rules.

The judgment of sentence is vacated and the case is remanded for resentencing. Jurisdiction is relinquished.

JOHNSON, Judge,

concurring.

I agree with my learned colleagues that the evidence was, indeed, sufficient to convict Bernard Yetsick of driving a motor vehicle while his operating privileges were under suspension, DUI related. I also agree that our Supreme Court has recently affirmed the mandatory requirement upon sentencing judges to permit allocution. Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d .918 (1989). I therefore agree that a remand for resentencing is required.

In this case, where we have addressed the only substantive issue raised by Yetsick and where the sentence upon a finding of guilt under 75 Pa.C.S. § 1543(b) is mandatory, I would not conclude that this case should otherwise be remanded. Yetsick did file timely post-verdict motions and the only issue raised in those motions was briefed and argued in the trial court. My colleagues are affording Yetsick more relief than he has sought, assuming the correct resolution by the trial court of the only substantive issue.

Yetsick asks that the case be remanded only for resentencing if the guilty verdict was without error. My colleagues would seemingly remand for the re-entry of the guilty verdict and the re-enactment of all proceedings that normally flow thereafter. Therefore, I can only concur.

      . The statute in question provides as follows:
      (b) Certain offenses.—Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of |1,000 and to undergo imprisonment for a period of not less than 90 days.
      75 Pa.C.S.A. § 1543(b).


author: POPOVICH, Judge: BROSKY, Judge,

text:
    587 A.2d 792
    COMMONWEALTH of Pennsylvania, Appellee, v. William C. MacBRIDE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1990.
    Filed March 15, 1991.

      S. Lee Ruslander, West Chester, for appellant.
    Nicholas J. Casenta, Jr., Asst. Dist. Atty., Downingtown, for Com.
    Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from judgment of sentence of the Court of Common Pleas, Chester County, where defendant was convicted by a jury on three counts of both simple assault and recklessly endangering another person. See 18 Pa.C. S.A. §§ 2701(a)(3) & 2705 (Purdon 1983). We reverse and remand for a new trial.

The facts of this case are as unusual as they were hotly contested by the parties at trial below. On the morning of Sunday, June 7, 1987, three individuals took to flight in a hot-air-balloon, their path, dictated by wind, leading them directly- over defendant’s residential property in Chester County, Pennsylvania. Defendant owned both a dog and a horse and was not unaccustomed to the sight of hot-air-balloons floating overhead nor with the terrified reaction displayed by his two animals when such occurred. As the balloons drew near, increased anxiety regularly required defendant to stow his horse in its stall. N.T. 3/14/88 at 79-82. On this particular morning, defendant was awakened by his wife who informed him that a balloon had passed over their barn. Defendant proceeded outside and spotted a balloon through the woods adjoining his property. The horse was noticeably “very excited[:] snorting, banging against the bars, so on ... [the] dog was totally a basket case.” N.T. 3/14/88 at 79. At this point defendant took a twelve-gauge shotgun and two shells from his house. Positioned on his porch, and, according to defendant, in an effort to attract the balloonists’ attention, he fired one shot from his hip at “right angles to the balloon” into honeysuckle and small trees fifty feet away. “The shot [was] on my property [said defendant,] ... [i]t was never more than, oh, waist high from the ground.” N.T. 3/14/88 at 80, 86.

Defendant testified that “[he] had been hollering at these balloons for four years” but was unable to get them to listen or look down. Thus, defendant testified that it was through use of the shotgun that he intended not to frighten the balloonists, but rather only to draw their attention. “[M]y intent was to get them to look down so I could tell them to go over my property at a respectable altitude so as not to harm my animals.” N.T. 3/14/88 at 82, 84-5. Defendant recalls the approximate height of the balloon as being seventy-five feet as it passed over his property and also recalls having motioned with the gun for them to gain altitude. N.T. 3/14/88 at 82-3. At the close of the incident one of the balloonists, Mr. Supplee, was heard to say: “all right, all right, we’re leaving.” He then proceded to switch the burners on high speed for maximum climb rate. N.T. 3/14/88 at 51, 26.

The incident is recounted somewhat differently by the passengers in the balloon. Mr. Supplee, a commercial pilot and owner of the balloon testified, first, that he had been preparing to land as the balloon passed over defendant’s property at a height of approximately 180 feet and at a distance of roughly 180 feet from defendant’s residence. N.T. 3/14/88 at 23, 31. He recalls the incident as follows:

[W]e saw someone come out of the house and point something up in the air, which at first we thought it was a stick. Then it was pointed in our general direct, [sic]
All of a sudden there was a shotgun blast. We could see the wads coming out of the shell directly on our flight path, a little bit higher than we were and a little bit ahead of us.
We watched. We could see the gun being reloaded. And a few seconds later another blast. This one was somewhat closer____ On the second blast we also could see these wads coming toward us.
After the second shot, I yelled, all right, all right; let’s get out of here, or something to that effect.
I was in deadly fear a third shot would be aimed directly at us. If one of those bullet [sic] ever hit the propane system, we would immediately become a fireball. All of us would be killed. The balloon would be blasted out of the sky.

N.T. 3/14/88 at 23, 26 (emphasis added). Significantly, Mr. Supplee testified on redirect that: “No, I never said that he shot directly at us.” N.T. 3/14/88 at 43. Nonetheless, the other balloonists testified to a like fear for their welfare. Mr. Redmond stated:

“I was a little bit frightened considering the fact that we had all that propane on board. It’s like a bomb, if it ever went off.”

Ms. Kahn stated:

I was terrified. I was so shocked that for the first shot I couldn’t believe that it was happening. It was sort of like this is—I could just could not believe it was happening. The second shot I believed it.

N.T. 3/14/88 at 48, 51.

The jury returned a verdict of guilty on each of six counts, three charging simple assault (one for each balloonist/victim), and three charging recklessly endangering another person (same). See 18 Pa.C.S.A. §§ 2701(a)(3) & 2705 (Purdon 1983). Defendant’s trial counsel, Mr. Kalmbach, timely filed post-trial motions which ultimately were dismissed for failure to file a supporting brief. Defendant, thereafter, and acting, pro se, filed motions in arrest of judgment and for a new trial. New counsel, Mr. Ruslánder, filed supplemental post-trial motions on defendant’s behalf. Post-trial briefs were also filed and a hearing was held on March 10, 1989. Eventually, defendant’s post-trial motions were denied and, on February 13, 1990, defendant was sentenced to two years probation and fined $350.00 plus the costs of prosecution. Sentence also included 200 hours of community services. On appeal, defendant makes numerous allegations of error; we need only address two for purposes of reversal.

Defendant first alleges that defense counsel was ineffective for failing to object contemporaneously to various remarks made by the prosecutor during closing arguments. Secondly, it is contended that the trial court erred for failure to grant a requested motion for mistrial by defense counsel.

Appellant’s claims must be considered against our supreme court’s recent expression of the limits placed on commentary by counsel:

[N]ot every intemperate remark or uncalled for remark by the prosecutor requires a new trial. As we have stated many times:
[C]omments by a prosecutor do not constitute reversible error unless the “unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” [citations omitted].

Commonwealth v. Yabor, 376 Pa.Super. 356, 546 A.2d 67 (1988) (citing Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531 (1986)). Furthermore, prosecutorial commentary will not be considered in isolation; rather, it must be evaluated in the context in which it occurs. See Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980). Accordingly, we consider the following statements by the prosecutor:

They all said why they were afraid. But [defense counsel] says, well, they didn’t , mention propane.
The police officer says, write down what happened. Some nut firing a gun at me in a balloon. You’re not going to say, a balloon, made out of liquid propane tanks, hoses going up in this different area. No they are going to give a one page summary of what happened.
Let’s discuss recklessly endangering.
The law says its disregard involves a gross deviation from the standard of care that a reasonable person would observe in the defendant’s situation. So if you have, pardon the expression, but if you have a nut firing a gun, you don’t say, well, he’s a nut, we forgive him for that. You look at what a reasonable person does.
We have a standard of conduct in this society, also property rights. People can fly over your property—
ARCO Go Patrol helicopter, police helicopters, Action News, planes, whatever, helicopters. Let’s take this example. Landowner A has a heart attack, falls down on his property, is rushed to the hospital, Southern Chester County Medical Center. They can’t take care of him. They don’t have adequate facilities. What do they do? They put him in a helicopter, fly him down to Philadelphia. They are cruising along. They make a big mistake, they cross over enemy lines, [defendant’s property]. His dog starts going crazy because it’s a helicopter. He gets the gun out—
[Defense counsel:] Objection. I do apologize but—
[The Court:] The objection is sustained.

N.T. 3/15/88 at 125-26, 133-34, 137 (emphasis added).

Defense counsel offered no contemporaneous objection(s) to the above-quoted first two excerpts. Nonetheless, at side-bar, and after closing arguments, defense objected and moved for a mistrial based upon the impropriety of the prosecutor’s continual inferences that defendant was a “nut” and a “liar.” N.T. 3/15/88 at 139. Both the objection and motion for mistrial were denied at trial and at post-trial review.

Appellant’s claimed ineffectiveness for failing to object can be dispensed with summarily. Objection, although not contemporaneous, occurred on the record and immediately subsequent to the prosecutor’s closing statements. Moreover, counsel’s objection was sufficiently specific—and its basis in the record undisputed—to apprise the trial judge of the matters complained of and to afford the opportunity for correction in the jury charge. See Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976) (timeliness must be assessed in light of the purposes served by the rule; where objection is delayed, yet properly recorded, and where its basis in the record uncontested, then belated objection may be considered timely); see also Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 n. 10 (1977). Accordingly, we hold that defense counsel’s objection to the above-cited remarks was timely and that appellant’s ineffectiveness claim lacks arguable merit. See Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989) (threshold inquiry in ineffectiveness claim is whether issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit).

Ineffectiveness notwithstanding, appellant asserts error in the denial of defense counsel’s motion for mistrial based upon the alleged impropriety of the prosecutor’s closing argument. Appellant contends that “the [above-cited] references impugned the character and reputation of the defendant and appealed to the emotions of the jurors ... [whereby producing] a verdict based upon emotion or passion rather than the evidence presented.” Appellant’s Brief at 52. In defense, appellee suggests that in neither passage does counsel directly comment on the defendant or refer to defendant as a “nut.” Appellee’s Brief at 34, 36-7.

Technically, perhaps appellee is correct. In the first passage the prosecution takes the perspective of how the victims hypothetically might have responded to a police request for a statement. Similarly, in the second instance, the prosecutor would appear to be explaining the reasonable person standard and, in so doing, makes the point that the personal idiosyncrasies of any and all defendants are irrelevant to this, an objective test of reasonableness. Cf. Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233, 234 (1983) (prosecutorial remarks tending not to implicate directly the defendant not sufficiently prejudicial to support new trial). Nevertheless, our task on review is not one confined solely to an exercise in semantics. Rather, we must consider the practical effect of the statements on the jurors’ ability to render an objective verdict.

These statements clearly can be taken to insinuate questionable if not a disturbed character. Nevertheless, according to the trial judge, they were “fair comment for describing the conduct of one who would fire a shotgun at a balloon which had transgressed solely by violating one’s airspace.” Trial Op. at 20. We will review this conclusion in light of our oft-repeated standard of prosecutorial commentary; namely, that a prosecutor must confine his/her argument to facts in evidence and legitimate inferences therefrom. See, e.g., Commonwealth v. Shain, 493 Pa. 360, 426 A.2d 589 (1981); Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978); Commonwealth v. Revty, 448 Pa. 512, 516, 295 A.2d 300, 302 (1972); see generally ABA Standards, The Prosecution Function, Section 5.8 (1971). As a corollary to this proposition, so too have we denounced statements of personal opinion offered by the prosecutor suggesting defendant’s guilt or otherwise stigmatizing a defendant through use of epithets. See, e.g., Commonwealth v. Anderson, 490 Pa. 225, 415 A.2d 887 (1980) (reference by prosecutor to defendant as an “executioner” involved in an “assassination” because the victim had “violated some code”); Commonwealth v. Capalla, 322 Pa. 200, 204, 185 A. 203, 205 (1936) (characterization of defendant as a “cold-blooded killer”); Commonwealth v. Baranyai, 296 Pa.Super. 342, 442 A.2d 800 (1982) (characterization of defendant as a “punk behind a badge,” a “Buford Pusser,” and a “Clint Eastwood” who used “Gestapo tactics”); Commonwealth v. Smith, 478 Pa. 76, 385 A.2d 1320 (1978) (prosecutorial characterization of defendant as a “vicious desperate killer who would kill for a nickel in this struggle”). Measured against these standards, we find the record devoid of evidence from which the jury could infer that defendant was a “nut” and, further, find use of this language stigmatizing.

We are not presented herein with an unexplained assault on the balloonists or an attempt to terrorize or do physical violence to them. Although we do not condone defendant’s use of force, the evidence is uncontradicted in that it supports an intent to draw the balloonists attention, perhaps even to frighten them, and to have them fly at a greater altitude while passing over defendant’s property. At most, the jury could draw the inference that defendant was a frustrated and, perhaps, reckless landowner who had been bothered by hot-air-balloons for years through the disruption caused to his animals. But to characterize defendant as a “nut” suggests more than reckless behavior because it insinuates that defendant is a mindless and dangerous individual who had no reason whatsoever for his conduct. Clearly, this inference is belied by the record which shows a landowner motivated by the rather unremarkable desire to protect his property. Accordingly, we find that the prosecutor improperly expressed his persoñal opinion of defendant’s character—and, indirectly, defendant’s guilt or propensity to act recklessly, cf. Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977) (predisposition commentary by prosecution improper)—and thereby asked the jury to draw deductions both unwarranted by the evidence, see, e.g. Shain, supra, and stigmatizing in nature. See, e.g. Smith, supra.

In the context of reviewing the denial of a motion for mistrial, once we conclude that the prosecutor’s commentary was improper we then ask whether the adverse ruling was marked by a flagrant abuse of discretion, i.e., whether the occurrence was so prejudicial as to deprive defendant of a fair and impartial trial. See Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127 (1983). We also must remain mindful that not every intemperate, uncalled for and improper remark made by the prosecutor demands a new trial. See Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); see also Yabor, supra.

Instantly, and viewed as a whole, see Smith, 490 Pa. 380, 388, 416 A.2d 986, 989, the record discloses not one isolated, albeit indirect, reference to defendant as a “nut,” but three repetitions of the same derogatory language. To compound matters, the prosecutor, speaking metaphorically, insinuated that defendant was so crazed as to shoot at a medical helicopter flying over his land. The intendiment is clear— the prosecution sought to portray defendant as a present and continual menace to society insofar as reckless conduct might become, or is, perhaps, the norm. The cumulative effect of this line of argument produced a highly prejudicial atmosphere at the close of trial. The remarks served no legitimate purpose and can be seen as merely a plea to inflame the passions and prejudices of the jury. See, e.g., Anderson, Capalla, Baranyai, and Smith, supra. Without a cautionary instruction or other circumstances militating against the prejudicial atmosphere at trial, the necessary and unavoidable result was an inherently unreliable verdict. Furthermore, we cannot say that the evidence establishing guilt was so overwhelming as to render the prejudicial effect of the prosecutorial misconduct harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 166 (1978). As such, defendant has been denied his right to a fair trial.

Judgment of sentence is reversed and a new trial is ordered.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring.

I concur with the majority’s conclusion that the case must be' remanded for a new trial; however, I rely upon a different challenge made by appellant than the one relied upon by the majority. During cross-examination of one of the investigating officers, the officer commented that appellant refused to talk to him after he had been read his Miranda rights. A short time later the officer again indicated that appellant refused to answer any questions at the station. It has been established that evidence of one’s silence or refusal to answer questions is reversible error. Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972), Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976). However, trial counsel made no objection at time of trial to what would appear to be objectionable references to appellant’s invocation of his Fifth Amendment right of silence. Appellant now claims ineffectiveness of counsel.

In a post-trial hearing appellant’s trial counsel indicated that the crux of appellant’s defense was that he had fired a warning shot parallel to the ground and not in the direction of the balloon. The prosecution’s version of the events was quite to the contrary and the case clearly hinged upon a question of which version to accept. Appellant’s trial counsel also indicated that they were trying to bolster appellant’s defense by establishing his willingness to cooperate with the police. Counsel offered no recollection of the exact reason he did not object to the police officer’s testimony but stated that he usually would not ask for a curative instruction if he felt that it would highlight the offending testimony. In light of the above precedent I believe the remarks of the officer were objectionable and a sound basis for the granting of a new trial. Thus, I believe that the failure to object constitutes ineffective assistance of counsel.

To the extent the case hinged naturally upon an adoption of one of a competing version of the events, and credibility was of paramount importance, the testimony offered by the police officer was very prejudicial to appellant’s defense. It could have led the jury, to believe that appellant was not being completely honest with the officers or that he was withholding pertinent facts. The potential influence upon the jury seems obvious. Thus, I too believe appellant is entitled to a new trial.

      . Preliminarily, we find counsel’s motion timely and made in accordance with Pa.R.Crim.P. 1118(b) which provides:
      When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed.

      (emphasis added). A fair reading of the rule suggests that objection is timely where, as here, that which is objectionable occurs in the prosecutor's closing argument and defense counsel moves for mistrial immediately subsequent thereto.

      . Judge Gavin does not pass on the above-cited second remark on grounds of waiver by defense counsel for failure to specify the point in controversy. See Pa.R.A.P. 2117(a)(4). We agree with appellant and find specific reference made to the claimed offensive language in appellant's supplemental post-trial brief. Filed 6/2/89 at 11.

      . Taken in context, it is apparent that the prosecution used the term “nut” in its current vernacular to mean insane or unbalanced in mind. See Webster’s Third New International Dictionary 1552 (1976) ("nut ... 8 b ... one who is or seems to be mentally unbalanced”).

      . The jury was not instructed as to the crime of aggravated assault, see 18 Pa.C.S.A. § 2702 (Purdon 1983), and properly so; for if defendant had intended to do physical violence to the balloonists, he clearly had the opportunity to do so. Specifically, defendant noted that a blind man could have hit the balloon using a shotgun. N.T. 3/14/88 at 84.