author: ROWLEY, President Judge:

text:
    668 A.2d 1151
    The CROATIAN ROMAN CATHOLIC CONGREGATION OF the HOLY TRINITY CHURCH, AMBRIDGE, BEAVER COUNTY, PENNSYLVANIA, an Unincorporated Association, By and Through, Charles A. CVITKOVIC, Alfonso Vlasic, Paul Poulos, Mary Vucetich, Joseph B. Durbin, John J. Nelko, and Alan L. Evanish, Trustees ad Litem, Appellants, v. The Most Reverend Donald W. WUERL, Bishop of the Roman Catholic Diocese of Pittsburgh, Ernest D. Preate, Attorney General, and Nancy Sobolevitch, Court Administrator. The CONGREGATION OF SAINT MARY’S ROMAN CATHOLIC CHURCH OF NEW CASTLE, LAWRENCE COUNTY, PENNSYLVANIA, an Unincorporated Association, By and Through, Dr. Joseph L. MORETTO, Paul A. Zarilla, Shirley O’Connor, Thomas C. Elliott, and Edwin G. Stevens, Trustees ad Litem, Appellants, v. The Most Reverend Donald W. WUERL, Bishop of the Roman Catholic Diocese of Pittsburgh, Court Administrator’s Office of Pennsylvania, and The Attorney General of Pennsylvania. The ROMAN CATHOLIC CONGREGATION OF the DIVINE REDEEMER OF AMBRIDGE, BEAVER COUNTY, PENNSYLVANIA, an Unincorporated Association, By and Through, Leo GRANDOVIC, Michele L. Warmbrodt, Milton Hertneky, Richard Halicek, and Anna Marie Dzubak, Trustees ad Litem, Appellants, v. The Most Reverend Donald W. WUERL, Bishop of the Roman Catholic Diocese of Pittsburgh, Nancy Sobolevitch, Court Administrator, and Ernest Preate, Attorney General.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1995.
    Filed Dec. 18, 1995.

      David K. McMullin, Pittsburgh, for appellants.
    William A. Steidle, Jr., Pittsburgh & Phillip J. Murren, Harrisburg, for The Most Reverend Donald W. Wuerl, appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and CIRILLO, JJ.
   ROWLEY, President Judge:

These consolidated appeals have been filed by three congregations of Roman Catholic churches whose parishes have been suppressed by appellee The Most Reverend Donald W. Wuerl, Bishop of the Roman Catholic Diocese of Pittsburgh: at No. 122 Pittsburgh 1995 — the Croatian Roman Catholic Congregation of the Holy Trinity Church, Ambridge, Beaver County, Pennsylvania, an unincorporated association, by and through, Charles A. Cvitkovic, Alfonso Vlasic, Paul Poulos, Mary Vucetich, Joseph B. Durbin, John J. Nelko, and Alan L. Evanish, trustees ad litem; at No. 254 Pittsburgh 1995 — the Congregation of Saint Mary’s Roman Catholic Church of New Castle, Lawrence County, Pennsylvania, an unincorporated association, by and through, Dr. Joseph L. Moretto, Paul A. Zarilla, Shirley O’Connor, Thomas C. Elliott, and Edwin G. Stevens, trustees ad litem; and at No. 733 Pittsburgh 1995— the Roman Catholic Congregation of the Divine Redeemer of Ambridge, Beaver County, Pennsylvania, an unincorporated association, by and through, Leo Grandovic, Michele L. Warmbrodt, Milton Hertneky, Richard Halicek, and Anna Marie Dzubak, trustees ad litem.

The cases involving the parishes of Holy Trinity and Divine Redeemer were decided by the Honorable Robert E. Kunselman of the Court of Common Pleas of Beaver County. In both cases, Judge Kunselman determined that the appellants in those cases did not have standing to maintain the actions because the parishes no longer existed in light of the Decrees of Suppression. Judge Kunselman therefore sustained appellee’s preliminary objections and dismissed the complaints. The case involving the parish of St. Mary’s was decided by the Honorable John Q. Stranahan, Specially Presiding, of the Court of Common Pleas of Lawrence County. Judge Stranahan, in granting appellee’s motion for summary judgment, also found that the appellants in that case had no standing to maintain an action. Judge Kunselman and Judge Stranahan further determined that the decision of whether to suppress a parish is an ecclesiastical matter which is not reviewable by civil courts. We agree, and accordingly, we affirm the orders sustaining the preliminary objections and dismissing the complaints at Nos. 122 and 733 Pittsburgh 1995 and the order granting summary judgment at No. 254 Pittsburgh 1995.

Before discussing the merits of the issues presented by these cases, we, like Judge Stranahan, wish to acknowledge the obvious devotion that the parishioners of the suppressed parishes have for their churches. See Trial Court Opinion (Stranahan, J.) at 3. That devotion, however, can neither confer upon the civil courts jurisdiction over an ecclesiastical matter nor cloak appellants in these cases with standing where none exists. Furthermore, as stated by Judge Stranahan, “It is [] not this devotion which guides this Court. We are compelled to follow the law the Commonwealth has set forth by statutes as interpreted in the case law, and it is with this in mind that we turn to the issues presently before this Court.” Id. at 4. We add that we must also act within the parameters set by the Establishment and the Free Exercise Clauses of the First Amendment of the United States Constitution and by Article I, Section 3 of the Pennsylvania Constitution.

Appellants first argue that the trial courts erred in determining that they do not have standing to pursue this matter. That question has already been decided by our Supreme Court in the companion cases of Canovaro v. Brothers of the Order of Hermits of St. Augustine, 326 Pa. 76, 191 A. 140 (1937) (dismemberment of a parish), and Post v. Dougherty, 326 Pa. 97, 191 A. 151 (1937) (suppression of a parish). In Canovaro, the Court held the following:

Under the church law the effect of dismemberment was to cause the parish to cease to exist and to transfer its members to adjoining parishes. There were no longer any members of the original parish. The order of dismemberment was binding on the parish members. Division, dismemberment, or suppression of parishes, and the effect thereof on membership are purely ecclesiastical matters, dependent upon the church law as administered by the appropriate authorities and tribunals. The effect of the dismemberment of the parish and the transfer of appellants’ membership therefrom to other parishes was to deprive them of all rights as members in the church property of the parish from which they were transferred. Church membership is an ecclesiastical matter, not temporal. There is no property right in membership, and there could be no property rights in lay members except through their membership in the congregation.

Canovaro, 326 Pa. at 84-85, 191 A. at 145 (citation omitted). Similarly, the Court in Post stated:

[A]ny rights which the laity may have in church property can arise only out of membership in the congregation. Also that membership in a congregation and the division, dismemberment, or suppression of parishes are purely ecclesiastical matters subject to the church rules and controlled by the decisions of the appropriate church tribunals in so far as they do not contravene the law of the land. The act of the Holy See in suppressing the Holy Family Parish was a proper exercise of the jurisdiction conferred by the canons upon the Holy See acting through the Sacred Congregation of the Council. The reasons for its suppression, their existence in fact and sufficiency to warrant the extinction of the parish are matters for the Holy See; it alone had final and exclusive jurisdiction, and its decision must be accepted as binding on this court. We do not review the merits of a decision rendered in an ecclesiastical matter by the appropriate church tribunal or official.

Post, 326 Pa. at 101-02, 191 A. at 153. The Supreme Court’s decisions in Canovaro and Post preclude the exercise of jurisdiction over these cases.

Nonetheless, appellants argue that the above cases are not controlling because they claim to be proceeding as congregations rather than as parishes. They contend that a congregation can still exist after a parish is suppressed and that a congregation would have standing to bring an action to protect its alleged property rights. We disagree that there is a relevant distinction between a congregation and a parish so as to preclude application of the holdings in Canovaro and Post to these cases, especially considering that the Court in those cases used the term “congregation.”

Additionally, appellants contend that Canovaro and Post are not controlling because an earlier version of the Code of Canon Law was in effect when those cases were decided. Appellants do not explain, however, why the present version of the Code of Canon Law would compel a different result in these cases, other than to reiterate their position that a parish and a congregation are separate entities. We have already discussed that contention.

Appellants also contend that the above cases are distinguishable because appellee violated numerous provisions of the Code of Canon Law. As stated by Judge Kunselman, however, appellee is the appropriate church official to make a decision in an ecclesiastical matter, and we cannot, under Canovaro and Post, interfere with that decision.

Appellants also contend that this Court is bound by a decision of the Apostolic Signatura, the highest tribunal of the Roman Catholic Church which, they assert, establishes a congregation’s standing, after suppression of a parish, to challenge that suppression. We disagree, first, that this Court is bound by a decision of a church tribunal. Moreover, Canon 221, relied upon by appellants to support their argument that they have standing to proceed in civil court, states, in relevant part, “The Christian faithful can legitimately vindicate and defend the rights which they enjoy in the Church before a competent ecclesiastical court in accord with the norm of law.” Canon 221, § 1 (emphasis added). Appellants’ contention that the above provision confers standing upon them to proceed in civil court is unavailing in light of the clear language of that Canon.

For the above reasons, we affirm the trial courts’ orders.

Orders affirmed.

      . Appellants named the Attorney General of Pennsylvania as a defendant due to their allegation of the unconstitutionality of a statute, 10 P.S. § 81, a question which the trial courts did not answer. It is not clear from the record why the Court Administrator of Pennsylvania was also named as a defendant, and, at oral argument, appellants' counsel was unable to provide any enlightenment in that regard. Neither the Attorney General nor the Court Administrator have filed briefs in this appeal.

      . We adopt the statements of facts and procedure as set forth by the trial courts which decided these cases. See Opinion (Kunselman, J.), 12/14/94 (No. 122 Pittsburgh 1995); Opinion (Stranahan, J.), 1/10/95 (No. 254 Pittsburgh 1995); Opinion (Kunselman, J.), 3/27/95 (No. 733 Pittsburgh 1995).


source: Caselaw Access Project

author: FORD ELLIOTT, Judge:

license: Public Domain

text:
    668 A.2d 1154
    Charles J. KELLY and Linda J. Kelly, Appellants, v. STATE FARM INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 13, 1995.
    Filed Dec. 18, 1995.

      Marcia L. Cooper, Pittsburgh, for appellants.
    Thomas A. McDonnell, Pittsburgh, for appellee.
    Before CIRILLO, FORD ELLIOTT and HESTER, JJ.
   FORD ELLIOTT, Judge:

Appellants come before us challenging an order of the Court of Common Pleas of Allegheny County Civil Division, entered December 7, 1994, in which appellants’ petition to vacate an arbitration award was denied. We find that the supreme court’s holding in Hall v. Amica, 588 Pa. 387, 648 A.2d 755 (1994), is dispositive of the issue of jurisdiction, and our recent decisions in Chambers v. Aetna, Casualty & Surety Co., 442 Pa.Super. 155, 658 A.2d 1346 (1995), and Boyle v. Erie Insurance Co., 441 Pa.Super. 103, 656 A.2d 941 (1995), allocatur denied, 542 Pa. 655, 668 A.2d 1120, (filed September 18, 1995), are dispositive of the substantive issue. As a result, we reverse the trial court’s order and vacate the arbitrator’s award, finding instead that appellant is entitled to underinsurance motorist coverage from State Farm.

The underlying facts, to which the parties have stipulated, can be briefly recounted. Eleven-year-old Michelle Kelly was killed when a bicycle on which she was riding struck a pick-up truck driven by John Alberti. Michelle’s parents, appellants herein, brought wrongful death actions on behalf of Michelle’s estate against Mr. Alberti, the bicycle manufacturer, and the bicycle’s owner. Each of the defendants was covered by a policy of insurance. Mr. Alberti’s insurance policy, with Erie Insurance, provided for $50,000 liability. Damages to Michelle’s estate were projected by appellant’s expert at approximately $600,000. Michelle’s parents carried stacked underinsurance motorist coverage in the total amount of $30,000 with State Farm Insurance Company (State Farm), appellee herein.

After extensive discovery, the parties entered into a settlement agreement, in which they agreed to settle for the sum of $64,500. Prior to accepting the settlement offer, however, counsel for Michelle’s estate contacted State Farm to place it on notice of the proposed settlement, and to request its consent to the settlement, or, in the alternative, to request that it substitute its own draft for the amount of the proposed settlement in order to protect its subrogation interest. State Farm consented to the settlement and waived its subrogation rights; however, State Farm denied underinsured benefits to Michelle’s estate. (Joint factual stipulations, appellants’ brief at Appendix A-2.)

According to appellants’ Petition to Vacate the Arbitration Award, State Farm denied appellants’ claim to underinsured motorist benefits because of appellants’ alleged failure to comply with the terms of an “exhaustion clause” in their policy. That clause provided:

There is no coverage for bodily injury arising out of the ownership, maintenance or use of an underinsured motor vehicle until:
1. The limits of liability of all bodily injury liability bonds and policies that apply have been used up by payment of judgments or settlements to other persons; or
2. Such limits of liability or remaining parts of them have been offered to the insured in writing.

State Farm policy, p. 13, R.R. at 52a (emphasis in original). According to State Farm, this clause required appellants actually to receive the underlying tortfeasor’s liability limits as a precondition to receiving underinsured motorist benefits under their policy with State Farm. (Appellee’s brief at 8.) Because Mr. Alberti carried $50,000 of insurance, and because his portion of the settlement amounted to only $12,500, State Farm argued that appellants had failed to meet the precondition and were thus not entitled to underinsured benefits.

When State Farm denied appellants’ claim, the dispute was submitted to arbitration pursuant to the terms of the policy. The policy provided that resolution of disagreements regarding entitlement to underinsured coverage be submitted to arbitration, and that “The Pennsylvania Uniform Arbitration Act, as amended from time to time, shall apply.” (Id. at 15, R.R. at 54a.) Accordingly, a panel of arbitrators was selected. In their Petition to Vacate, appellants alleged that the sole issue presented to the panel was:

whether [appellants] were required to actually exhaust the liability coverage available to the underlying tortfeasor (Mr. Alberti), or whether the exhaustion clause was void as against public policy, but nevertheless satisfied by giving State Farm credit for the full amount of coverage available to the tortfeasor in accordance with the decision of Sinko v. CNA Insurance, 141 P.L.J. 413 (C.C.P. Allegheny Cty., 1993) (Strassburger, J.).

Petition to Vacate, R.R. at 9a. By a vote of two (2) to one (1), the arbitration panel found in favor of State Farm. (R.R. at 3a.)

As already noted, appellants then petitioned the Court of Common Pleas of Allegheny County to vacate the award, alleging that the award was contrary to law and against the public policy of the Commonwealth. (Petition to Vacate Arbitration Award, R.R. at 9a-10a.) The trial court denied the petition by order dated December 7, 1994. In its memorandum in support of the December 7 order, the trial court gave two reasons for denying the petition. First, the trial court concluded that it had no jurisdiction to review a claim that an award of arbitration was “contrary to law.” (Trial court memorandum, 12/5/94 at 4, R.R. at 105a.) Second, the trial court found that “even if one could properly address the merits of [appellants’] claim on the applicable law, it is not at all clear that the arbitrators have violated precedent.” (Id. at 5, R.R. at 106a.) It is from this denial of their Petition to Vacate that appellants bring the instant appeal. We shall, therefore, next address the trial court’s reasons for denying the petition seriatim.

On the issue of a trial court’s jurisdiction to review an arbitration award, we agree with appellant that Hall v. Arnica Mutual Insurance Co., 538 Pa. 337, 648 A.2d 755 (1994), is dispositive. In Hall, the supreme court affirmed this court’s holding that “a court has the power to review an arbitration award which is based on the declaration of an insurance policy clause to be void as against public policy----” Id. at 758, 648 A.2d at 758. The Hall court stated that its finding on the issue of jurisdiction was controlled by its recent decision in Azpell v. Old Republic Insurance Co., 526 Pa. 179, 584 A.2d 950 (1991). The Azpell court noted that, in Davis v. Government Employees Insurance Co., 500 Pa. 84, 454 A.2d 973 (1982), it had adopted the following rule, announced by this court in United Services Automobile Association Appeal, 227 PaiSuper. 508, 516, 323 A.2d 737, 741 (1974):

‘Thus the rule, to which all the cases conform, is that where the application or construction of the [insurance] clause is at issue the dispute is within the exclusive jurisdiction of the arbitrators; the courts will take jurisdiction only where the claimant attacks a particular provision of the clause itself as being contrary to a constitutional, legislative, or administrative mandate, or against public policy or unconscionable.’

Azpell, supra at 182-84, 584 A.2d at 951-52 (emphasis added), quoting United Services, supra at 516, 323 A.2d at 741 (the “Davis ” rule). State Farm argues that the “Davis ” rule, although adopted by the Hall and Azpell courts, is inapplicable to the instant case because the rule was promulgated under the 1927 Pennsylvania Arbitration Act which is not applicable instantly. While we agree with State Farm that the 1927 Act is not applicable, we do not agree with State Farm’s conclusion that the rule is not applicable. We base our disagreement on the supreme court’s analysis in Azpell and in Hall.

The Azpell court was called upon to determine if an arbitration award of $15,000 of uninsured motorist benefits to a police officer who was injured by an uninsured driver while the officer was on duty was violative of the public policy limiting the officer’s remedy to the Workmen’s Compensation Act. Id. at 180-82, 584 A.2d at 951. In making its determination, the court noted the continued validity of the “Davis ” rule, cited supra, but then found it inapplicable. As the Azpell court stated:

While we adhere to the Davis rule, we find it inapplicable in this appeal.
In Dams, we were asked to review a clause of the insurance policy which the insured claimed was contrary to the existing uninsured motorists coverage law (UML). We then reviewed the UML and determined that the insurance clause was not contrary to any existing statute and affirmed the denial of uninsured motorists benefits. Our review was limited to a comparison and interpretation of an insurance contract provision with a particularly promulgated statute, as opposed to reviewing a monetary award.
In this instance, the Superior Court did not find any contract provision contrary to public policy but rather, held that the award itself was contrary to public policy. This result oriented analysis is exactly the type of review the legislature was attempting to avoid by promulgation of the Uniform Arbitration Act. In fact, under the previous 1927 Act, the trial court was authorized to vacate arbitration awards which were contrary to the law. However, this provision was omitted in the existing Act.

Id. at 183-84, 584 A.2d at 952 (emphasis added). It is thus clear that the “Davis” rule applies to the Act that governs instantly, since the same Act was at issue in Azpell, and in Hall, which, as noted supra, was controlled by Azpell. See Azpell, supra at 180-82, 584 A.2d at 951; Hall, supra at 339-40, 648 A.2d at 756. Because the public policy challenge in the instant case was a challenge to a contract provision, as in Hall, and not a challenge to an award, as in Azpell, we find that the Court of Common Pleas had jurisdiction to hear this challenge.

Turning next to the merits of appellants’ claim, we find this court’s recent decisions in Boyle, supra, and Chambers, supra, dispositive. In Boyle, the Boyles settled their claims arising from a motor vehicle accident with the two defendants, Speelman and Hitchcock. The Speelman claim was settled for the limits of Speelman’s liability coverage; however, the Hitchcock claim was settled for only fifty percent (50%) of Hitchcock’s liability coverage. At the time of the accident in Boyle, as is the case instantly, Section 1731 of the Motor Vehicle Financial Responsibility Law mandated uninsured and underinsured motorist coverage. When the Boyles brought a claim for underinsurance against their insurance carrier, however, the claim was denied. In denying the claim, the carrier, Erie Insurance, relied upon the “exhaustion clause” in the Boyles’ policy, which provided:

With respect to underinsured motor vehicles, we will not be obligated to make any payment until the limits under all bodily injury insurance policies and liability bonds applicable at the time of the accident, including other than motor vehicle insurance, have been exhausted by payment of settlements or judgments.

Boyle, supra at 106, 656 A.2d at 942.

The Boyle court first addressed the issue of whether “exhaustion clauses” were per se violative of public policy. Following this court’s holding in Kester v. Erie Ins. Exchange, 399 Pa.Super. 206, 582 A.2d 17 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991), the Boyle court held that “exhaustion clauses are not per se invalid.” Boyle, supra at 107, 656 A.2d at 943.

The Boyle court then turned to interpreting the language of the exhaustion clause so as to effect the legislative mandate of the Motor Vehicle Financial Responsibility Law [MVFRL], as required by the “Davis ” rule, supra:

To enforce the policy language strictly would have the effect of failing to provide the protection intended by the legislature for an insured driver. In some cases it may prevent an injured insured from accepting a reasonable, third party settlement and require that the third party litigation be pursued to final judgment. This would delay recovery when prompt payment was needed, would lessen the insured’s recovery by requiring him or her to pay additional costs, and would unnecessarily burden the judicial system....
On the other hand, an exhaustion clause must be interpreted to provide protection to an insurance company against a demand by its insured to fill the ‘gap’ after a weak claim has been settled for an unreasonably small amount. The statutorily mandated coverage for underinsured motorist benefits was not intended to permit the insured absolute and arbitrary discretion to determine how payment should be apportioned between his or her own insurance company and the tortfeasor’s liability carrier....

Id. The Boyle court concluded:

[T]he conflicting interests of insured and insurer can best and most fairly be served by construing the exhaustion clause in this case as a ‘threshold requirement and not a barrier to underinsured motorist insurance coverage.’ ... Thus, when the insureds settled their claim against the tortfeasor’s liability carrier for less than policy limits, the underinsured motorist carrier was entitled to compute its payment to its injured insureds as though the tortfeasor’s policy limits had been paid.... Under this view, the insureds will not be allowed underinsured motorist benefits unless their damages exceed the maximum liability coverage provided by the liability carriers of other drivers involved in the accident; and their insurer will, in any event, be allowed to credit the full amounts of the tortfeasors’ liability coverages against the insureds’ damages.

Id. at 109, 656 A.2d at 943-44 (citations omitted). Accord Chambers v. Aetna Casualty & Surety Co., 442 Pa.Super. 155, 658 A.2d 1346 (1995).

Because we find that Boyle and Chambers are dispositive on the issue of how the exhaustion clause in the instant case should be interpreted so that it does not violate the legislative mandate of the MVFRL, we find that the clause must be interpreted so as to give State Farm “credit” for the $50,000 of liability coverage carried by Mr. Alberti, before appellants are entitled to underinsurance coverage. The parties stipulated that Michelle’s estate suffered damages of approximately $600,000; therefore, appellants should be entitled to the full $30,000 of underinsurance coverage they carried under their two insurance policies with State Farm.

Accordingly, we reverse the order of the trial court denying appellant’s petition to vacate the arbitration award, and we remand to the trial court for disposition consistent with this memorandum. Jurisdiction is relinquished.

      . The record does not indicate, nor does this appeal involve, the limits of liability insurance carried by the bicycle manufacturer and the bicycle owner.

        . 42 Pa.C.S.A. §§ 7301-7320, Subchapter A.

      . This section of the statute was amended in 1990 to allow insureds to opt for such coverage; however, the statute still requires insurers to offer the coverage.

      . We note the excellent analysis engaged in by the Court of Common Pleas of Lycoming County, Clinton W. Smith, J., in May v. State Farm Mutual Automobile Insurance Co. et at., No. 89-01,625, September 3, 1991. The May opinion addresses both of the issues before us instantly and involves the identical State Farm "exhaustion” clause. For a thorough discussion of the way in which State Farm’s clause can be read as broadly as Erie's clause in Boyle, and is therefore likewise subject to judicial scrutiny, see May, supra at 26-30, appellants' brief, Appendix A-3. May was relied upon by appellants instantly, and by appellants in Chambers. May contains an excellent discussion of the issues as they have been addressed in other jurisdictions as well.


author: OLSZEWSKI, Judge:

text:
    668 A.2d 1158
    COMMONWEALTH of Pennsylvania v. Verne R. WOODRUFF, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 25, 1995.
    Filed Dec. 19, 1995.

      Helen A. Haglich, Assistant Public Defender, Towanda, for appellant.
    Stephen G. Downs, Jr., Assistant District Attorney, Towanda, for Commonwealth, appellee.
    Before DEL SOLE, FORD ELLIOTT and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This appeal is from an order sentencing appellant entered in the Court of Common Pleas of Bradford County on August 1, 1994. We affirm.

On June 24, 1994, appellant Verne Woodruff was tried and found guilty by a jury of driving under the influence of alcohol (3 counts), simple assault, and disorderly conduct. In addition, appellant was found guilty by the court of the summary offenses of harassment, use of multiple beam lighting equipment, and restriction on consumption of alcoholic beverages. Then, on August 1, 1994, appellant was sentenced to a total of one to four years of imprisonment, and ordered to pay fines and statutory costs, and to undergo drug and alcohol treatment. This appeal follows.

On appeal, appellant raises two issues: (1) whether the evidence was sufficient to support the conviction of driving under the influence of alcohol and (2) whether the trial court’s instruction to the jury regarding “actual physical control of the movement of a motor vehicle” for such crime was proper. We hold the evidence to be sufficient and the jury instruction proper, and thus affirm the order sentencing appellant.

[1] Appellant’s first claim, that the evidence was insufficient to support his' conviction of driving under the influence, fails. In reviewing a sufficiency claim, our standard of review is well settled:

,We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of evidence.

Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990), aff'd, 531 Pa. 42, 611 A.2d 175 (1992); see also Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992).

The evidence, viewed in the light most favorable to the Commonwealth, is as follows: On the evening of April 14, 1993, appellant purchased between twelve and twenty-four cans of beer at° Friedenshutten, a combination restaurant and convenience store. . Then, appellant drank several of the cans of beer and apparently passed out. In the early hours of April 15, 1993, appellant was found.in his automobile along the side of Route 6 in Wyalusing Township, Pennsylvania. A member of a volunteer ambulance crew found him in a semi-slumped position, smelling of alcohol. The automobile was located approximately fifty yards west of the Friedenshutten. The ambulance crew member notified the police and watched appellant until the police arrived. State police troopers Kern and Salandro arrived on the scene at approximately 1:15 a.m. to find appellant’s vehicle on the paved berm (4 to 5 feet in width) of the road, with the driver’s side tires protruding over the fog lines into the lane of traffic by approximately one tire-length. The engine of the automobile was running and its high beam lights were activated. Appellant was seated behind the steering wheel, slumped down with his chin on his chest, and sleeping. Further, the officers noted that between 12 and 24 beer cans were located in the car, some empty, some full. Accordingly, the officers had to rouse appellant several times in order for him to respond to their questions.

After appellant had awakened, he required assistance to emerge from the car. Appellant’s eyes were bloodshot, his speech was slurred, and his gait was unsteady. Then, appellant was given and failed two field sobriety tests. Hence, the officers placed appellant under arrest for Driving Under the Influence of Alcohol. After appellant was placed under arrest, the police asked appellant whether he wanted one of the officers to move his automobile immediately or have it towed to another location later, because it presented a hazard to other motorists. Appellant elected for the officers to move his car at that moment. Accordingly, Officer Salandro removed the automobile from the berm of the road and drove it across the road to a large gravel parking lot. Next, the officers took appellant to Memorial Hospital in order to test his blood-alcohol level. Before appellant’s blood was drawn, he struggled as he was un-handcuffed and kicked a nurse in her leg and stomach. Appellant’s blood was subsequently drawn at 2:05 a.m. and found to include .24% alcohol by weight. After appellant’s blood was drawn, he resisted police efforts to re-handcuff him and kicked Trooper Kern in the groin area before he could be subdued.

Appellant challenges the sufficiency of evidence with respect to the “actual physical control” element of the driving under the influence of alcohol crime. Appellant was convicted of the following three subsections of 75 Pa.C.S.A. § 3731, Driving Under the Influence of Alcohol:

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving: ...
(4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater; or
(5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person’s breath,- blood or urine, which sample is:
(i) obtained within three hours after the person drove, operated or was in actual physical control of the vehicle.

75 Pa.C.S.A. § 3731(a)(1), (4), (5)(i). Each of the above subsections requires that the Commonwealth prove two elements beyond a reasonable doubt: (1) defendant was driving, operating or in actual physical control of the automobile (2) while he was under the influence of alcohol that rendered him incapable of safe driving or if his blood alcohol level is 0.10% or greater while driving or within 3 hours thereafter. Id.; Commonwealth v. Byers, 437 Pa.Super. 502, 505, 650 A.2d 468, 469 (1994); Commonwealth v. Proctor, 425 Pa.Super. 527, 530, 625 A.2d 1221, 1223 (1993), alloc, denied, 535 Pa. 661, 634 A.2d 223 (1993). Appellant does not contest the sufficiency of the evidence concerning the second element of the three counts for which he was convicted, but rather questions the sufficiency of the evidence under the first element which is common to each subsection, ie., that he was driving, operating or in actual physical control of the automobile. We disagree.

We find that appellant was in “actual physical control” under the statute when he was found by the police. Our precedent indicates that a combination of the following factors is required in determining whether a person had “actual physical control” of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle. Byers, 437 Pa.Super. at 505, 650 A.2d at 469. More specifically, the suspect location of an automobile “supports an inference that it was driven, ... a key factor in the finding of actual control.” Id. Appellant was found sleeping in his automobile on the berm of a road, with the engine running and his high beam lights activated, while a portion of his car encroached upon the road. Further, he was not found in the parking lot of the Friedenshutten where he purchased the alcohol, but alongside the road, away from such establishment. The facts of the instant case are analogous to Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987), where we held that the defendant had “actual physical control” where he was found slumped across the front seat of his car which was located on the berm of a road, with the motor running and the lights on. Id. In Crum, we also noted that no observation was necessary that the defendant’s car was in motion. Id. at 113, 523 A.2d at 801. Further, in Commonwealth v. Leib, 403 Pa.Super. 223, 588 A.2d 922 (1991), we held evidence sufficient to find that defendant had “actual physical control” of his vehicle where he was found asleep behind the wheel of his vehicle located in the middle of a road, with his keys in the ignition. Id. The facts of the instant case mirror these cases with respect to the finding of “actual physical control” since appellant was found sleeping at the wheel of his car, with the engine running while the car was located on the berm of the road. Consequently, we hold that there was sufficient basis under the above factors for the jury to have reasonably found that appellant was in control of his automobile while driving under the influence of alcohol as prohibited by 75 Pa.C.S.A. § 3731(a)(1), (4) and (5)(i). Crum, supra, Leib, supra.

Appellant argues, however, that Byers requires us to find otherwise. In Byers, we held that the evidence was not sufficient to find “actual physical control” where the defendant was found intoxicated inside his automobile, which was located in the bar parking lot where he purchased his alcohol, with the engine running and the headlights turned on. Byers, 437 Pa.Super. 502, 650 A.2d at 468. The defendant in Byers did not move the car from the parking lot where he had been drinking and thus did not pose a threat to public safety. Id. at 507, 650 A.2d at 470. The facts of the instant case, however, are clearly distinguishable as appellant was found in his automobile along the side of a road, away from the establishment where he had purchased the beer. Therefore, we may infer that appellant drove his car to the spot where he was eventually found by the police while under the influence of alcohol, which clearly presents a threat to public safety. Id. at 505, 650 A.2d at 469. Further, public safety was endangered by the encroachment of appellant’s car onto the roadway. See Commonwealth v. Farner, 90 Pa.Cmwlth. 201, 494 A.2d 513 (1985). Consequently, we find that Byers does not support appellant’s claim that the evidence was insufficient to hold appellant in “actual physical control” of the auto, but instead supports our holding that such evidence was sufficient.

Appellant’s second claim, that the jury instruction regarding the first element of the driving under the influence of álcohol, is without merit. The trial court charged the jury with the following instruction for this element:

COURT: ... The crime of driving under the influence can be committed, not only by a person who literally drives a vehicle, but also [by] one who operates or is in actual physical control of the movement of a vehicle. A person does not drive, unless he actually has the vehicle moving, however, a person may operate or be in actual physical control of the movement of a standing vehicle. These terms are broader than the term drive. They cover certain situations where a person, under the influence, is a distinct threat to public safety, even though he is not actually driving at the time. Thus, a person operates or [is] in actual control of a motor vehicle, if he is in actual physical control of either the machinery of the vehicle or of the management of the movement of the vehicle itself.
You may consider circumstantial evidence in determining whether the defendant was driving, operating or in actual physical control of the movement of a vehicle. Factors that you may consider in determining whether the defendant was in actual control of the movement of a vehicle are[:] ... where the vehicle was located, whether the engine was running, whether the lights were on, whether the defendant was located or seated in the vehicle and, specifically, whether he was seated behind the steering wheel and, generally, whether the defendant had control and management of the vehicle. The Commonwealth need not prove that the vehicle was actually in motion.

N.T., 6/24/94 P.M. at 36-37. Trial courts have broad discretion in phrasing jury instructions and “can choose [their] own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Commonwealth v. Jacobs, 586 Pa. 402, 412, 639 A.2d 786, 791 (1994). Our standard in reviewing jury instructions is to reverse only where there has been an abuse of discretion or an inaccurate statement of the law. Id.; see also Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1278, 1274 (1990).

In its charge to the jury, the trial court did not err with respect to the first element of the driving under the influence of alcohol crime. As discussed earlier, the first element common to the three counts of the crime for which appellant was charged is that the defendant was driving, operating, or in actual physical control of the automobile. 75 Pa.O.S.A. § 3731(a)(1), (4) and (5)(i); Byers, 437 Pa.Super. at 505, 650 A.2d at 469; Proctor, 425 Pa.Super. at 529, 625 A.2d at 1223. Appellant claims that the trial court eired in (1) not including in its instruction regarding “actual physical control” the following factors: whether appellant was sleeping, whether he posed a safety threat to others, and whether he was in a parking lot; and (2) not stating that it was not dispositive that the motor was running and the headlights were turned on. Appellant’s brief at 10-11, The first paragraph of the instruction given in the instant case cited above, however, comports exactly to the current version of Pennsylvania’s Suggested Standard Jury Instructions. See Pa.SSJI (Grim.) 17.378XC (1991). Moreover, the 1985 version of this instruction, which is nearly identical to the current version, is quoted approvingly in Crum. See Crum, 362 Pa.Super. at 115-17, 523 A.2d at 801-802. The instruction, therefore, reflects accurately our relevant case law on the subject. See Byers, 437 Pa.Super. at 506, 650 A.2d at 470.

Although appellant claims that certain factors are lacking in the above jury instruction, such factors are either explicitly or implicitly included in this instruction. The factor, whether appellant posed a safety threat to others, is explicitly addressed in the first paragraph cited where the trial court instructed: “These terms ... cover certain situations where a person under the influence, is a distinct threat to public safety, even though he is not driving at the time.” N.T., 6/24/94 at 36. The factor, whether appellant was sleeping, is included implicitly in the same portion of the instruction since a driver who is sleeping in his automobile clearly poses a threat to public safety. See Commonwealth v. Cathey, 435 Pa.Super. 162, 166, 645 A.2d 250, 251 (1994). Furthermore, such factor is. implicitly included in the second paragraph of the above instruction where the court instructed the jury to consider “generally, whether the defendant had control of the management of the vehicle.” Id. at 37. It is also clear that whether appellant was in a parking lot is included in the second paragraph which listed as a factor “where the vehicle was located.” Id. at 36. In addition, it was not necessary to instruct the jury that it was not dispositive that the engine was running and the lights were turned on, because it is apparent from the second paragraph that such factors are but two of several factors to be considered in order to determine whether a person has. “actual physical control” of an automobile.

Consequently, the above instruction comports with Pennsylvania’s Suggested Standard Jury Instructions and applicable case law regarding whether appellant had “actual physical control” of an automobile, and accurately addresses the factors suggested by appellant. Hence, the instruction “clearly, adequately and accurately presented [the applicable law] to the jury for its consideration” and the trial court did not err in charging the the jury as such. See Jacobs, supra.

Therefore, based on the foregoing, we affirm the order sentencing appellant on his conviction for driving under the influence of alcohol.

Order affirmed.

      . 75 Pa.C.S.A. § 3731(a)(1), Driving Under the Influence of Alcohol, Incapable of Safe Driving; 75 Pa.C.S.A. § 3731(a)(4), Driving Under the Influence of Alcohol, Blood Alcohol Level .10% or Greater at Time of Operation; and 75 Pa.C.S.A. § 3731(a)(5)(i), Driving Under the Influence of Alcohol, Blood Alcohol Level .10% or Greater Within Three Hours of Operation.

      . 18 Pa.C.S.A. § 2701(a)(1).

      . 18 Pa.C.S.A. § 5503(a)(1).

      . 18 Pa.C.S.A. § 2709.

      . 75 Pa.C.S.A. § 4306(a).

      . 75 Pa.C.S.A. § 3715(a).

      . The portion of the sentence relating to appellant's conviction for the three counts of driving under the influence of alcohol was six to twenty-four months. Order, 8/1/94 at 1.

      . Note that appellant alleged at trial and in his appellate brief that his automobile was not located on the side of the road when he passed out and was found by the police, but rather in the gravel parking lot where the Commonwealth alleged that appellant’s car was placed by the officer. Appellant’s brief at 11; N.T., 6/24/94 A.M. at 81-82, 90. Essentially, appellant is arguing that he did not move his car after he consumed the alcohol; however, such movement may be inferred under the Commonwealth’s account of the events. As we are required to view the evidence in the light most favorable to the Commonwealth, we must accept the Commonwealth’s version of the events which transpired on the morning in question. See French, supra; Baker, supra.

        . This evidence is not disputed, and in fact was stipulated to by appellant at trial. See N.T., 6/24/94 A.M. at 55-56.

      . See footnote 9, supra.


author: DEL SOLE, Judge:

text:
    668 A.2d 1163
    COMMONWEALTH of Pennsylvania v. George Patterson CAMERON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 18, 1995.
    Filed Dec. 22, 1995.

      Timothy L. Clawges, Assistant Public Defender, Carlisle, for appellant.
    Alison Taylor, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before CAVANAUGH, DEL SOLE and SAYLOR, JJ.
   DEL SOLE, Judge:

Appellant was sentenced following his conviction for driving under the influence, 75 Pa.C.S.A. § 3731(a)(4). The incident leading to his arrest occurred in the parking lot of an apartment building in which he was a tenant. The lot was posted as restricted for tenants only, each had an assigned parking place, and there was only one entrance. Appellant raises a single issue, namely, the nature of this parking lot does not meet the statutory definition of a “Trafficway” to satisfy the requirements of 75 Pa.C.S.A. §§ 102 & 3101. We disagree and affirm.

Appellant relies on Commonwealth v. Owen, 397 Pa.Super. 507, 580 A.2d 412 (1990) suggesting that this parking lot does not satisfy the public use requirement of Section 102. However, Appellant misinterprets Owen. There, this court affirmed a trial court’s dismissal of DUI charges following a hearing on a writ of habeas corpus where the defendant was arrested for operating his vehicle in a university parking lot. The Majority concluded that the Commonwealth presented “no competent evidence concerning the nature of the parking lot where appellee was stopped by the police.” Id. at 511, 580 A.2d at 414. This case does not stand for the proposition that a parking lot cannot satisfy the Section 102 “Trafficway” definition. As we held in Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989), a parking lot used by the “public” even if signs seek to limit its use, satisfies Section 102.

Here the testimony described the parking lot as adjacent to an eleven story apartment building. While there was testimony that guests of tenants and occasional third persons would use the lot, the requirement of “public use” embodied in Section 102 does not exclude the finding of a violation of the DUI and related serious traffic offenses statutes where access of a lot is strictly limited to tenants of adjoining buildings. We conclude that tenants, employees, and others who have the advantage of a restricted parking facility still deserve and expect to be protected from incidents involving serious traffic offenses. Thus, the public use component of Section 102 can be satisfied even where access to a parking lot is restricted, but where there are a sufficient number of users, such as presented in the matter before us involving a parking lot located adjacent to an eleven story apartment building.

Appellant also suggests that a recent amendment to the Vehicle Code, 75 Pa.C.S.A. § 3701.1(a.l), evidences legislative understanding that a parking lot is not a “trafficway.” Section 3701.1(a.l) defines trafficway as including parking lots, for purposes of this provision prohibiting the leaving of children under the age of six in unattended vehicles. However, we conclude that the legislative purpose in including a parking lot as a trafficway for purposes of Section 3701 was not to suggest that a parking lot could not be a “trafficway” under Section 102, but rather to include in the statute’s prohibition the leaving of a young child in an unattended vehicle at all locations.

Therefore, we hold that the public use component of Section 102 can be satisfied in a restricted parking lot situation if the jury concludes that a sufficient number of lot users are present. The evidence was sufficient to support the jury determination.

Judgment of sentence affirmed, jurisdiction relinquished.


author: DEL SOLE, Judge.

text:
    668 A.2d 1165
    Richard CONWAY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1995.
    Filed Dec. 22, 1995.

      Warren Siegel, Philadelphia, for appellant.
    Evelyn R. Devine, Philadelphia, for appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   DEL SOLE, Judge.

This is an appeal by Richard Conway from an Order sustaining United States Fidelity and Guaranty Company’s Preliminary Objections and denying Appellant’s Petition to Compel Appointment of Defense Arbitrator. We reverse.

On or about December 22, 1991, Appellant was driving an automobile owned by Constantine Janos and insured by the Appellee insurance company when he was involved in an accident with a third party. Appellant suffered serious injuries. He filed a notice of an underinsured motorist claim with Appellee. Appellant subsequently filed a Petition to Compel Appointment of Defense Arbitrator in the Court of Common Pleas of Philadelphia County which is where he resides. In response, Appellee filed Preliminary Objections challenging venue by averring that the Petition to Compel Arbitration had been improperly filed in Philadelphia County and the arbitration had to take place in Perry County which is where Constantine Janos lived at the time that the policy was issued and/or at the time of the accident. The trial court granted the Preliminary Objections and dismissed the Petition to Compel Arbitration.

Initially, we note that Appellee has filed a Motion to Quash this appeal alleging that the trial court’s Order is not final because it does not end the litigation, dispose of the case or effectively put Appellant out of court. Appellee further contends that the trial court simply refused to grant the Petition to Appoint a Defense Arbitrator because the Petition was filed improperly and the parties were forced into resolution of the underinsured motorist claim in Perry County as opposed to Philadelphia County.

“A final order is defined as one which: (1) disposes of all claims or of all parties; or (2) any order that is expressly defined as a final order by statute; or (3) any order entered as a final order pursuant to Appellate Rule 341(c). Pa.R.A.P., Rule 341(b), 42 Pa.C.S.A.” Puricelli v. Puricelli, 446 Pa.Super. 493, 667 A.2d 410 (1995). Appellee correctly points out that the order in the case sub judice did not dispose of all claims or put Appellant out of court. However, by sustaining Appellee’s preliminary objections raising venue and dismissing Appellant’s petition, the trial court effectively changed venue to Perry County. Even though this order is interlocutory, it is appealable as of right pursuant to Pa.R.A.P. 311(c), 42 Pa.C.S.A., which states:

Changes of Venue, etc. An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.

See also Flaxman v. Burnett, 393 Pa.Super. 520, 574 A.2d 1061 (1990). Therefore, the appeal is properly before us, and the motion to quash is denied.

Section C of the insurance policy setting forth the language governing the location of the arbitration states:

Unless both parties agree otherwise, arbitration will take place in the county in which the “insured” lives. Local rules of law as to procedure and evidence will apply.

The trial court construed that provision to mean that the “insured” refers only to Constantine Janos the sole named purchaser under the policy who resides in Blain, Perry County, Pennsylvania. The court also stated:

Conway has asserted that he is considered to be an insured under the terms of the policy and as a Philadelphia resident he is entitled to petition this Court for appointment of arbitrators. However, Conway is not seeking underinsured motorist benefits from a policy he purchased or under a policy in which he is an [sic] named insured, but from a policy purchased by Constantine Janos, a non-Philadelphia County resident. As such, Conway as a third-party beneficiary under United States Fidelity and Guarantee’s policy, is therefore subject to the same rights and limitations of the named insured. See Johnson v. PA National Insurance Companies, 527 Pa. 504, 594 A.2d 296 (1991).
Accordingly, based on the named insured, Constantine Janos’, address which is located in Perry County and the fact that the insurance policy directs that the arbitration hearing be conducted in the county in which the insured resides, this Court sustained defendant’s Preliminary Objections and denied plaintiffs petition for appointment of a defense arbitrator.

Trial ct. op. dated 10-11-95 at 3-4. We disagree with the trial court’s reasoning.

Part C of the insurance agreement defines the term “insured” as follows:

1. You or any “family member.”
2. Any other person “occupying” “your covered auto.”
3. Any person for damages that person is is entitled to recover because of “bodily injury” to which this coverage applies sustained by a person described in 1. or 2. above.

The principles controlling the interpretation of a contract of insurance are well settled. “If the policy language is clear and unambiguous, we give effect to the language of the contract.” Bateman v. Motorists Mutual Insurance Co., 527 Pa. 241, 245, 590 A.2d 281, 283 (1991). Instantly, it is clear that the term “insured” includes any person occupying the insured’s vehicle. If the Appellee wanted to put a limitation on where the arbitration could be held, it could have used the term “named insured” which is found in the language from the general definition section of the policy. The general definitions section of the policy explains:

A. Throughout this policy, “you” and “your” refer to:

1. The “named insured” shown in the Declarations; and
2. The spouse if a resident of the same household.

Since the Appellee did not use the term “you” or “named insured” in Part c(2) of the policy for underinsured motorist coverage with respect to arbitration, it did not restrict the situs of the arbitration to the policy owner’s place of residence. Appellant falls within the definition of “insured” under the policy; therefore, Philadelphia is the appropriate place for the arbitration since Appellant, as the occupant of the vehicle, lives in that County.

Order vacated and case remanded for the appointment of defense arbitrator. Motion to quashed denied. Jurisdiction relinquished.


author: CAVANAUGH, Judge:

text:
    668 A.2d 1167
    COMMONWEALTH of Pennsylvania v. Carrol Bradford SNEERINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1995.
    Filed Dec. 29, 1995.

      Allen C. Welch, Lemoyne, for appellant.
    Martha J. Dúvall, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and HESTER, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment of sentence of life imprisonment, imposed following appellant Carroll Sneering-er’s conviction of first degree murder. After careful review, we affirm.

For approximately two years appellant and the victim, Christie Paul, resided together with their child and another child from a prior relationship of the victim. During this period the victim worked two jobs and was the primary caregiver for the children. Appellant had an erratic work history, which was the cause of tension between him and the victim. On August 14,1992 apjpellant lost Ms job. The victim, after learning this fact, told several friends and family members that she was going to throw appellant out and end their relationship.

In the evening of August 13th, appellant, the victim, and the children were at home. The victim had several telephone conversations with friends. This was the last known contact she had before her death.

On August 20th, the victim’s disappearance was reported to the police at the insistence of one of her friends. The police interviewed appellant, who told them that the victim left the apartment at 9:30 P.M. on August 18th in her car. He also told them that he awoke at 3:00 A.M. and that the car and the only set of keys had been returned, but that the victim was not there. Appellant also related to friends that he and the victim had a big fight.

On August 21st, appellant consented to a search of the victim’s car, which revealed blood stains in the trank. On August 22nd, the police discovered blood in the stairwell, kitchen and bedroom of the couple’s home, and at the spot where the victim normally parked her car.

In the meantime, several persons had reported seeing a car, which matched the description of the victim’s car, being driven through town on the morning of August 19th with blood smeared on the trunk and rear bumper. Another person also reported seeing the victim’s car parked earlier that morning at a remote location eight miles east of Gettysburg. Police subsequently found numerous blood stained items near this location. One of these items was a metal softball bat inscribed with the victim’s name. The victim’s body was discovered several months later in another location.

At trial, the Commonwealth presented expert medical testimony that the victim’s death was caused by a blunt trauma to the right and back side of the head which fractured the skull; and that the injury was consistent with being struck with considerable force by an aluminum bat. Expert testimony was also presented that the blood found in the car, the apartment, and on the items at the remote location were consistent with the victim’s blood. Following deliberation, the jury returned a verdict of guilty of first degree murder. The court subsequently imposed the mandatory sentence of life imprisonment. Appellant then filed this appeal.

Appellant first contends that trial counsel was ineffective for not objecting to the trial court’s progression charge as to the degrees of homicide, because the charge was erroneously given, it confused the jury, and it compelled the jury to return a verdict of guilty of first degree murder.

[Claims of] ineffectiveness [of counsel] ... are subject to a three-part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant.

Commonwealth v. Donahue, 428 Pa.Super. 259, 282, 680 A.2d 1238, 1249-50 (1993) (citations omitted).

As a general rule, this Court has held that a progression charge is proper where a defendant is charged with different forms or degrees of the same crime. Commonwealth v. Hart, 388 Pa.Super. 484, 493, 565 A.2d 1212, 1216 (1989). See also Commonwealth v. Loach, 421 Pa.Super. 527, 618 A.2d 463 (1992) (en banc). With regard to a progression charge in a homicide case, it is necessary for the trial court to carefully instruct the jury to consider factors which may rebut evidence either of a specific intent to kill or of malice. Id.

Here, the trial court did not initially instruct the jury using a progression charge as to the degrees of homicide. Alter the jury began its deliberations, it questioned the trial court whether it had to complete the entire verdict slip. The trial court, after consultation with the Commonwealth and defense counsel, instructed the jury as follows:

I think perhaps the easiest way to do this is as follows: without suggesting in any manner that you should enter a guilty verdict on any count, but if you believe the Commonwealth has proven Ms guilt beyond a reasonable doubt as to at least one of the counts and maybe more, that you should enter a guilty verdict on the highest level of guilt, highest being first, then third, then voluntary. Pick the highest level, enter your verdict on that one if it is guilty and then come on back in. And the reason why I say this is if you find him guilty of first degree, that would include all of the elements for third but not necessarily for voluntary because there are some things about voluntary which aren’t the same as in the murder. You could find him, if you were to find Mm guilty of voluntary, for example, then the murder wouldn’t be present because there wasn’t the malice perhaps or it hasn’t been disproven about the passion and the provocation that I talked to you about. So rather than trying to figure out yourself if one applies and the other two don’t, the easiest way to do this is just if you find guilt at all, just pick the highest level that you feel has been proven beyond a reasonable doubt and then just stop.

Appellant contends that this instruction was erroneous and confused the jury, because the trial court failed to instruct the jury to consider evidence which would rebut a finding of malice. When reviewing jury instructions, error will not be found based upon isolated excerpts, but rather, the charge as a whole is considered. Commonwealth v. Shoup, 423 Pa.Super. 12, 22, 620 A.2d 15, 20 (1993). “The key inquiry is whether the instruction on a particular issue adequately, accurately and dearly presents the law to the jury, and is sufficient to guide the jury in its deliberations.” Id.

After reviewing the trial court’s charge, we conclude that the court correctly instructed the jury with regard to its deliberations on the charges of first degree murder, third degree murder, and voluntary manslaughter. At issue is whether the trial court informed the jury that mitigating factors which may be present, are relevant to first and third degree murder, because they may negate an inference of malice. Here, the trial court specifically instructed the jury that a finding that appellant was acting under a sudden and intense passion resulting from serious provocation could negate a finding of malice. Thus, when the jury returned to its deliberations, it was aware of what mitigating circumstances to consider, and that these factors had to be considered in determining guilt or innocence as to each of the grades of homicide charged — first degree murder, third degree murder, and voluntary manslaughter. As such, appellant’s claim of ineffectiveness is meritless. See Hart, supra (whether a defendant acted under “heat of passion” or “unreasonable belief’ is implicit in the question of whether the malice element necessary for a murder conviction has been established).

Appellant next contends that the trial court erred in admitting several hearsay statements attributed to the victim, which did not comport with the state of mind exception to the hearsay rule, and whose probative value was outweighed by their prejudicial impact. The statements found objectionable to appellant concerned the breakdown of the victim’s and appellant’s relationship, and the victim’s expressed intent to get appellant out of her life. The trial court ruled that these statements were relevant to show motive and that they were admissible under the state of mind exception. The trial court also instructed the jury that these statements were only being admitted for this limited purpose.

Evidence concerning a relationship between a defendant and a victim may be relevant and admissible to prove ill will, motive, or malice. Commonwealth v. Myers, 530 Pa. 396, 399-400, 609 A.2d 162, 164 (1992). Such evidence, however, is nonetheless subject to general evidentiary rules governing competency and relevancy. Id. While the statements elicited by the Commonwealth are hearsay, they are admissible under the state of mind exception to the hearsay rule. See Commonwealth v. Henderson, 324 Pa.Super. 538, 472 A.2d 211 (1984). The fact that the victim intended to end her relationship with appellant made it more probable that she did end the relationship, than if she had no such intention. Moreover, if the victim did end her relationship with appellant, then such a factor is probative of appellant’s motive. The mere fact that the victim expressed an intent to end her relationship with appellant does not establish that she did in fact do so. It does, however, allow the jury to infer appellant’s motive from such a revelation, and is properly considered in resolving the question of whether appellant killed the victim. As such, the objectionable remarks were both competent and relevant, and they were properly admitted at trial.

Appellant next contends that the trial court erred in refusing to grant a mistrial after a Commonwealth witness testified that the victim had told her that appellant used illegal drugs, because such testimony was highly prejudicial evidence of prior criminal conduct. The testimony which prompted defense counsel’s objection occurred during direct examination of a Commonwealth witness:

Q. What did you know from Christie about her personal life say in the year prior to August of 1992?
A. She was not very happy at home. She said her boyfriend that lived with her took up a lot of her time and she didn’t have a lot of time to spend with her children. He had to go everywhere they went. She said they were fighting because he was using marijuana.

The trial court overruled defense counsel’s objection and instructed the jury that this testimony was relevant to establish the victim’s state of mind and the status of her and appellant’s relationship.

Evidence of other crimes is generally inadmissible. Such evidence may, however, be admitted in certain circumstances where the evidence is relevant for some other legitimate purpose and not merely to prejudice the defendant by showing him or her to be a person of bad character. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989). A defendant’s other criminal acts may be introduced to prove motive; intent; absence of mistake or accident; a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or to establish the identity of the person on trial as the person who committed the crime in issue. Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989); Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987).

Commonwealth v. Rogers, 419 Pa.Super. 122, 128, 615 A.2d 55, 58 (1992). Furthermore, a new trial will be granted only when the reference to the prior criminal activity is prejudicial to the defendant, with prejudice resulting “where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Commonwealth v. Wallace, 522 Pa. 297, 308, 561 A.2d 719, 724 (1989), quoting, Commonwealth v. Morris, 513 Pa. 169, 519 A.2d 374 (1986).

Here, the reference to appellant’s drug use does not fall within any of the enumerated exceptions to rule prohibiting the admission of evidence of other crimes. Furthermore, this testimony was intentionally elicited by the Commonwealth, as the record reveals that the Commonwealth informed the trial court, prior to questioning the witness, that it intended to elicit testimony that the parties relationship was deteriorating because of appellant’s drug use. In view of the witness’s direct reference to appellant’s involvement in criminal activity, we conclude that appellant was prejudiced by the admission of this evidence. A new trial is not warranted in this case, however, as we find this error to be harmless. An error is harmless where the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the error is so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Commonwealth v. Sanchez, 407 Pa.Super. 234, 240, 595 A.2d 617, 620 (1991). Here, no relief is warranted as the prejudice to appellant was insignificant in view of the overwhelming evidence of his guilt, and we are convinced beyond a reasonable doubt that the error could not have contributed to the verdict.

In the fourth issue, appellant contends that the trial court erred in refusing to grant a mistrial after a Commonwealth witness testified that appellant had refused to take a polygraph test. On direct examination, the witness testified as follows:

Q. How long was Brad gone, do you recall? Did he come back at some point?
A. Yeah, he did. I am not sure how long.
Q. Well, was it hours or less?
A. 20 minutes, half hour, maybe, I don’t know.
Q. Then what happened?
A. He seemed really mad. I asked what was wrong and he said that they wanted him to take a polygraph test and that he refused it. I said well, why. If they had suspicions about me, that would be the first thing I would want to do but he just said he didn’t want to take this test.

Defense counsel moved for a mistrial. The trial court denied this motion and gave a cautionary instruction:

THE COURT:
Ladies and gentlemen, Mr. Bere made reference during his testimony to something which requires me to talk to you about at this time. As with any other witness you must judge the credibility of Mr. Bere and you have to determine whether what he told you was true or not true as it was related. The one reference that he made if you find that this was accurate and credible was that the Defendant made some statement about being asked to take a polygraph and that he refused to take that. The sole purpose for which that reference may be admitted in this case, if anything, is just to show state of mind of Mr. Sneeringer at about the time.
It’s very important that you understand that polygraph examinations have not reached the level of scientific acceptance that the Courts allow results of polygraph tests to be admitted into evidence and that no one is ever required, even if they’re asked, to take a polygraph examination,
I indicated to you during the orientation that the burden is always on the Commonwealth to prove the Defendant’s guilt beyond a reasonable doubt. A Defendant is presumed to be innocent. A Defendant need not prove anything at all and has a constitutional and absolute right to remain silent and that if Mr. Sneeringer chooses not to present a defense in this case or as specifically relates to the comment made here, declined any opportunity to take a polygraph examination, you must as a juror not allow that to influence in any way your decision on whether he is or is not guilty. In other words, it would be improper to infer from his failure to take that exam that that is any evidence that he is guilty or had anything to hide. Just the same as if he were to decide not to present a defense, you could not infer from that that he is guilty or has anything to hide.

Appellant now contends that the court’s instruction was insufficient because it allowed the jury to consider his refusal with regard to Ms state of mind. He maintains that any reference to Ms refusal to take a polygraph is prejudicial and requires a new trial.

[T]he results of lie detector tests are inadmissible at trial due to their unreliable nature. Therefore, any reference to a lie detector test which raises an inference concerning the guilt or innocence of a defendant is inadmissible. Commonwealth v. Camm, 443 Pa. 253, 269, 277 A.2d 325, 333 (1971). The mere mention of a líe detector test, however, does not constitute reversible error.

Commonwealth v. Stanley, 427 Pa.Super. 422, 426, 629 A.2d 940, 942 (1993). Here, the Commonwealth did not intentionally elicit the objectionable response from the witness, the test was not administered, and the trial court instructed the jury that it must not let the witness’s reference to the test influence their determination of appellant’s guilt or innocence. Additionally, the court’s reference that the testimony may be relevant to show state of mind does not require a new trial. The response of the witness did not reflect upon the results of a polygraph, which as a matter of law are inadmissible. Moreover, the court’s instruction, read in its entirety, was sufficient to communicate to the jury that they could draw no inference, adverse or favorable, from the witness’s indication that appellant refused to take a polygraph test. Cf. Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982) (new trial not required where witness indicated that Commonwealth wanted to give him a He detector test where: the Commonwealth did not elicit this information, the result of the test was not mentioned, it was unclear whether a test was given, and the court instructed the jury to disregard the testimony).

Next, appellant argues that the trial court erred in denying appellant’s motion for a change of venue or venire based upon the inherently prejudicial nature of the media coverage in the case. In a case where prejudicial publicity occurs, the trial court may exercise its discretion and may continue the case, change the venue, resort to extensive voir dire, or use the costly and inconvenient device of jury sequestration. Commonwealth v. Chambers, 528 Pa. 558, 570, 599 A.2d 630, 636 (1991). Moreover, where a defendant claims that he has been denied a fair trial because of prejudicial pretrial publicity, he must demonstrate actual prejudice in the impanelling of the jury. Id. In either case, an appellant bears a heavy burden in order to secure a new trial.

After reviewing the record in this case, we find that it is insufficient to address appellant’s claims. The record contains neither the numerous newspaper articles which appellant claims prejudiced him, nor does it contain a transcript of the voir dire of the prospective jurors. It is the responsibility of the appellant to offer a complete record for purposes of appellate review, and where an appellant fails to do so, his claim is considered waived. Commonwealth v. Muntz, 428 Pa.Super. 99, 107, 630 A.2d 51, 55 (1993). Because appellant has failed to provide us with the necessary materials to review his claim, it is waived.

In his final issue, appellant claims that trial counsel was ineffective for failing to request that the court not give the “no adverse inference” charge, which only highlighted the fact that appellant did not testify .on his own behalf, and for not objecting to the form of the charge given.

Our supreme court has held that it is reversible error for the trial court to refuse to give the “no- adverse inference” charge when requested to do so in a timely fashion, Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975 (1991), and also that it is reversible error for the trial court to give the “no adverse inference” charge when the defendant requests that no such instruction be given. Commonwealth v. Edwards, 535 Pa. 575, 637 A.2d 259 (1993). We are unaware of any caselaw, however, which finds counsel ineffective for failing to request that the “no adverse inference” charge not be given. In support of Ms argument, appellant proffers Commonwealth v. Khamphouseane, 434 Pa.Super. 93, 642 A.2d 490 (1994), for the proposition that counsel may be ineffective for failing to request that the “no adverse inference” charge be given. Khamphouseane, however, is distinguishable on its facts from the case at bar.

In Khamphouseane, the prosecutor, in Ms closing argument, called direct attention to the fact that the defendant had not testified at trial. Despite this comment, a “no adverse inference” instruction was not given, and defense counsel failed to request such an instruction. On appeal, this court concluded that in light of the prosecutor’s comment there was arguable merit to the ineffectiveness claim, and remanded for a hearing in order to discover counsel’s reasons for not requesting the instruction.

In the present case, we are not faced with a situation where the failure of appellant to testify was raised before the jury. Whether or not to request a “no adverse inference” instruction is a strategic decision to be made by counsel. See Lewis, supra. Appellant has failed to point to any facts in the present case which would support Ms contention that it was unwise for counsel to request that the instruction not be given. As such, counsel may have reasonably believed that the jury would speculate why appellant had not testified, and that the jury may have held this failure to testify against appellant. In such circumstances, there existed a reasonable basis for not objecting to the charge being given. We also note that appellant has not demonstrated, nor can we discern from an independent review of the record, that he was prejudiced by counsel’s action. See Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300 (1994) (defendant must demonstrate actual prejudice — that counsel’s failure to request “no adverse inference” instruction had an actual aolverse effect on outcome of proceeding).

Appellant also contends that the form of the “no adverse inference” charge given by the trial court was incorrect. The trial court instructed the jury as follows:

Before I go to the next step of what I’m going to talk to you about, I want to just mention again although it’s been mentioned several times I cannot emphasis [sic] enough how important this is, Mr. Sneeringer did not testify. That’s his right. His absolute constitutional right and you as jurors must accept the fact that you can draw no conclusion whatsoever from his failure to testify. There may be any number of reasons why that decision was made which bears in no way upon his guilt or non-guilt. So you cannot infer in any way that he has something to hide or he is possibly or probably or actually guilty just because he didn’t make a statement and present himself to you.
This is easier to understand if you recall he has no burden of proving anything. The burden is on the Commonwealth to prove his guilt beyond a reasonable doubt. If the Commonwealth fails to prove his guilt beyond a reasonable doubt, you should find not guilty as your verdict. If they, that is the Commonwealth, has proven to you beyond a reasonable doubt the Defendant’s guilt, then your verdict should be guilty regardless of what the defense has presented whether they presented anything or not. The purpose of the defense presentation at all to the extent that it was presented was for the purpose of attempting to create in your mind that there might be some reasonable doubt about some of the things that you heard and in that way attack the case presented by the Commonwealth. Of course before you can decide that any of the defense testimony impeached or attacked the credibility of the Commonwealth’s -witnesses and created any doubt in your mind, you have to judge those witness’ [sic] testimony by the same standards of determining credibility as the Commonwealth’s witnesses:

After reviewing this instruction, we find no error. Appellant alleges error based upon isolated portions of the charge. However, we review the charge as a whole, and will not find error based upon isolated excerpts. See Shoup, supra. The trial court’s charge accurately and clearly presented the law to the jury, and was sufficient to guide its deliberations. Thus, appellant’s final issue is without merit.

Judgment of sentence affirmed.

      . Appellant contends that, although the objectionable statements in the case at bar are reflective of the victim's state of mind, they are, nonetheless, inadmissible because the declarations only become relevant when they are considered for the truth of the matter asserted. In support of this proposition, appellant relies on Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981).
      In Thornton, a police officer testified that the victim had said that he was carrying a gun because the defendant was after him. On appeal, the supreme court indicated that this testimony tended to establish that the victim was fearful of the defendant. The court concluded, however, that the victim's state of mind was not at issue in the case, but rather, that it was the defendant's state of mind which was material to establish the degree of guilt, if any, on the charge of criminal homicide. The court further reasoned that only when the declaration was considered for its truth, that the defendant was after the victim, did it become relevant to the defendant’s intent to kill the victim.

        Thornton is factually distinguishable from the case at bar. In Thornton, the victim’s state of mind was not probative and material of defendant's intent to kill. In the case at bar, the declarations of the victim were probative of appellant’s possible motive. Thus, the objectionable statements were both probative and material of an intent to kill on the part of appellant.

      . We note that two evidentiary problems arose in this case which are attributable to the fact that responses were made to open-ended questions which invited a narrative style of response from the witness. This practice is parlous since it places on the witness the burden of separating the admissible from the inadmissible and should be avoided.