author: WIEAND, Judge.

text:
    626 A.2d 1216
    BIRDSBORO CORPORATION v. Simon X. WENG and R.W. McPherson, t/d/b/a R.W. McPherson & Associates. Appeal of Simon X. WENG.
    Superior Court of Pennsylvania.
    Submitted April 5, 1993.
    Filed June 16, 1993.

      See also 413 Pa.Super. 651, 596 A.2d 248.

      Robert X. Medonis, Pittsburgh, for appellant.
    Charles W. Robinson, Pittsburgh, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge.

The appeal in this action is from an order which, following jury trial, awarded to R.W. McPherson & Associates, Inc. the sum of forty thousand ($40,000.00) dollars which had been paid into court, and denied a claim made thereto by Simon X. Weng.

The case involved a dispute about which claimant was entitled to commissions from the sale of machinery to the Shanghai Alloy Works, a business located in the People’s Republic of China. Birdsboro Corporation admitted that it owed the commissions but, by action in equity commenced on November 6, 1986, asked the court to determine which claimant or claimants were entitled to receive the same. On November 26, 1986, Birdsboro was permitted to pay the sum of forty thousand ($40,000.00) dollars into court, and the claimants were required to interplead their claims. Shortly before trial, Weng moved in limine to prevent testimony by R.W. McPherson on grounds that R.W. McPherson & Associates, Inc., and McPherson, individually, had assigned their interest in the fund to Charles W. Robinson, Esquire, as payment of fees. Robinson explained during a pre-trial conference that the assignment was intended to cover charges appearing on monthly invoices and that all of said charges had been paid. Accordingly, he said, he had no present interest in the fund. The trial court denied Weng’s motion in limine and allowed McPherson to testify at trial. Following trial, the funds were awarded to McPherson. Post-trial motions were denied.

Weng argues on appeal that the disposition of his motion in limine was erroneous and that the trial court erred when it refused to allow evidence of an assignment to be submitted to the jury. He argues that the trial court’s rulings on this issue prevented his raising the statute of limitations as a defense against the real party in interest. Because there is no merit in this contention, we affirm.

Pa.R.C.P. 2004 is applicable to transfers of interest and provides as follows:

If a plaintiff has commenced an action in his own name and thereafter transfers his interest therein, in whole or in part, the action may continue in the name of the original plaintiff, or upon petition of the original plaintiff or of the transferee or of any other party in interest in the action, the court may direct the transferee to be substituted as plaintiff or joined with the original plaintiff.

From this it is apparent that, although a substitution of parties is permissible, it is not essential. The rule does not affect the rights of the plaintiff to pursue the remedy for the use of the transferee. The substantive rights of the parties, thus, are not affected by an assignment of the claim, and the plaintiff, in any event, has the burden of proving his claim. Finally, the transfer of a claim for which an action has been timely filed does not permit the defendant to raise against the transferee the defense of a statute of limitations which expired after commencement of the action and prior to transfer. As has been observed by 6 Goodrich-Amram 2d § 2004:10,

When the action is properly begun by a real party in interest who thereafter assigns all or part of his interest, the addition or substitution of the assignee pursuant to Rule 2004 does not bring upon the record for the first time a person entitled to prosecute the action against the defendant nor does it change the cause of action in suit. It merely brings upon the record the successor or partial successor of one who was qualified to prosecute the action against the defendant and who had already done so within the statutory period. It is therefore immaterial whether the transferee of an interest in an action is brought upon the record before or after the expiration of the period of the applicable statute of limitations.

In the instant case, it is apparent that the merits of the dispute were not affected in any way by the procedural issue of whether the action was to be pursued in the name of McPherson or its lawyer. The action had been instituted by McPherson within the time allowed by the statute of limitations and whether any part of the McPherson claim had been assigned thereafter was immaterial to a determination of the substantive rights of the parties to the moneys paid into court.

Affirmed.


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    626 A.2d 1218
    R.W., Appellee, v. Warren W. HAMPE, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1992.
    Filed June 18, 1998.

      John S. Bagby, Jr., Philadelphia, for appellant.
    Daniel L. Thistle, Philadelphia, for appellee.

      Before CAVANAUGH, BECK and POPOVICH, JJ.
   BECK, Judge.

In this appeal we decide whether the plaintiff in a malpractice action may be identified in the caption and record by her initials alone. We hold that such closure is not warranted in this case, and reverse the trial court’s order granting the Petition to Partially Seal the Record.

Appellee instituted this malpractice action against appellant, alleging that appellant negligently rendered psychiatric care. Appellee’s full name appeared on the caption of the complaint. About a year after she filed her complaint, appellee filed a Petition to Partially Seal the Record, alleging that because of the intimate nature of her claim, any public disclosure of her name or other information that could identify her would “cause extreme, unnecessary embarassment.” Appellant opposed the petition, arguing that this partial closure would be in violation of the United States Constitution, the Pennsylvania Constitution, and the common law.

The trial court granted appellee’s petition, and ordered that “Plaintiffs name, address, and any other information that could identify her is thus sealed and the caption will now read ‘R.W. vs. Warren W. Hampe, M.D.’ ” In its opinion, the trial court reasoned that the closure order was warranted because “plaintiff’s interest in confidentiality outweighs the presumption of accessibility.” The trial judge explained his decision as follows:

[P]laintiff initially consulted defendant, a psychiatrist, after experiencing difficulties resulting from her “divorce and several family tragedies, stress from overwork, by the pressure of everyday life and rearing her children as a single parent.” During her approximate one year of therapy, plaintiff alleges she revealed many confidences concerning the aforementioned problems. She also contends she confided details of her relationship with another of defendant’s patients, particularly those of a sexual and emotional nature. After weighing the equities in this case, including the almost unfettered freedom that anonymity provides, the Court determined that plaintiff, as a professional in the local community, and her children, should not be subjected to the ridicule and scorn which would certainly follow given the personal and intimate matters plaintiff necessarily included in the record.

Trial Ct. Opinion at 4-5 (footnote omitted).

Before we address the propriety of the trial court’s decision, we must decide whether the order sealing the record is appealable. “It is axiomatic that an appeal will lie only from a final order unless otherwise permitted by statute or rule.” Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985); Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986). Although the order appealed from in this case is interlocutory, we find that it is appealable under the “collateral order” doctrine. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Kronz v. Kronz, 393 Pa.Super. 227, 574 A.2d 91 (1990); Katz, supra. An interlocutory order is directly appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the questions presented are such that if review is postponed until a final judgment is rendered in the case the claimed right will be irreparably lost. Id.; Bollinger by Carraghan v. Obrecht, 122 Pa.Commw. 562, 552 A.2d 359 (1989). See also Hutchison v. Buddy, 398 Pa.Super. 505, 581 A.2d 578 (1990), rev’d on other grounds, 527 Pa. 525, 594 A.2d 307 (1991) (per curiam).

We hold that the order partially sealing the record is appealable as a collateral order. It is separable from the main cause of action — a lawsuit for personal injuries allegedly arising from medical malpractice — and its effect is too important to be denied review. If the order is left to stand until disposition of the merits, any harm claimed by appellant already will have irrevocably occurred. Bollinger, supra.

As we turn to the merits of the appeal, we first note that a trial court’s decision to grant or deny closure of the record will be reversed by this court only upon a determination that the trial court abused its discretion. Hutchison, supra at 511, 581 A.2d at 581 (citing Stenger v. Lehigh Valley Hosp. Center, 382 Pa.Super. 75, 78, 80, 554 A.2d 954, 954, 956 (1989)). Because we find such an abuse of discretion in this case, we reverse the trial court’s order to seal the record.

In order to justify closure or sealing the record a party must overcome the common law presumption of openness. Hutchison, supra; Katz, supra. The existence of a common law right of access to judicial proceedings and inspection of judicial records is beyond dispute. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1983), citing United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981). In Publicker, the Third Circuit Court of Appeals analyzed the origins of this presumption: [Sir Matthew] Hale [, M. Hale, History of The Common Law of England, 163 (C. Gray ed. 1971),] served as authority for Williams Blackstone when he explained why trials generally were conducted in public:

This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk....

8 W. Blackstone, Commentaries 373.

The explanation for and the importance of this public right of access to civil trials is that it is inherent in the nature of our democratic form of government. Thus, Justice Oliver Wendell Holmes, when he served as a justice on the Massachusetts Supreme Court, declared that public access to civil judicial proceedings was of “vast importance” because of “the security which publicity gives for the proper administration of justice.” “It is desirable that the trial of [civil] causes should take place under the public eye,” Holmes continued,

not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Wigmore on Evidence reaffirms the beneficial effects of public access to civil judicial proceedings identified centuries ago by Hale and Blackstone. Wigmore observes that public access “plays an important part as a security for testimonial trustworthiness.... ” Public proceedings are the means by which this testimonial of trustworthiness is achieved. Wig-more identifies other beneficial effects of public access to civil as well as criminal trials. It enhances the quality of justice dispensed by officers of the court and thus contributes to a fairer administration of justice:

(a) Subjectively, a wholesome effect is produced, analogous to that secured for witnesses, upon all the officers of the court, in particular, upon judge, jury, and counsel. In acting under the public gaze, they are more strongly moved to a strict conscientiousness in the performance of duty.. In all experience, secret tribunals have exhibited abuses which have been wanting in courts whose procedure was public.

Public access to civil trials also provides information leading to a better understanding of the operation of government as well as confidence in and respect for our judicial system.

(c) The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.

Publicker, supra at 1068-1070 (citations omitted). In order to rebut this well established presumption of openness, and to obtain closure of judicial proceedings and records, a party must demonstrate “good cause.” See Goodrich Amram 2d § 223(a) :7. Good cause exists where closure is “necessary in order to prevent a clearly defined and serious injury to the party seeking” it. Id.

Appellee contends that her interest in secrecy sufficiently rebuts the presumption of openness. See Bank of America National Trust & Savings Ass’n v. Hotel Rittenhouse Ass’n, 800 F.2d 339 (3d Cir.1986) (applying common law balancing test in measuring interest in secrecy against presumption of public access). In her Petition to Partially Seal the Record, appellee argued that “[t]he nature of this case is such that it would cause [her] significant embarassment if the personal details of her life and therapy with Dr. Hampe were open to public for view.” Appellee asserted that there “is no need for [her] identity to be open to. the public and press.” The trial court found that appellee’s interest in avoiding “significant embarassment” outweighed the presumption of openness, and ordered the record sealed to protect appellee’s identity.

Pennsylvania Rule of Civil Procedure 223 grants the trial court discretion to make and enforce rules and orders “[r]egulating or excluding the public or persons not interested in the proceedings whenever the court deems such regulation or exclusion to be in the interest of the public good, order or morals.” Pa.R.Civ.P. 223(a)(4). This discretion must be exercised “subject to the requirements of due process of law and of the constitutional rights of the parties.” Id. Appellee argued below that Rule 223 authorizes sealing the record in order to protect her identity. It is not clear that Rule 223, which specifically refers only to the procedures to be applied during the conduct of a jury trial, is helpful to appellee at this stage of the proceedings.

Moreover, appellee has cited no case in her brief to this court which authorizes the use of initials to protect the identity of an adult plaintiff in a malpractice lawsuit. In fact, our research has revealed only cases that preclude such limited identification. See e.g., A. McD. v. Rosen, 423 Pa.Super. 304, 621 A.2d 128 (1993) (in a psychiatric malpractice action, appellant “failed to cite authority or otherwise demonstrate that she, an adult plaintiff, can pursue an action at law by a designation other than her proper name” and therefore her full name, not initials, must be used); Doe v. Johns-Manville Corp., 15 D. & C.3d 135 (Bucks Cty.1980) (plaintiff could not bring lawsuit under pseudonym despite claim that he would be subject to ridicule and ostracism if he used his real name). See also Pa.R.Civ.P. 1018 (requiring names and addresses of parties in caption of lawsuit). The obvious exceptions to this practice are cases involving minors and incompetents, and these certainly are inapplicable here.

In her request to use initials, appellee essentially has requested closure of certain aspects of this judicial proceeding. There are few instances in this Commonwealth where closure will be permitted over the objection of other parties.

Divorce cases present one exception to the general rule of openness. See Katz, supra. The subject matter of divorce litigation serves, in many cases, “only to embarass and humiliate” the litigants. Id. 356 Pa.Super. at 472, 514 A.2d at 1379. The details of divorce “involve matters which are essentially private in nature and ... lack any useful, public purpose.” Id. The legislature has recognized this peculiar aspect of divorce litigation by authorizing the court to preclude trial by jury where it “cannot be had without prejudice to the public morals.” 23 Pa.C.S.A. § 305(b). Similarly, the Juvenile Act provides that “the general public shall be excluded from hearings under this Chapter,” for the salutary reasons of protecting the privacy interests of minors. 42 Pa.C.S.A § 6336(d). See also 42 Pa.C.S.A § 6308 (provides for limited public access to records relating to juvenile proceedings). No similar statute exists regarding psychiatric malpractice actions.

Our courts also imply that closure may be proper in criminal cases where a fair trial would be impossible due to pre-trial publicity, or where the safety of informants and the integrity of an ongoing investigation are at stake. Cf. Com. v. Fenstermaker, 515 Pa. 501, 530 A.2d 414, 420 (1987) (presumption of openness was not sufficiently overcome to justify sealing arrest warrant affidavits).

The potential disclosure of mental illness does not necessarily mandate the closure of judicial proceedings. See Com. v. Milice, 401 Pa.Super. 96, 584 A.2d 997 (1991). The preference for access should prevail even though the Mental Health Procedures Act specifically allows hearings to be closed if “it is requested to be private by the person or his counsel.” 50 Pa.C.S.A § 7304(e)(4). Milice, supra at 98, 584 A.2d at 998. See also Matter of Seegrist, 517 Pa. 568, 539 A.2d 799 (1988). Closure of a mental health hearing may be justified when a person’s medical records or other information intruding on one’s privacy will be presented, and where testimony will be given which ordinarily is protected by the doctor-patient privilege. Seegrist, supra.

However, cases which protect privacy interests under the Mental Health Procedures Act, Divorce Code and Juvenile Act are readily distinguishable from this one. Here, appellee initiated a malpractice action — an adversarial proceeding — in which she placed certain intimate issues before the court. There is no dispute that she thereby waived any protection that previously may have inured under the physician-patient privilege. Moses v. McWilliams, 379 Pa.Super. 150, 549 A.2d 950 (1988). See also 42 Pa.C.S.A. § 5929 (physician allowed to disclose patient information in civil matter brought by patient for damages on account of personal injuries). The pursuit of this action unquestionably will cause appellee embarrassment; any psychiatric and possibly other medical malpractice lawsuit will involve the revelation of personal matters. See A. McD., supra. However, as the trial court aptly noted, the anonymity sought by appellee would afford her “almost unfettered freedom.” Tr.Ct.Opinion at 5.

It is precisely this “freedom” that the common law presumption of openness is designed to curtail. The danger of allowing adult plaintiffs to bring and maintain lawsuits by their initials alone is self-evident. Appellant was named as defendant in this malpractice action, and certain allegations were lodged against him; in turn, he is required to defend against the charges in a public forum. He asserts that he should be afforded the right to attempt to clear his name and reputation in open proceedings. He argues that appellee should not be permitted to testify anonymously against him without the scrutiny of the public eye. Appellee is not a third party whose credibility and demeanor are irrelevant. Nor is she a minor whose privacy interests are specially protected by statute.

Moreover, this is not a private matter such as a divorce or a mental health proceeding, but rather an adversarial proceeding which has a “public purpose.” Katz, supra. Cf. Com. v. J.T., 279 Pa.Super. 127, 420 A.2d 1064 (due to “regrettable and embarassing circumstances surrounding” party’s commitment under Mental Health and Mental Retardation Act, court granted request that her name not be used in published opinion). The medical community and the public generally have a great interest in observing and learning from medical malpractice actions, and other adversarial proceedings.

We are not unsympathetic to appellee’s position. Our review of the sparse details in the record reveals that it does contain embarrassing information, particularly of a sexual nature. However, the fact that a case involves such information does not necessitate the use of a caption which identifies the plaintiff by initials alone. See, e.g., Hutchison v. Luddy, supra (involving sexual abuse of plaintiff by priest); Stenger v. Lehigh Valley Hosp. Center, supra (negligence action for transmission of AIDS involving intimate personal details of plaintiffs’ lives, their sexual practices, idiosyneracies, and personal hygiene). We do not decide whether such a caption would be permissible if all parties agreed to its use.

Appellant argues that if appellee may be identified by her initials alone, he will be hampered unfairly in his ability to defend himself. For example, appellant may be prevented from independently discovering information from witnesses and medical providers; a subpoena for medical records would be ineffectual if it could not contain appellee’s full name. Appellant also claims that he cannot retain a medical expert due to the fact that a potential expert could not be given the appellee’s name to check for a conflict of interest. Finally, appellant argues that his free speech rights have been subjected to a prior restraint by the trial court, as he cannot discuss the case by reference to appellee’s full name.

We agree that appellant will be placed at an unfair disadvantage if we were to affirm the trial court’s order. Appellee placed appellant’s full name and reputation into the public arena when she chose to file this lawsuit. Although the parties apparently did discuss entering into a stipulation whereby the record would be sealed by consent, appellant ultimately did not agree. We cannot permit one party to hide her identity under these circumstances.

At the same time, we note that the confidentiality of discovery proceedings and documents may be preserved. Stenger, supra 382 Pa.Super. at 89-90, 554 A.2d at 960-61 (“intensely private information” may be protected during discovery in negligence action). In Stenger, “intensely private information” related to the plaintiffs’ contraction of the AIDS virus after a blood transfusion at defendant hospital was the subject of a motion for protective order. The court granted the motion, and the press intervened to pursue its alleged right of access to certain discovery documents. This court upheld the protective order, reasoning that private documents collected during discovery are not judicial records that are filed with the court, and therefore are not subject to public access. Id. See also Hutchison, supra; Bank of America, supra.

However, this limited protection may be accomplished by narrower means than the sealing order issued below. For example, appellee may move for a protective order pursuant to our rules in order to avoid unreasonable embarrassment, annoyance or burden, and to protect certain information during pre-trial discovery. Pa.R.Civ.P. 4012. See Stenger, su pra; Bank of America, supra. “[A]ccess rights to litigation are at their nadir” during the discovery phase. Stenger, supra at 83, 554 A.2d at 958. It is clear, however, that once at trial, the presumption of openness is in place. Id. See also Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 611 A.2d 1280, 1291 (1992) (pretrial depositions and interrogatories are not available for public inspection until their use at trial).

Therefore, we vacate the trial court’s order granting appellee’s petition to partially seal the record, and hold that appellee may not hide her identity by the use of initials in the caption and record. We remand for further proceedings consistent with this opinion.

Reversed and remanded. Order vacated. Jurisdiction relinquished.

POPOVICH, J., files a Dissenting Statement.

POPOVICH, Judge, dissenting.

Since I perceive no abuse of discretion, I would affirm the trial court’s order.

      . The Petition specifically requested that appellant’s identity remain public. Appellee argues that this is justified by the fact that appellant refused to agree to a stipulation to seal the entire record.

      . In Hutchison, this court affirmed an order sealing the record in part, and reversed the trial court’s denial of a motion to seal discovery. As to the discovery portion of the order, our supreme court reversed the superior court’s decision. The supreme court found that the discovery portion of the case was not appealable under the collateral order doctrine, and it was not a final appealable order.

      . There are two methods of analysis of the competing interests involved in a request for closure. In the “first amendment” or constitutional analysis, the presumption of openness may be rebutted by a claim that the denial of public access “serves an important governmental interest and there is no less restrictive way to serve that government interest.” Hutchison, supra, at 513, 581 A.2d at 582 (citing Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1983)). Under this method, which is based in the First Amendment of the United States Constitution and Art. 1, sec. 11 of the Pennsylvania Constitution, it must be established that the "material is the kind of information that the courts will protect and that there is good cause for the order to issue.” Id. This first amendment analysis often is applied in cases where the press intervenes in a private action to ensure its access to judicial proceedings. See, e.g., Publicker, supra; Hutchison, supra. The second method of analysis is the common law balancing approach, where a party must show that her personal interest in secrecy outweighs the traditional presumption of openness. See Bank of America Nat'l Trust & Savings Ass'n v. Hotel Rittenhouse Ass’n, 800 F.2d 339 (3d Cir.1986). Because the issue before us can be resolved under the common law, we need not engage in the constitutional analysis. Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983); Ballou v. State Ethics Comm’n, 496 Pa. 127, 436 A.2d 186 (1981); Com. v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992). See also Bank of America, supra.

      . Appellee argues that the public can learn just as much from this case if it is called "R.W. v. Hampe” as it will if her full name is revealed. However, appellee’s contention that there "is no need for [her] identity to be open to the public’’ misstates the law. It is not the public that must show why a proceeding should remain open but rather she who must establish that her interest in avoiding embarrassment outweighs the presumption of openness.

      . There is no indication that a request for identification by initials was ever made in these cases.

      . The trial court’s order is not a model of clarity, and we therefore cannot be certain whether it intended that each of these discovery problems would result. We must assume that, in order to accomplish
        its goal of protecting appellee’s identity, the order was meant to apply to all aspects of this proceeding.

      . Appellee contends that appellant refused to agree to the stipulation because he knows that appellee will not continue this lawsuit if she is forced to reveal her identity. Obviously, we cannot condone such tactics. However, some degree of embarrassment or revelation of personal matters accompanies every type of medical malpractice action, and we note that appellee originally did file this lawsuit under her full name. She evidently was prepared at that time to disclose her identity during, these proceedings.

      . We note that appellant should not be permitted to undermine the effect of such a protective order by including discovery documents or portions thereof in pleadings or other materials filed with the court. If such materials must be filed, for example, in a motion for summary judgment, the protection afforded under such an order still would apply to the discovery material until the commencement of trial. See Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 611 A.2d 1280, 1291 n. 8 (1992).


author: KELLY, Judge.

text:
    626 A.2d 1224
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard GOLINSKY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 24, 1993.
    Filed June 21, 1993.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Steven Savor, Jr., Pittsburgh, for appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   KELLY, Judge.

In this case, we are called upon to determine whether a defendant must be informed of the possibility of a mandatory sentence before his waiver of a jury trial can be considered voluntary and intelligent. We hold that appellee, Richard Golinsky, validly waived his right to a jury trial although neither the Commonwealth nor his attorney nor the trial court informed him that the mandatory sentencing provisions of 18 Pa.C.S.A. § 7508 might be applied to him if he were found guilty. Accordingly, we reverse the trial court’s order which granted appellee a new trial after he was found guilty at a bench trial.

The facts and procedural history of this case may be summarized as follows. On September 6, 1989, appellee was arrested and charged with several drug offenses. Represented by counsel, appellee went to trial on July 20, 1992. The trial court explained to appellee the charges which the Commonwealth had included in the information:

Q. The Commonwealth of Pennsylvania has filed a Criminal Information against you. In the first count and the third count you are charged "with possession of a controlled substance, LSD in the first count and oxycodone in the third count. These are both misdemeanors, punishable by one year in jail and/or a fine of $5000 on each count.
Do you understand that?
A. Yes sir.
Q. The second count is possession with intent to deliver LSD, the second and the fourth counts. These are both felonies, and they are punishable by up to five years in jail and/or fines of $15,000 on the LSD and 15 years and $250,000 on the oxycodone.
Do you understand that?
A. Yes, sir.

N.T. July 20, 1990 at 4. The trial court went on to explain that appellee had a right to a jury trial and informed appellee that the jury would be chosen from a panel of randomly selected Allegheny County citizens, id. at 6, that appellee would participate in the selection of twelve people, id. and that the jurors would have to be unanimous in their verdict, id. at 7. Appellee waived his right to be tried by a jury. Id. at 8.

At the bench trial, the court found appellee guilty of all four charges. Id. at 41. The Commonwealth then announced its intent to proceed pursuant to mandatory sentencing provisions. Id. On September 28, 1990, the Commonwealth filed written notification of its intention to proceed pursuant to the mandatory sentencing provisions of 18 Pa.C.S.A. § 7508.

On August 8, 1991, appellee retained new counsel and filed post-trial motions nunc pro tunc, contending that he did not knowingly and voluntarily waive his right to a trial by jury and that trial counsel was ineffective for failing to inform appellee that he was subject to mandatory sentencing provisions. The trial court held an evidentiary hearing on January 27, 1992 and granted appellee a new trial on May 12, 1992. The Commonwealth timely appealed.

On appeal, the Commonwealth argues:

BECAUSE HE DID NOT RELINQUISH ANY RIGHTS PERTINENT TO SENTENCING BY HIS JURY TRIAL WAIVER, THERE IS NO MERIT TO THE CLAIM THAT HIS LACK OF AWARENESS OF THE APPLICABILITY OF A MANDATORY SENTENCE MADE IT INVOLUNTARY.

Commonwealth’s Brief at 6. We agree.

In reviewing an order granting a new trial, we will reverse only if the trial court abused its discretion or committed an error of law. Commonwealth v. Byng, 364 Pa.Super. 636, 640, 528 A.2d 983, 985 (1987), citing Commonwealth v. White, 482 Pa. 197, 199, 393 A.2d 447, 448-49 (1978). Pursuant to this standard, we address the Commonwealth’s argument.

A defendant has the right to waive a jury trial; this waiver must be knowing and intelligent as evidenced by the colloquy. Pa.R.Crim.P. 1101, 42 Pa.C.S.A., Commonwealth v. Williams, 310 Pa.Super. 501, 456 A.2d 1047 (1983). Cases have also interpreted Rule 1101 to require a waiver to be knowing and voluntary. Id. To be valid, the waiver must be an intentional relinquishment or abandonment of a known right or privilege, and the accused must be aware of the “essential protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.” Commonwealth v. Quarles, 310 Pa.Super. 74, 79, 456 A.2d 188, 191 (1983), citing Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). The essential ingredients in a jury trial, which are necessary to understand the significance of the right a defendant is waiving include: the jury will be chosen from members of the community, the verdict will be unanimous, and the accused will be allowed to participate in the selection of the jury panel. Commonwealth v. Lott, 398 Pa.Super. 573, 581 A.2d 612 (1990); Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).

Commonwealth v. Hayes, 408 Pa.Super. 314, 318-19, 596 A.2d 874, 876 (1991). See also Commonwealth v. Dunn, 424 Pa.Super. 521, 522-24, 623 A.2d 347, 348 (1993), citing id. (listing three elements which defendant must know before he can waive jury trial). An allegation that a defendant was not informed of an element which is not one of the three elements above does not render the defendant’s waiver of a jury trial unknowing or involuntary. See Commonwealth v. Madison, 271 Pa.Super. 382, 388, 413 A.2d 718, 721 (1979) (“There is no prophylactic rule which requires that a defendant be informed of all the procedural steps which come into play after he knowingly and voluntarily relinquishes his right to be tried by a jury.”). See also Hayes, supra 408 Pa.Super. at 319, 596 A.2d at 876, citing Commonwealth v. Quarles, 310 Pa.Super. 74, 456 A.2d 188 (1983) and Commonwealth v. Pollard, 288 Pa.Super. 20, 430 A.2d 1192 (1981) (although colloquy did not inform defendant that Commonwealth had to prove guilt beyond reasonable doubt, his waiver of jury trial was not unknowing or involuntary).

The Pennsylvania Supreme Court has expressly refused to add to the three essential elements which must be known before a waiver of a jury trial can be valid. In Common wealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975), the Court rejected the defendant’s argument that his jury waiver was “not knowingly and intelligently made because he was not advised on the record of the possible prison sentences which he might receive if convicted.” Id. at 25, 334 A.2d at 614. The possible sentence a defendant might receive was held not to be an essential ingredient for a waiver of a jury trial. Id. at 26, 334 A.2d at 615.

The Court distinguished the waiver of two rights: the right to a jury trial and the right to a trial. Waiving a jury trial does not affect the court’s sentencing alternatives, and the trial court need not inform the defendant of the sentencing alternatives. Id. However, when a defendant pleads guilty, he must be made aware of the consequence which necessarily follows, sentencing. Id. at 26 n. 9, 334 A.2d at 615 n. 9.

This Court has followed the principles explained in Commonwealth v. Boyd, supra.

Appellant asserts that counsel was ineffective for failing to object to the colloquy in which he waived his right to trial by jury. According to appellant, the colloquy was defective because the court did not inform him of the possible sentences he could receive. Our Supreme Court has rejected an identical claim. Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975). Thus, trial counsel was not ineffective on this issue.

Commonwealth v. Jones, 272 Pa.Super. 444, 449, 416 A.2d 539, 542 (1979).

Furthermore, the sentencing statute which provides for a mandatory minimum sentence in the instant case is consistent with the foregoing authorities. In relevant part, the statute provides: “Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing.” 18 Pa.C.S.A. § 7508(b)- Furthermore, the Commonwealth possesses “sole discretion to invoke the provision under [18 Pa.C.S.A. § 7508].” Commonwealth v. Biddle, 411 Pa.Super. 210, 211-12, 601 A.2d 313, 314 (1991). Therefore, when a trial court advises a defendant of what rights a jury trial involves, no one but the Commonwealth knows whether the Commonwealth would seek a mandatory sentence.

There is a related, yet narrow and different, situation which renders a waiver of jury trial involuntary. In Commonwealth v. Carey, 235 Pa.Super. 366, 340 A.2d 509 (1975), the majority defined the issue before the Court as follows:

Here, appellant does not contend that counsel did not advise him of, or that for some other reason he did not understand the nature of, his right to a jury trial. Rather, his contention is that instead of waiving that right willingly, he waived it only because his counsel assured him that if he did waive it, his sentence would be no more than 6 to 23 months.
However, appellant does not claim that he waived his right to a jury trial because of any promise made to him by the district attorney or the court; he claims he did it because of a promise made to him by his counsel.

Id. at 371, 340 A.2d at 511. The Court stated that in order for the defendant to obtain relief, he would have to introduce evidence which corroborated his assertion of an involuntary waiver; otherwise, the waiver would be upheld. Id. at 372-73, 340 A.2d at 511. The defendant’s counsel testified “[I] shoved the waiver down the defendant’s throat, I say very frankly to this court, I led him to believe, I led him to the primrose path, that he wasn’t going to get more than six months.” Id. at 374, 340 A.2d at 512. Presented with a record which included counsel’s testimony and other corroborative evidence, the Superior Court concluded that appellant’s waiver of his right to a jury trial was involuntary because he relied upon counsel’s misrepresentation. Id.

Relying upon Commonwealth v. Carey, supra, this Court in another case reasoned that “the voluntariness of a waiver may be vitiated by misrepresentation as to sentencing if the defendant is shown to have relied on the misrepresentation when making the decision to waiver a jury trial.” Commonwealth v. Byng, 364 Pa.Super. 636, 639, 528 A.2d 983, 985 (1987), citing Commonwealth v. Carey, supra. In Byng, however, we held that the defendant did not establish his burden of showing both a misrepresentation as to sentencing and reliance on the misrepresentation.

Here, the lower court found that its misrepresentation of the range of sentences appellee might receive presumptively rendered the waiver of the right to trial by jury involuntary. Lower Court Opinion at 9. We reject such a per se rule. Because there was no showing that appellee relied upon the court’s misrepresentation in waiving his right, the lower court finding was an abuse of discretion. Commonwealth v. Carey, supra, [235 Pa.Super.] at 372, 340 A.2d at 511. Such a showing of reliance upon the misrepresentation is necessary because, although sentencing options may play a role in defendant’s decision to waive his right to a jury trial, such information is not essential to an understanding of the nature of the right waived. Commonwealth v. Boyd, 461 Pa. 17, 25-26, 334 A.2d 610, 615 (1975). Under this rationale, a defendant must show that a court’s misstatement regarding sentencing had a direct effect upon his decision to waive his right to a jury trial.

Commonwealth v. Byng, supra 364 Pa.Super. at 640, 528 A.2d at 985.

Pursuant to the above principles, the trial court in the instant case had no duty to advise appellee that if he were found guilty by the judge, he would face mandatory sentences. Therefore, appellee was not entitled to a new trial based upon the lack of notice that he could face a mandatory minimum sentence if he were eventually found guilty and if the Commonwealth decided to apply 18 Pa.C.S.A. § 7508.

Because the trial court mentioned the sentences which could have followed a guilty verdict, we review the record to determine whether appellee established both a misrepresentation by the trial court and his reliance upon such misrepresentation. Appellee does not aver that the trial court promised a lenient sentence in exchange for his waiver of a jury trial. Instead, appellee argues that he was entitled to a disclosure that if he were found guilty by the trial judge, he would be subject to certain mandatory minimum sentences. Appellee further contends that the trial court’s statement that “these are both felonies and are punishable by up to five years in jail and/or fines ...,” N.T. July 20, 1990 at 4, perpetrated an idea that the trial court maintained discretion and flexibility and was not compelled to sentence appellee to prison. The trial court agreed that appellee was not sufficiently informed. We cannot.

The trial court merely stated that the crimes of possession with intent to deliver LSD and oxycodone “are punishable by up to five years in jail and/or fines of $15,000 in the LSD and 15 years and $250,000 on the oxycodone.” N.T. July 20, 1990 at 4. That statement is an accurate depiction of what the maximum sentences could be. See 35 P.S. §§ 780 — 113(f)(2), (1). If appellee were found guilty of possession with intent to deliver, then the harshest sentence which he could have received would be both jail time and monetary fines. The trial court did not promise appellee that he would receive a sentence which was less than the mandatory minimum in exchange for appellee’s waiver of his right to trial by jury. Thus, the trial court did not misrepresent anything to appellee.

Even if the trial judge’s reference to the maximum penalty could be construed as a misrepresentation, appellee did not establish that he relied on a misstatement. At the post-trial motion hearing, appellee claimed that he would not have waived his right to a jury trial had he been informed that he would be subject to a mandatory minimum sentence.

[DISTRICT ATTORNEY]: I have a question for Mr. Golensky. [sic]. Why is it that you in retrospect or why is it that you think a jury trial would be better for you?
THE DEFENDANT: That’s 12 people just like me. They can hear and decide for themselves. I was told if the judge would hear my case and that I was never in trouble before, he would take that into consideration.
I signed so many papers. A lot of things told to me went right through my head.
[DISTRICT ATTORNEY]: Why would you have had a better chance in front of a jury than you would have had in front of a judge?
THE DEFENDANT: They would hear it and decide.

N.T. January 27, 1992 at 8-9. Appellee’s counsel did not corroborate this testimony as required by Commonwealth v. Carey, supra. Instead, counsel stated that she did not remember whether she had advised appellee that he could face a mandatory minimum sentence. See N.T. January 27, 1992 at 17 (“My policy is to, but I don’t know. I can’t say for a fact.”).

Appellee’s mere assertion, that he would not have waived his rights had he been informed of a mandatory minimum sentence upon his possible conviction by a judge, does not establish that he relied upon the judge’s mention that the maximum sentence possible would be up to five years in jail and/or a $5,000.00 fine. Appellee’s statement merely reflects that he wished that a jury had tried him because he could not have fared worse than he had in the bench trial where he was found guilty of all four charges. Appellee does not explain why he would have opted for a different forum had he been informed that he would receive jail time. Indeed, when appellee waived his right to a jury trial, he was on notice that he could have been sentenced to the statutory máximums which were far greater than the mandatory mínimums which the Commonwealth sought. Therefore, appellee did not establish that he relied upon a misrepresentation by the court. See Commonwealth v. Scott, 345 Pa.Super. 86, 89, 497 A.2d 656, 658 (1985) (“When appellant agreed to waive the jury, he already knew” that sentence which he received was possible.).

Furthermore, during the colloquy, and after the court’s mention of maximum sentences, appellee responded in the negative to the following question: “Has anybody promised you anything, threatened or coerced you in any way to get you to do this?” N.T. July 20, 1990 at 8. Hence, any assertion that appellee relied upon a promise of a lenient sentence is belied by the record. For this reason also, appellee did not rely upon any alleged misrepresentation by the trial court.

Appellee’s case does not come within the exceptions delineated in Commonwealth v. Byng, supra and Commonwealth v. Carey, supra. Instead, his was an ordinary waiver of jury trial which is valid when three essential elements are met. Those elements were explained to appellee, see N.T. July 20, 1990 at 5-9, and appellee does not contend otherwise. Appellee’s right to a jury trial was knowingly and voluntarily waived despite the failure of either the trial court or counsel or the Commonwealth to explain the mandatory minimum sentences to him before he waived his right to a jury trial. See Commonwealth v. Boyd, supra. The trial court erred in concluding that appellee’s waiver was infirm because appellee was not informed of the sentences he would face if he were found guilty and if the Commonwealth sought a sentence pursuant to 18 Pa.C.S.A. § 7508. Hence, we reverse the order granting appellee’s post-trial motions.

Order reversed.

      . Although this case was originally captioned as Commonwealth of Pennsylvania v. Golensky, the correct spelling of appellee’s last name is "Golinsky.” See, e.g., R.R. at 16a (appellee’s signature).

      . We note that this Court has resisted invitations to add to the list of inquiries necessary for a valid guilty plea. See, e.g., Commonwealth v. Harvey, 407 Pa.Super. 545, 595 A.2d 1280 (1991), allocatur denied, 530 Pa. 652, 608 A.2d 28 (1992) (guilty plea colloquy need not inform defendant of possibility of severing consolidated charges).

      . In Carey, the court relied upon a guilty plea case, Commonwealth v. Baldwin, 219 Pa.Super. 153, 280 A.2d 654 (1971), to inject the principal that a waiver of a jury trial may be set aside if the advice of counsel was based upon inadequate or erroneous information about sentencing. Commonwealth v. Carey, supra 235 Pa.Super. at 372, 340 A.2d at 511, citing Commonwealth v. Baldwin, supra.

      .- Appellant implies that he would eventually be subject to a sentence which did not include the mandatory minimum sentence in 18 Pa. C.S.A. § 7508 if he had been tried in front of a jury. Such an assertion is spurious. The statute is implemented in such a way that the arbiter of guilt or innocence should not be informed about the consequences of a guilty verdict. Cf. Commonwealth v. Moore, 373 Pa.Super. 603, 612-13, 542 A.2d 106, 111 (1988) (applying 18 Pa.C.S.A. § 9712 — sentences for offenses committed with firearms). This statute, therefore, shows the General Assembly's understanding that the question of guilt is not relevant to the punishment which a guilty defendant receives.
      The function of the jury is to determine guilt or innocence. According to the Pennsylvania Supreme Court "the jury has nothing to do with the punishment of an offense, ... [i]n all other instances, punishment is a matter solely for the court and not for the jury to know or consider during its deliberations.” Commonwealth v. Lucier, 424 Pa. 47, 49, 225 A.2d 890, 891 (1967). See also Commonwealth v. Waters, 334 Pa.Super. 513, 522, 483 A.2d 855, 860 (1984); Commonwealth v. Dombrauskas, 274 Pa.Super. 452, 457, 418 A.2d 493, 496 (1980).

        Commonwealth v. White, 350 Pa.Super. 457, 504 A.2d 930 (1986).
      In the instant case, the trial court happened to be unaware that the defendant, if found guilty, would have been subject to a mandatory jail sentence. See N.T. January 27, 1992 at 3. Therefore, whether appellee was tried by a jury or by the judge, he would have been before a forum which was concerned with one question: did the Commonwealth prove beyond a reasonable doubt that appellee committed the crimes with which he was charged? Hence, even though appellee baldly alleges that he would have preferred a chance to face jurors, such a plea represents only a wish to have a second chance; it does not rest upon any logical or reasonable basis that he would have strategized differently if, upon conviction, he would surely go to jail. To paraphrase our rationale in Commonwealth v. Moore, supra, appellee’s argument fails to establish that he would have garnered an advantage by electing to be tried by a jury. Id. 373 Pa.Super. at 614, 542 A.2d at 111.

      . The trial court did not base its holding upon the fact that he stated what the maximum sentences could be. Instead, the court expressed its belief that appellee had a right to be told of any mandatory minimum sentences before he waived his right to a jury trial. See N.T. January 27, 1992 at 13 ("it would seem to me if mandatory sentence is in the case, we ought to be telling the defendant that right up front”).

      . In Commonwealth v. Scott, supra, we also explained:
      The [trial] judge did not, however, commit error in stating that a conviction for third-degree murder carried a ten to twenty year sentence. At the time of the jury waiver colloquy the judge had no knowledge of appellant’s previous murder convictions. It can hardly be said that the court was in error in not informing appellant about the enlargement of sentence when the record of appellant's prior convictions was not before the court.

        Id. at 88-89, 497 A.2d at 657-58. Likewise, in the instant case, the trial court "had no idea what the amount of drags [was] going to be.” N.T. January 27, 1992 at 3. Therefore, as in Commonwealth v. Scott, supra, the trial court cannot be held to have misinformed appellee because the court did not know that appellee was being charged with a crime that might require a mandatory sentence. As we discussed above, a court, as trier of fact, has no need to know the eventual sentence which the defendant would face if it found the defendant guilty. And, given the Commonwealth's discretion to apply the sentence, the court could not know for sure that it would apply. Commonwealth v. Biddle, supra.

      . Likewise, appellee did not receive ineffective assistance of counsel. See Commonwealth v. Jones, supra (counsel not ineffective for failing to object to colloquy at waiver of jury trial where colloquy did not advise defendant of sentencing possibilities). As we have discussed above, the colloquy in the instant case addressed the three essentials. Moreover, appellee did not establish that counsel or the court made material misrepresentations upon which he relied.


author: JOHNSON, Judge.

text:
    626 A.2d 1231
    COMMONWEALTH of Pennsylvania v. Garland ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 3, 1993.
    Filed June 22, 1993.

      Lee Mandell, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge.

Following a bench trial, the Honorable Robert A. Latrone found Garland Adams guilty of second degree murder, robbery, conspiracy and carrying a firearm on a public street. Post-verdict motions were denied and Judge Latrone sentenced Adams to life imprisonment.

On appeal, Adam’s sole claim is that Judge Latrone erred in denying Adam’s motion for a mistrial following a question asked by the prosecutor on cross examination of a defense character witness. We are asked to revisit the circumstances under which a character witness may be cross-examined where the defendant’s reputation as a peaceful and law-abiding citizen has been placed in evidence. We find the cross-examination here involved to have been proper in testing the credibility of the witness and the soundness of the witness’ evaluation of the defendants reputation. We conclude that the claim on appeal is without merit and affirm.

Lee Mandel, court-appointed trial defense counsel had called eleven witnesses to testify to Adam’s reputation for honesty and integrity in the community. All of the witnesses gave their name, age, their relationship to the defendant, and the length of time they had known the defendant. Waiver Trial Transcript, October 28, 1991, pages 268-274. Attorney Mandel then proposed a stipulation that if they were called to testify individually, they would say that among those people that they and Adams both knew, Adam’s reputation for being a peaceful, law-abiding citizen was excellent. Id. at 274. The Assistant District Attorney, Ann Ponterio, then asked to question one of the eleven character witnesses. The following examination ensued:

CROSS-EXAMINATION
BY MS. PONTERIO:
Q. Mr. Martin, you say that you have spoken to people in the neighborhood and that the defendant has a reputation for being a peaceful, law-abiding person; is that correct?
A. Yes.
Q. Do you remember giving a statement to the police?
A Yes.
Q. Do you remember telling the police that you know that the defendant sells bags of powder cocaine?
MR. MANDEL: Move for a mistrial.
MS. PONTERIO: Now he’s saying that he has a reputation for being a peaceful, law-abiding person—
THE COURT: Yes, but the fact of an arrest is irrelevant. If there is a conviction—
MS. PONTERIO: I didn’t ask about an arrest. I am asking him about his reputation for being a peaceful, law-abiding person.
THE COURT: I will sustain the objection. Strike the question from the record. The motion for mistrial is denied. I didn’t hear him answer anything ..
MS. PONTERIO: Thank you, Your Honor.
MR. MANDELL: Thank you, Mr. Martin. You can step back.

Waiver Trial Transcript, supra at 275-76.

We have examined the certified record and reviewed the briefs of the parties. Adams, in his Brief, argues that, by framing the question to the character witness “in terms of the witness’s knowledge of a specific bad act of [Adams], the prosecutor clearly abrogated the rule” barring cross-examination aimed at establishing particular acts of misconduct. Brief for Appellant, page 5. We disagree.

Character witnesses, like any other witnesses, can be subjected to cross-examination, and it is the scope of the cross-examination that has been a troublesome area for courts, commentators and the profession. Commonwealth v. Scott, 496 Pa. 188, 193, 436 A.2d 607, 610 (1981). Where a character witness has testified to a defendant’s reputation for being a law-abiding citizen, that witness may be impeached, on credibility grounds, just like any other witness. Id.; see also Commonwealth v. King, 287 Pa.Super. 105, 108, 429 A.2d 1121, 1122-23 (1981) (cross-examination of rape case defendant as to good character proper, as to having child by another woman, where both character witness and defendant had testified as to defendant’s good deportment around women).

A distinction is drawn between cases where it is sought to prove particular acts of misconduct and those where the purpose of the examination is to test the accuracy of the testimony by showing either that the witness is not familiar with the reputation concerning which he has testified or that his standard of what constitutes good repute is unsound. Commonwealth v. Becker, 326 Pa. 105, 114, 191 A. 351, 356 (1937). Evidence of the former is inadmissible. Evidence of the latter may be shown, provided the actual purpose of the cross-examination is not to show commission by the defendant of a specific crime of which he or she is not now accused, but to test only the credibility of the character witness. Commonwealth v. Hurt, 163 Pa.Super. 232, 235, 60 A.2d 828, 829 (1948).

Thus, in Commonwealth v. Butts, 204 Pa.Super. 302, 204 A.2d 481 (1964), the prosecution was permitted to cross-examine a character witness, over objection, as to the fact that the witness had been drinking with the defendant and a friend after work on the afternoon of a vehicular accident which resulted in the death of a thirteen-year-old pedestrian and culminated in trial of the motor vehicle operator on charges of involuntary manslaughter. The court reasoned that the cross-examination attacked the character witness’ credibility by showing the witness was actually one of the defendant’s drinking buddies, and that the witness’ standard of what constitutes good repute for sobriety was unsound. Id. at 311, 204 A.2d at 486.

In the case now before us on appeal, the question to the character witness was:

Q. Do you remember telling the police that you know that the defendant sells bags of powder cocaine?

At a minimum, we view the only question here under attack as going directly to whether the character witness, who was claiming that Adams had a good reputation for being a law-abiding person, possessed a sound standard as to what constitutes evidence of good repute. Commonwealth v. Becker, supra. Moreover, to the extent that the prosecutor was prepared to prove, either on cross-examination or on rebuttal, that the witness did, in fact, state to the police that the witness knew the defendant, Adams, sells bags of powder cocaine, this goes directly to the credibility of the character witness and constitutes permissible cross-examination. We are not here concerned' with what the witness heard from others regarding specific acts of misconduct. We are focusing on what the character "witness, himself, had said to law enforcement persons and how the content of those statements may have informed the witness’ ability to make sound value judgments.

The trial judge immediately sustained the objection to the question and directed that the question be stricken from the record. The trial judge did not, therefore, ascertain on the record that the prosecutor was prepared to present testimony that the character witness, Martin, had advised a police officer of the knowledge that Adams sold cocaine. In finding that the question was proper, we assume that Ms. Ponterio, the Assistant District Attorney, was prepared to present such record testimony. We do not mean to endorse interrogation where there is no evidentiary basis for the question.

Character evidence may, in and of itself, provide sufficient evidence to raise a reasonable doubt as to guilt and, thus, require a verdict of not guilty, Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989). The weight to be afforded such evidence, therefore, is a serious matter. While we agree completely with the ruling of the most distinguished trial judge which denied the motion for mistrial, we are not persuaded that the question, as posed by the prosecutor, was “framed in an inappropriate manner,” as suggested by Judge Latrone. Opinion, January 19, 1993, page 41. Rather, we find the question to be a permissible means of testing the witness’ credibility, along with testing the soundness of the witness’ process of establishing a good reputation for being a law-abiding person.

It is well settled that “character witnesses may legitimately be questioned as to whether or not they ever heard persons in the neighborhood attribute particular offenses to the defendant.” Commonwealth v. Amos, 445 Pa. 297, 300, 284 A.2d 748, 750 (1971) citing Commonwealth v. Jenkins, 413 Pa. 606, 607-608, 198 A.2d 497, 498 (1964) (emphasis in original). Here, the witness had given a statement to the police investigating the offenses which resulted in the trial at which the witness was testifying. That statement did not refer to a specific act of prior misconduct but, instead, attributed to the suspect (who became the defendant) acts of illegal conduct, i.e., sale of powder cocaine. We hold that such a witness, who has himself given a statement to law enforcement officials which places into question the defendant’s illegal behavior based upon the witnesses own knowledge, can legitimately be questioned as to how that witness’ belief as to the defendant’s reputation for being a law-abiding person is influenced by the witness’ personal knowledge of the defendant’s illegal behavior. Commonwealth v. Becker, supra. The evidence is admissible to test the credibility of the character witness. Compare Commonwealth v. Hurt, supra.

We find the question posed by the prosecutor, Ms. Ponterio, to be appropriate under all the circumstances, and therefore the response, had it been given, to be admissible as evidence. Since the line of questioning was proper, the motion for a mistrial was without merit. Accordingly, we affirm the judgment of sentence.

Judgment of sentence AFFIRMED.

MONTGOMERY, J., concurs in the result.


author: CIRILLO, Judge.

text:
    626 A.2d 1235
    HISCOTT AND ROBINSON, Appellant, v. Jack F. KING.
    Superior Court of Pennsylvania.
    Argued April 22, 1993.
    Filed June 22, 1993.

      William H. Robinson, Jr., Stroudsburg, for appellant.
    Richard D. Gorski, Bethlehem, for appellee.
    Before CIRILLO, KELLY and CERCONE, JJ.
   CIRILLO, Judge.

Appellant Hiscott and Robinson, a law firm, appeals from a directed verdict in favor of appellee Jack F. King (King) in an action brought by Hiscott and Robinson to recover fees for services rendered before the firm was discharged by King. We affirm.

King was injured as a result of an automobile accident in September, 1987. King subsequently employed attorney William H. Robinson of Hiscott and Robinson to represent him in a personal injury action against the tortfeasor. Hiscott and Robinson provided King with a contingency fee agreement which provided that it would receive a fee of either 33{é% of all sums recovered if the matter settled prior to pre-trial conference, or 40% of all sums recovered if the case settled following the commencement of the pre-trial conference or of those sums recovered at trial. By Mr. Robinson’s own testimony at trial, he spent a total of 8.27 hours on King’s case.

King became dissatisfied "with Hiscott and Robinson’s services and in September, 1988 he discharged the firm. Hiscott and Robinson then released King’s file to Dennis P. Ortwein, Esq. (Ortwein), a personal injury lawyer retained by King. King entered into a new contingency agreement with Ortwein and Ortwein eventually negotiated a settlement, receiving payment from both the tortfeasor’s liability policy and King’s underinsurance coverage. The amount of the settlement totaled $105,000.00, $35,000.00 of which went to attorney Ortwein pursuant to the contingency fee agreement. Ortwein set aside $6,000.00 from his fees to cover any claim made by Hiscott and Robinson.

Hiscott and Robinson subsequently filed suit against King to recover “a fair and equitable fee based upon the relative value of services performed.” A jury trial ensued and, following the close of the evidence, the trial court directed a verdict for King on the ground that Hiscott and Robinson, through attorney Robinson’s own testimony, admitted that he had represented King pursuant to a contingent fee agreement, entitling Robinson to no fee in the event that he failed to obtain a recovery on King’s claim. Robinson had, in fact, recovered nothing for King.

Hiscott and Robinson filed post-trial motions challenging the trial court’s entry of a directed verdict in favor of King. The trial court, pursuant to Pa.R.C.P. 227.1(a)(5), granted post-trial relief by entering an order “to resolve the issue of the nature and amount of compensation to be afforded to [Hiscott and Robinson] outside of the scope and terms of the contingent fee agreement.” Specifically, the order was in the form of a verdict for Hiscott and Robinson in the amount of $1,199.15, which represented the 8.27 hours of work by Robinson at a fee of $145.00 per hour.

This appeal followed and Hiscott and Robinson raises the following issues for our consideration:

(1) Was it reversible error for the trial court to enter a directed verdict against Hiscott and Robinson?
(2) Was it reversible error for the trial court to exclude evidence of the services rendered by attorney Ortwein?
(3) Was it reversible error for the trial court to base its order, in part, on off-the-record facts?

When deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the non-moving party and must accept as true all evidence which supports that party’s contention and reject all adverse testimony. Cooke v. Travelers Ins. Co., 350 Pa.Super. 467, 504 A.2d 935 (1986). A directed verdict can only be granted where the facts are clear and there is no room for doubt. Id. On review, an appellate court can reverse only if an abuse of discretion or error of law which controlled the outcome of the case occurred. Boyce v. Smith-Edwards-Dunlap Co., 398 Pa.Super. 345, 354, 580 A.2d 1382, 1386 (1990), appeal denied, 527 Pa. 639, 593 A.2d 413 (1991); Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 491 A.2d 835 (1985). We find that the trial court did not abuse its discretion in entering the directed verdict.

Hiscott and Robinson claims that the court erred in not allowing the jury the opportunity to determine the amount of compensation to which the firm was entitled. It is its position that the relative value of the services performed by both lawyers (i.e. William Robinson and Dennis Ortwein) provides the appropriate standard for this determination and that such value should not be limited to an hourly rate.

Despite Hiscott and Robinson’s many references to being dismissed “without cause,” it has long been the law that a client has a right to discharge an attorney, with or without cause. Commonwealth v. Scheps, 361 Pa.Super. 566, 574-75, 523 A.2d 363, 367 (1987), appeal denied, 516 Pa. 633, 533 A.2d 91 (1987); see Richette v. Solomon, 410 Pa. 6, 187 A.2d 910 (1963); Sundheim v. Beaver County Bldg. & Loan Ass’n., 140 Pa.Super. 529, 14 A.2d 349 (1940). The right of a client to terminate the attorney-client relationship is an implied term of every contract of employment of counsel, at least where the attorney has no vested interest in the case or its subject matter. Scheps, 361 Pa.Super. at 575, 523 A.2d at 367. In determining the method of compensating attorneys who are released from serving their clients in a case such as this one, we look to the rule set forth in Sundheim, supra:

A client may terminate his relation with an attorney at any time, notwithstanding a contract for fees, but if he does so, thus making performance of the contract impossible, the attorney is not deprived of his right to recover on a quantum meruit a proper amount for the services which he has rendered.

Id., 140 Pa.Super. at 533, 14 A.2d at 351; accord Dorsett v. Hughes, 353 Pa.Super. 129, 133-34, 509 A.2d 369, 371 (1986). See also Lampl v. Latkanich, 210 Pa.Super. 83, 231 A.2d 890 (1967) (discharged attorney may recover under quantum meruit); Thole v. Martinog, 56 Pa.Super. 371 (1914) (when client through his own action makes it impossible for attorney to perform the contract, quantum meruit recovery is permitted).

It is clear from our review of the record that the contract for legal services providing for a contingent fee had been terminated at a time when, under its terms, there was nothing due to Hiscott and Robinson as compensation. Moreover, Hiscott and Robinson fails to cite any Pennsylvania case law to support its position that the relative workload of both attorneys should be compared and weighed by a jury in order to arrive at an appropriate amount. The trial court, therefore, did not abuse its discretion in rendering a directed verdict in favor of King.

Furthermore, the trial court did not abuse its discretion when it granted post-trial relief to Hiscott and Robinson. In light of the case law set forth above, it is clear that Hiscott and Robinson is limited to a quantum meruit-based recovery. The hours spent by the firm on King’s case were clearly admitted into evidence. There was no need, however, to use the jury simply for purposes of calculating the mathematically correct figure. Rather, the trial judge correctly considered the 8.27 hours spent on the King case at the $145.00 hourly fee charged by Hiscott and Robinson in arriving at the correct remedy. The trial court’s post-trial relief order was a proper one; “courts have the inherent authority to enter any appropriate order.” Fiorenza v. Kohn, 396 Pa.Super. 1, 577 A.2d 1384, 1386 (1990). See Pa.R.C.P. 227.1(a)(1) & (4), (5) (trial court has inherent authority to (1) order a new trial as to all or any of the issues; or ... (4) affirm, modify or change the decision or decree nisi; or (5) enter any other appropriate order). Furthermore, absent a clear abuse of discretion or an error of law which controlled the outcome of the case, we will not disturb a trial court’s decision in this regard. Fiorenza at 4, 577 A.2d at 1386; Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 557 A.2d 730 (1989), appeal denied, 523 Pa. 646, 567 A.2d 650 (1989). Review of the record indicates that the court did not abuse its discretion in issuing this order granting post-trial relief. The court has clearly set forth in its opinion its reasons for both the directed verdict and the subsequent modification of that verdict; it would be pointless to require a new trial.

Order affirmed.

      . Hiscott and Robinson raised just one issue in its brief in support of its motion for post-trial relief, namely, whether it was appropriate for the trial court to grant a directed verdict. The trial court subsequently modified its decision and, by order dated November 30, 1992, entered a verdict for Hiscott and Robinson in the amount of $1,199.15 calculated to represent the fee owed to Hiscott and Robinson for its 8.27 hours spent on King’s case, discussed infra. Hiscott and Robinson’s appellate brief includes this November 30, 1992 order as the "order in question,” however, in its "statement of questions involved,” primarily challenges the directed verdict.

      . Mr. Robinson’s records indicate that these hours were spent preparing and filing a complaint, reviewing and mailing correspondence on King's behalf, reviewing medical bills, meeting with King and his wife and engaging in telephone conferences.

      . Hiscott and Robinson admitted at oral argument that it was aware of the $6,000.00 set aside for its benefit if it chose to accept this amount. The firm did not, however, find this to be adequate compensation.

      . The record belies Hiscott and Robinson’s third issue on appeal, thus, it will not be addressed further.

      . For this reason we are unpersuaded by Hiscott and Robinson’s attempts to defend its position regarding the relative workload of both attorneys and, thus, find no merit to its second issue on appeal.


author: HUDOCK, Judge.

text:
    626 A.2d 1238
    COMMONWEALTH of Pennsylvania, Appellee, v. James LEE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 19, 1993.
    Filed June 28, 1998.

      Marlene Cooperman, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge and HUDOCK and BROSKY, JJ.
   HUDOCK, Judge.

This is an appeal from the judgment of sentence imposed upon Appellant after a bench trial in which he was convicted of third degree murder and possession of an instrument of crime. Timely filed post-verdict motions were denied by the trial court, and Appellant was sentenced to a term of nine and one-half to nineteen years incarceration for murder and to a concurrent term of one to two years for possessing an instrument of crime. No appeal was taken. Thereafter, Appellant filed a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed). An amended petition was filed by counsel and the PCHA court granted Appellant’s motion to file an appeal to this Court nunc pro tunc. On appeal, the sole issue raised by Appellant is whether there was sufficient evidence of malice to support his conviction of third degree murder. We affirm.

The facts underlying Appellant’s convictions were summarized by the trial court as follows:

On June 9,1985, at approximately 10:10 p.m., a Philadelphia Police Officer, while on patrol in the 4700 Block of Frank-ford Avenue was stopped by [Appellant]. At that time, [Appellant] stated to the police, “Officer, I have a problem. Ijust [sic] killed my girlfriend.” After determining the location of the alleged crime, the Police Officer drove to 4613 Hedge Street, where, in the third floor apartment, the body of Rosa Delgado, a 20-year old Hispanic female was found (N.T. 12/20/85, pp. 5-9).
[Appellant] was immediately placed into custody, handcuffed, and transported to the homicide division of the Police Department at 8th and Race Streets.
The Police also found and took into custody a 16-gauge sawed-off shotgun owned by [Appellant], which was turned over to the firearms unit.
At 10:45 p.m. on June 9, 1985, [Appellant], while in the homicide division, gave a statement to the Police after being advised of and waiving his rights to remain silent or to speak to counsel.
That statement, which was admitted into evidence indicated that [Appellant] and the deceased were having a fight, when [Appellant] “reached over and picked up a shotgun that [he kept] in the house loaded, and it went off.” (N.T. 12/20/85, p. 41).
After completion of the statement, [Appellant] was taken to the hospital at 11:50 p.m., on June 9, 1985, to be treated for a cut on his forehead, approximately [4 [-] lk inch and was returned to the homicide division at 12:35 a.m. on June 10, 1985.
Testimony was also presented by Detective John O’Rourke of the Firearms Identification Unit who testified that he received the sawed-off 16-guage [sic] shotgun from the Mobile Crime Detection Unit of the Police Department. It was a Savage Arms Co., Stevens Model, 940D, Single-shot shotgun of 16-gauge without a serial number. The barrel of the shotgun was cut to 9% inches and buttstock was cut off at about 7% inches behind the triggerguard, giving the shotgun an overall length of approximately 18% inches. The gun was test fired and found to be operable.
Further testimony was given by [D]etective O’Rourke that after examining the weapon it was his opinion that the weapon could not be discharged accidentally, that is, without cocking it first, and then pulling the trigger.
Testimony was also given by Dr. Paul J. Hoyer, Assistant Medical Examiner, who conducted an autopsy on the body of Rosa M. Delgado on June 10, 1985. The pertinent findings were of an irregular 2% inch by 1% inch shotgun entrance wound on the left side of the face, two inches to the left of the midline, and four inches below the top of the head entering from the left side of the eye, and going into the brain from front to back.
The doctor further testified that the shotgun was fired at approximately from 5% inches from the face. It was the doctor’s opinion that the cause of death was a shotgun wound to the head and the manner of death was homicide.

Trial Court Opinion at pp. 2-4 (except where noted, citations to notes of testimony omitted).

Appellant testified on his own behalf. As to his version of the events of the night in question, Appellant denied that he and the victim had been arguing and that he threatened to harm the victim. He further asserted that he picked up the gun while cleaning the apartment and held it pointed down to put it on top of the refrigerator, but that he accidentally shot the victim' in the head from just inches away. Appellant admitted that he did not seek medical attention or other help for the victim, and went to see his mother before finally flagging down a police officer.

As noted above, Appellant claims that there was insufficient evidence of malice necessary to support a conviction of third degree murder. We disagree. The standard for reviewing a challenge to the sufficiency of the evidence is well-established:

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976).

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). “There is no requirement that a homicide ... be proven by eyewitness testimony. Circumstantial evidence may be sufficient to prove any element, or all of the elements of the crime.” Id. at 250, 546 A.2d at 1107-08 (citations omitted). Moreover, “[although no single bit of evidence may conclusively establish guilt, the verdict will be sustained where the totality of the evidence supports the finding of guilt.” Id., (quoting, Commonwealth v. Crowson, 488 Pa. 537, 543, 412 A.2d 1363, 1365 (1980)). Finally, it is within the province of the fact finder, in this instance the trial court, to believe all, some, or none of the evidence. Commonwealth v. Gonzales, 415 Pa.Super. 564, 609 A.2d 1368 (1992).

The definition of malice is well-settled:

Malice consists of a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Commonwealth v. Drum, 58 Pa. 9, 15 (1868); see also Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981) ... [Moreover] malice may be found where the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause serious bodily injury. Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982).

Commonwealth v. Cottam, 420 Pa.Super. 311, 342-343, 616 A.2d 988, 1004 (1992) (citations' omitted). Malice may be inferred from “the attending circumstances of the act resulting in the death.” Commonwealth v. Gardner, 490 Pa. 421, 424, 416 A.2d 1007, 1008 (1980), (quoting Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975)). One such circumstance is evidence that the defendant used a deadly weapon upon a vital part of the victim’s body; this inference alone is sufficient to establish malice. See generally, Commonwealth v. Torres, 396 Pa.Super. 499, 578 A.2d 1323 (1990) and the cases cited therein. Clearly, the Appellant’s shooting of the victim in the head, at close range, is a sufficient use of a deadly weapon upon a vital part of the body. Cf. Commonwealth v. Rodgers, 500 Pa. 405, 456 A.2d 1352 (1983) (shotgun blast to. the head at close range establishes the specific intent to take life).

Appellant takes issue with reliance on the inference of malice from using a deadly weapon upon a vital part of the body by citing this Court’s decision in Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462 (1988) (en banc), reversed on other grounds, 524 Pa. 551, 574 A.2d 584 (1990). In Carbone, this Court reversed Carbone’s first degree murder conviction stating:

... it is well settled that the intentional use of a deadly weapon on a vital part of the body raises a permissible inference of malice. [Commonwealth v. Hinchcliffe, 479 Pa. 551, 554, 388 A.2d 1068, 1070, cert. denied, 439 U.S. 989 [99 S.Ct. 588, 58 L.Ed.2d 663] (1978) ]. This inference has a dual purpose; it allows a jury to infer malice, Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Boyd, 463 Pa. 343, 344 A.2d 864 (1975), as well as a specific intent to kill, Commonwealth v. Toledo, 365 Pa.Super. 224, 529 A.2d 480 (1987); Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979).
The finder of fact is not required to ignore this inference merely because the defendant testifies that he did not intend to take a person’s life. [Citations omitted.] Here, the Commonwealth relies on that inference of malice to justify the verdict. The jury was not required to disregard the inference merely because Carbone testified otherwise. However, the Commonwealth’s reliance on the inference from the fact of the stabbing is misplaced under the facts of this case.
... In this case, the inference of malice that would normally arise from the use of a deadly weapon upon a vital part of the body of the deceased, absent further explanation, is negated by other evidence presented in this case by the Commonwealth. Commonwealth v. Caye, [supra]. ******
An inference of malice cannot be accepted in a vacuum. The law infers or presumes from the use of a deadly weapon, in the absence of circumstances of explanation or mitigation, the existence of the mental element — intent, malice, design, premeditation, or whatever term may be used to express it — which is essential to culpable homicide. See Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947). See generally 40 Am.Jur.2d Homicide § 265 (1968). It is necessary to look at all of the Commonwealth’s evidence. In addition, the entire trial record must be evaluated, and all evidence actually received must be considered. [Citations omitted.]

Commonwealth v. Carbone, at 272-274, 544 A.2d at 467, 468 (emphasis in original). Thus, this Court found that the Commonwealth inappropriately relied on the above inference to establish malice. In addition, this Court found that the Commonwealth did not disprove Carbone’s claim of self-defense beyond a reasonable doubt. Such a failure of proof, according to this Court, also prevented the establishment of malice.

Allocatur was granted by our Supreme Court and this Court’s reversal of Carbone’s first degree murder conviction was reversed. Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990). Recognizing that the jury need not believe Carbone’s claim of self-defense, the high court reversed our decision and reinstated the judgment of sentence on the basis that “[t]he testimonial and physical evidence presented by the Commonwealth negated appellee’s version of the incident leading to the victim’s death, and gave the jury ‘a substantial object on which to rest and fold’ the wings of their perplexity. Thus, there was sufficient evidence for the jury to find beyond a reasonable doubt that appellee was not acting in self-defense when she killed the victim.” Id. at 562, 574 A.2d at 590. Additionally, our Supreme Court stated:

... where there is evidence from which a jury can reasonably infer malice, the Commonwealth has met its burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Hinchcliffe, supra, 479 Pa. at 557, 388 A.2d at 1071. It has long been the law of this Commonwealth that “the use of a deadly instrument on a vital part of the body is sufficient to establish the specific intent to kill required for a conviction of first degree murder.” Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800[, 802] (1972).

Id.

The above summary of the two decisions in Carbone clearly demonstrates that Appellant’s reliance on this Court’s decision in Carbone is misplaced. Initially, we note that our Supreme Court made no reference to the qualifying language as to the inference cited by this Court in Carbone. Moreover, even under the language of this Court’s decision in Carbone, use of the inference is inappropriate only when other evidence presented by the Commonwealth negates the inference. In the present case, there was no evidence presented by the Commonwealth which tended to negate the inference. Rather, it was only Appellant’s testimony which tended to negate the inference. As noted above, the finder of fact need not disregard the inference merely because Appellant testified to the contrary. See generally, Commonwealth v. Torres, supra.

This is especially true where evidence by the Commonwealth contradicted Appellant’s version of the events leading to the victim’s death and indicated a malicious killing. Appellant claimed that use of the inference was inappropriate because he accidentally fired the gun, because his actions after the shooting were consistent with an accidental shooting, and because he had no motive for shooting the victim. Each of these claims was contradicted, in large part, by other evidence presented by the Commonwealth, to-wit: A firearms expert testified that the gun could not be fired without first cocking the hammer and then pulling the trigger; Appellant himself conceded that he did not seek immediate medical attention for the victim following the shooting; and, finally, Appellant, on a prior occasion, stated to the police that he reached for the gun during a fight with the victim. The victim’s sister-in-law testified that Appellant and the victim had been arguing, that the victim threatened to leave Appellant, and that Appellant told the sister-in-law to leave or he would hurt both her and the victim. The fatal wound to the victim indicated the gun was fired at close range and Appellant received a facial wound when the gun recoiled. Under these circumstances, we find that the Commonwealth presented sufficient evidence of malice to enable the trial court, acting as fact finder, to conclude that Appellant was guilty of third degree murder.

Judgment of sentence is affirmed.

      . 18 Pa.C.S. §§ 2502(c) and 907(a), respectively.

      . The PCHA was repealed and substantially re-enacted as the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, Section 6 of Act 1988, April 13, P.L. 336, No. 47, § 3.

      . Thus, Appellant’s claim that the Commonwealth could not prove malice, due to its failure to show evidence that he pointed the gun at the victim, is without merit. When asked by his counsel, Appellant could not recall in which direction the gun was pointed when it allegedly went off. Upon further questioning by the Commonwealth and the trial court, Appellant stated that it was pointed toward the floor. The Commonwealth presented evidence that the victim was shot from a distance of only five and one-half inches from the victim's head and that Appellant admitted that he received a facial wound on his forehead between the eyes consistent when the gun recoiled after it was fired. From this evidence, the fact-finder could reasonably infer that Appellant took aim at the victim.

      . Malice can be inferred in a homicide prosecution from the failure of the defendant to seek medical care for the victim. Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975).