text:
    502 A.2d 717
    Theodore M. BERRY v. Anne M. ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1985.
    Filed Jan. 3, 1986.

      Dean B. Stewart, Jr., Norristown, for appellant.
    Stephen M. Feldman, Philadelphia, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, CIRILLO, OLSZEWSKI, BECK and TAMILIA, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an Order that appellant Anne M. Anderson pay delay damages to appellee Theodore M. Berry in addition to compensatory damages awarded by a jury. We hold that the trial court erred in imposing delay damages after February 25, 1982 without first conducting an evidentiary hearing to ascertain the appellant’s financial status from February 25, 1982 until the date of the verdict. For the purpose of the following discussion, we will assume that the facts stated in appellant’s new matter are true and that she is indigent. Of course, appellant still bears the burden of proving those facts on remand.

On June 3, 1980, appellee Berry initiated a lawsuit against the appellant as a result of an automobile accident which left Berry partially paralyzed. On February 25, 1982, twenty-two months before trial, the appellant offered to settle the case for the full amount of her insurance policy — $100,000. Appellee rejected the offer. On December 15, 1983, following a five-day trial, a jury returned a verdict in favor of appellee for $2,000,000. Appellee then filed a motion to mold the verdict to add delay damages as provided for by Pa.R.C.P. 238 (Rule 238). The Rule states in part:

(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15,1975, P.L. 390, 40 P.S. § 1303.101 et seq., shall
(1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
(2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
* * * * *
(e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.

In the motion, appellee argued that because appellant’s offer of $100,000 was far less than the $2,000,000 verdict, appellant must pay an additional $528,000 in delay damages. Appellant answered the motion by admitting the facts alleged, but added in new matter that she could pay neither the amount of the jury verdict nor the delay damages because she was impoverished. Appellee objected to the new matter on the grounds that the appellant’s financial status was irrelevant to whether delay damages should be assessed. The trial court sustained appellee’s objection, struck the new matter from appellant’s answer, and granted the motion to mold the verdict, thus adding delay damages to the compensatory damages. It is from that order that this appeal is taken. We are presented with the question of whether Rule 238 mandates that delay damages be assessed against all persons, regardless of their ability to pay.

The appellee urges us to apply Rule 238 automatically, without regard to “balancing of equities” or “the reasonableness of the defendant’s conduct.” Appellee’s Brief at 7. He contends that if we were to look beyond the literal language of the Rule, the result would be “totally unworkable”; the trial court would be required to inquire into the “personal wealth of the defendant” and “the equities of the situation,” thus contributing to the ponderousness of the judicial process. Id. To further support his position, appel-lee cites Pa.R.C.P. 127(b) which provides that “[w]hen the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Appellee’s Brief at 9.

In making this assertion, appellee assumes that clear words remain free from ambiguity, no matter the situation to which they are applied. But two types of ambiguity exist: patent ambiguities, which are readily apparent; and latent ambiguities, which only become obvious upon application of seemingly clear words. The law of contracts recognizes that the plain language of a contract may become ambiguous when a party attempts to perform its obligation. When a latent ambiguity arises, the language is then open to interpretation. Telex Corporation v. Balch, 382 F.2d 211 (8th Cir.1967).

In the instant case, Rule 238 presents an example of a latent ambiguity. The Rule excuses defendants from paying delay damages only in a limited number of situations, all of which are enumerated in the Rule. But this clear language clouds over when applied to an indigent defendant. The Rule is silent on the matter of defendants who lack the funds to make an offer of settlement sufficient to escape the imposition of Rule 238 “delay” damages. Does this silence mean that an ability to pay is assumed or does it mean that financial status is irrelevant? Because the words of Rule 238 are not “clear and free from all ambiguity,” Rule of Construction 127(b) does not aid us in interpreting the Rule, for clarity of language is a prerequisite to that section’s applicability. We therefore must look to Rule 127(c):

When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters (1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated; (3) the mischief to be remedied; (4) the object to be attained; (5) the prior practice, if any, including other rules and Acts of Assembly upon the same or similar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneous history of the rule; and (8) the practice followed under the rule.

To determine the Court’s intention in promulgating Rule 238, we look first to the history of the Rule.

The Supreme Court adopted Rule 238 in 1978 based on a recommendation by the Civil Procedural Rules Committee. The Rules Committee reasoned that congestion in the courts, poor incentives for early settlement, and inadequate sanctions against defendants who provoked lengthy delays between the commencement of lawsuits and trial necessitated Rule 238:

Statistics show that only 38 percent of these cases ever go to trial and only 25 percent ever go to verdict. Thirty-eight percent are settled without going to trial. Some are settled through pretrial conciliation techniques, but in too many cases meaningful negotiations commence only after a trial date is fixed or on the courthouse steps or in the courtroom, thus leading to delay in the disposition of cases and congestion in the courts. The present practice provides no incentive for early settlement.

8 Pa. Bulletin 2668 (1978). While these explanatory comments were not adopted by the Supreme Court as part of Rule 238, they disclose the problems the Rule was designed to alleviate.

In 1981, the Supreme Court was called upon to determine the constitutionality of Rule 238. After holding that the Rule was constitutional, the Court discussed the history and the purpose of the Rule:

[Rule 238] clearly reflects a primary desire to encourage pre-trial settlement____ By tolling the running of interest, this provision demonstrates the prominent goal of fostering early settlement. Undeniably, this rule serves to compensate the plaintiff for the inability to utilize funds rightfully due him, but the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.

Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 154 (1981), appeal dismissed sub nom., Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982).

Our Court has discussed Rule 238 when a verdict was entered against joint tortfeasors. In considering the purpose of the Rule, we noted that “[djefendants are given an opportunity to protect themselves from exposure to prejudgment interest by making a reasonable offer of settlement in good faith and in a timely fashion.” Baciotti v. Simmons, 346 Pa.Super. 23, 498 A.2d 1351 (1985).

Rule 238’s primary function, then, is to facilitate early settlements. Two categories of defendants are penalized under the Rule: defendants who make no offer at all and defendants who make inadequate offers. The facts are undisputed that the appellant made an offer which was, in view of the verdict, woefully inadequate. The question that remains is whether Rule 238’s goal of encouraging reasonable settlement offers in the nascent stages of lawsuits is met by penalizing a party incapable of making a “reasonable offer” as defined by the Rule. To resolve this question we must explore the consequences of the interpretation suggested by the appellee and that suggested by the appellant.

The appellee construes Rule 238’s silence regarding a defendant’s financial condition to mean that all defendants who fail to proffer reasonable terms of settlement must pay delay damages. Under such an interpretation, the appellant would have been required to offer $1,600,000 (with prompt cash payment) to avoid the added penalty. Appellant’s offer of $100,000 — which she asserts is the full amount of her available resources — could only have been looked at askance by the appellee, for delay damages alone imposed under Rule 238 exceeded the settlement offer by over $400,000.

We must ask, if we adopt the position advanced by the appellee, would we foster the clear cut goal of Rule 238 of promoting early settlement? If the appellant is indigent and she offered the appellee everything she had, would the threat of a severe penalty cause her to offer more? Obviously not. Rather, the impetus that moved the appellant to offer what presumably constitutes all her finances would be eliminated; an inadequate offer, even one that represents all a defendant’s valuable assets, would be treated as though no offer had been made at all. Such a result would do nothing more than indicate our brutal disregard for an individual’s special circumstances.

By adopting the appellant’s position, we would not penalize indigent defendants for offering the full amount of their available resources. And plaintiffs would be able to view settlement negotiations with an eye toward the financial capabilities of the defendant. Such plaintiffs may be loath to undertake the time, expense, and emotional drain of litigation if an impecunious defendant is all that awaits them at the end of their labors.

While the literal language of the Rule fails to specify that a defendant who makes a reasonable settlement offer must first possess the assets to satisfy the offer, logic and common sense supply that prerequisite. A result in which a defendant would be required to make an offer he could not possibly pay would neither promote the goal of Rule 238 nor generate respect for the judicial system. Once delay damages were assessed, how could they be collected? Punishing a person for failing to do that of which he is incapable portends an impossibility for that person and an unreasonable result, both of which violate Rule of Construction 128.

Rule of Construction 128 provides that “In ascertaining the intention of the Supreme Court in promulgation of a rule, the courts may be guided by the following presumptions among others: (a) That the Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable____” This provision permits a court to look beyond the language of a rule when a literal reading would produce an absurd, impossible, or unreasonable outcome. Commonwealth v. Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812, on remand, 26 Pa.Commw. 399, 365 A.2d 442 (1974). A reading of Rule 238 that would require an indigent defendant to offer what he does not have violates the presumption of Rule 128 against results that are impossible of execution.

This presumption against impossible results runs to other areas of the law. For example, Section 1106 of the Crimes Code permits the trial court to order a criminal defendant to pay restitution. See 18 Pa.C.S. § 1106. The statute fails to state that a defendant must be able to pay the amount imposed by the court, but that condition has been implied. In Commonwealth v. Fuqua, 267 Pa.Super. 504, 407 A.2d 24 (1979), our Court held that before a defendant may be ordered to pay restitution, the court must consider “the extent of the injury suffered, the fact that the defendant’s action caused the injury and that he will be able to pay for it, and the type of payment — lump sum or installment — that will best serve the needs of the victim and the capabilities of the defendant.” (Citations omitted.) Id., 267 Pa.Superi- or Ct. at 510, 407 A.2d at 27. Thus, despite the statute’s silence, the sentencing court must consider a defendant’s ability to pay before it demands restitution from him. See Commonwealth v. Mourar, 349 Pa.Super. -, 504 A.2d 197 (1986) and Commonwealth v. Gaskin, 325 Pa.Super. 349, 472 A.2d 1154 (1983).

Similar principles apply when a trier of fact is called upon to award punitive damages. The RESTATEMENT (SECOND) OF TORTS states that, “The wealth of a defendant is also relevant, since the purposes of exemplary damages are to punish for a past event and to prevent future offenses, and the degree of punishment or deterrence resulting from a judgment is to some extent in proportion to the means of the guilty person.” RESTATEMENT (SECOND) OF TORTS, § 908(e) (1979). Courts recognize that punitive damages, to effectively deter reprehensible conduct, must be tailored to an individual’s ability to pay. The California Court of Appeals has stated,

The purpose of punitive damages is to punish the defendant to make an example of him, and the wealthier the wrongdoing defendant, the larger the award of exemplary damages need be in order to accomplish the statutory objective, from which it also follows that the poorer the wrongdoing defendant the smaller the award of punitive damages need be.

Zhadan v. Downtown Los Angeles Motor Distributors, Inc., 100 Cal.App.3d 821, 161 Cal.Rptr. 225 (1980).

To avoid demanding the impossible, then, we must first discern a defendant’s ability to make an offer that would have been sufficient to stay the operation of Rule 238. Such a determination will not only yield more equitable results, it will also permit the application of Rule 238 under circumstances in which the Supreme Court intended it to apply: to a defendant with sufficient assets to offer a reasonable settlement figure, but who, for whatever reason, chose not to make such an offer. The true purpose of the Rule will then be executed. “It is fundamental that a rule of law should not be applied where its application fails to serve the purpose for which it was designed.” Commonwealth v. Beatty, 500 Pa. 284, 291, 455 A.2d 1194, 1198 (1983). We hold that a plaintiff shall not be awarded damages for delay pursuant to Pa.R.C.P. 238 after the date of the defendant’s offer when the court determines that, because of the defendant’s indigency, the offer was the full amount available for payment of the plaintiff’s claim and it was impossible for the defendant to have offered more.

Appellant also raises a constitutional argument, which we do not reach by virtue of our decision that Rule 238 does not apply to an indigent defendant under the facts presented to us. We therefore do not address the issue of Rule 238’s constitutionality.

Reversed and remanded for an evidentiary hearing. Jurisdiction is relinquished.

      . On December 6, 1983, appellant filed a petition for relief under Chapter 7 of the Bankruptcy Reform Act.


source: Caselaw Access Project

author: TAMILIA, Judge: BROSKY, Judge,

license: Public Domain

text:
    502 A.2d 1241
    COMMONWEALTH of Pennsylvania v. Victor BELMONTE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1984.
    Filed Nov. 8, 1985.
    Reargument Denied Jan. 13, 1986.

      Paul D. Boas, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   TAMILIA, Judge:

This is an appeal from the judgment of sentence entered on November 22, 1982. Appellant, Victor Belmonte, Jr., was convicted of four counts of third degree murder after á bizarre incident in which he ran amok and shot five of his neighbors from his father’s house in Coráopolis, Pennsylvania. Appellant raises several substantive and procedural issues, a number of which concern his defense of insanity. After conducting a thorough review of the record in which this Court has painstakingly considered all of appellant’s arguments, we affirm. While we basically agree with the conclusion of the lower court, the difficult issues in this case require us to expound on them.

The relevant facts are as follows. At the time of the incident in question, Victor Belmonte, Jr., the appellant, was 23 years old. He was a quiet and introverted young man who came from a closely knit family in Coraopolis. A somewhat unsuccessful stint in college coupled with being laid off from a job led the appellant to enlist in the United States Army. Having found his niche in life, appellant re-enlisted several times and was assigned to an intelligence gathering agency of the United States Army. Due to the nature of his work, which involved monitoring and intercepting Warsaw Pact Troop Transmissions, the appellant had the highest security clearance one can achieve in the military. His work also included weapons training and constant maneuvers wherein his unit would set up defensive positions in order to prepare for an enemy attack.

In March, 1979, the appellant was transferred to Pittsburgh, Pennsylvania, because his mother was dying of cancer, and remained in the military service for another year. Appellant’s mother died in the spring of 1980 and appellant, following his discharge, received a civilian job with the U.S. Army in the Pittsburgh area.

In July of 1980, prior to attending Army summer camp at Fort Indiantown Gap in central Pennsylvania, and following the death of his mother, appellant became increasingly withdrawn and reclusive, avoiding almost all social interactions. His condition deteriorated further and he became extremely uncomfortable with his stay at the camp. Appellant’s state of unrest culminated on the morning of July 20, 1980, when he left Fort Indiantown Gap and began walking toward Pittsburgh for ten hours. Eventually, appellant hitched a ride for'part of the journey and took a train the rest of the way. Upon arriving in downtown Pittsburgh, appellant decided to take a bus to Coraopolis. At the bus stop, appellant was greeted by an old friend, yet he failed to even acknowledge him.

When appellant arrived at his father’s home, he found the house empty. He proceeded to take a shower, drank a glass of milk, and then became frightened that people were closing in on him. Believing that some type of enemy attack was imminent, the appellant loaded several weapons, including a .35 caliber Marlin action rifle. He advanced to the third floor of the house from where he shot five of his neighbors on the street, killing four and wounding the fifth. Compounding the tragedy, most of the victims were people the appellant had known all of his life and with whom he was friendly.

Following the shooting, appellant ran down the stairs to the first floor, placing his weapons by the front door in an orderly manner. Appellant then left his home, took his automobile and drove around aimlessly for about an hour until he entered the Pennsylvania State Police Barracks in Carnegie at approximately 7:15 p.m. Elizabeth Blumer, the radio and desk operator at the State Police Barracks, was apparently the first person to encounter appellant after the killings. She testified he was not visibly shaken nor did he exhibit any nervousness when he appeared before her desk window. Appellant patiently waited when Blumer, who was taking a phone call, indicated that she would attend to him after she finished the call. Upon completion of the phone call, Blumer, joined by Cpl. John Kutchman, motioned to appellant to open the window and communicate his concern to them. Appellant then calmly stated, in a normal tone, of voice, that he had just shot four people. At this time, he made no reference to these people being the “enemy” nor did he use language couched in military terminology. In a peaceful fashion, appellant accompanied Cpl. Kutchman to a private room to talk further about the incident. Appellant was advised of his Miranda rights, which he waived after being fully informed and then proceeded to describe the incident exactly. In a calm manner and without hesitation, appellant stated that “[w]e met the enemy at our position in Coraopolis.” (N.T. 54). Appellant was then fingerprinted and turned over to the custody of Allegheny County Homicide Detectives, who informed him that he was being charged with four counts of criminal homicide and again advised him of his constitutional rights. At approximately 10:15 p.m., appellant gave the Allegheny County detectives a more detailed but essentially identical statement. Appellant indicated that he understood his rights and was at all times responsive to questioning.

Appellant filed an application to permit psychiatric and psychological examination by Dr. Thomas Eberle, Ph.D., on August 13, 1981, which was granted by the Honorable George H. Ross. A second application to permit psychiatric and psychological examination by Dr. Melvin Melnick, M.D., was filed on September 8, 1980, and granted on 'that same date by the Honorable Robert E. Dauer.

On December 30, 1980, after application and hearing, the Honorable John W. O’Brien ordered appellant committed to Farview State Hospital for 90 days, pursuant to section 403 of the Mental Health Procedures Act of 1976, as amended, 50 P.S. § 7402. At the same time Judge O’Brien denied appellant’s request for a determination of criminal responsibility pursuant to 50 P.S. § 7404(a), leaving that matter for determination at trial. Subsequently, appellant was found competent to stand trial and on August 17, 1981, Judge O’Brien considered and denied a motion to reconsider application for pre-trial acquittal by reason of insanity pursuant to 50 P.S. § 7404(a).

After a trial before Judge O’Brien and a jury, appellant was convicted of four counts of third degree murder and acquitted on the counts of attempt and aggravated assault. Post trial motions were timely filed, argued and in due-course denied. On November 22, 1982, appellant was sentenced to two consecutive terms of imprisonment of 10 to 20 years, to run concurrently with two additional 10 to 20 year terms. The instant appeal followed.

Appellant first contends that the Commonwealth failed to provide sufficient evidence that he was sane at the time he committed the murders. We disagree.

Appellant’s sole defense at trial was that he was legally insane when he committed the offenses charged. Appellant does not challenge the M’Naghten rule which is the prevailing standard for legal insanity in Pennsylvania. Under M’Naghten, an accused is legally insane if “at the time he committed the act, either he did not know the nature and quality of the act or he did not know that it was wrong.” Commonwealth v. Demmitt, 456 Pa. 475, 481, 321 A.2d 627, 631 (1974). In elaborating upon this test, our Supreme Court has noted that:

It is not intended to separate the emotionally disturbed defendants from the emotionally healthy. Rather, it is intended to include defendants, both disturbed and healthy, among those who are held criminally responsible ____

Id., 456 Pa. at 481, 321 A.2d at 631. Thus, the mere fact that an accused may have a history of mental illness does not mean that he is legally insane. Commonwealth v. Tempest, 496 Pa. 436, 437 A.2d 952 (1981); Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Pifer, 284 Pa.Super. 170, 425 A.2d 757 (1981). Even extreme mental illness does not compel a finding of not guilty by reason of insanity. Commonwealth v. Bruno, 466 Pa. 245, 252 n. 3, 352 A.2d 40, 44 n. 3 (1976). Rather, the accused is legally insane only if at the time of the crime he either did not appreciate the nature and quality of his act or did not know that it was wrong. Commonwealth v. Metzler, 499 Pa. 122, 451 A.2d 1352 (1982); Commonwealth v. Bruno, supra. “Conversely, in order for the Commonwealth to sustain their burden of proving appellant was sane, they must prove that appellant did know the nature and quality of his act and did know that it was wrong.” Commonwealth v. Pifer, 284 Pa.Super. at 176, 425 A.2d at 760.

In cases where there is sufficient evidence to raise the issue of insanity, such as here, the burden of proof is upon the prosecution to establish sanity beyond a reasonable doubt. Commonwealth v. Bruno, supra; Common wealth v. Tyler, supra; Commonwealth v. Delker, 467 Pa. 305, 356 A.2d 762 (1976); Commonwealth v. Thompson, 274 Pa.Super. 44, 417 A.2d 1243 (1979). We emphasize that this burden may be met by the testimony of lay witnesses. Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970).

The crux of the problem in the instant case is that the defense presented expert testimony of appellant’s insanity while the Commonwealth relied solely on the testimony of lay witnesses and the vigorous cross-examination of the appellant’s expert witnesses. However, as stated previously, the testimony of a lay witness may be sufficient to establish sanity, Commonwealth v. Zlatovich, supra, and the prosecution need not offer expert testimony in order to rebut expert testimony on behalf of the accused. Commonwealth v. Tyson, supra; Commonwealth v. Bruno, supra. “The only requirement is that there must be sufficient evidence from any source whatsoever to support a finding of sanity beyond a reasonable doubt. Common wealth v. Demmitt, supra.” Commonwealth v. Tyson, 485 Pa. at 352-3, 402 A.2d at 999.

In the instant case, the Commonwealth has presented such evidence of appellant’s sanity, despite the strong evidence that appellant is indeed mentally disturbed.

In Commonwealth v. Demmitt, supra, the defense offered the testimony of four psychiatrists, one of whom stated that the defendant was “ ‘completely disassociated, absolutely insane ____ he did not know the difference between right and wrong.’ ” Id. 456 Pa. at 477, 321 A.2d at 629. Like the present case, in Demmitt, the Commonwealth offered no professional psychiatric witnesses on the subject of appellant’s sanity and relied solely on lay testimony. Consequently, the Demmitt Court held that the Commonwealth had legitimately relied on the lay testimony “of witnesses concerning the defendant’s actions, conversations and statements at the time of the killing from which the jury could find that he knew what he was doing when he killed and knew it was wrong.” Id., 456 Pa. at 483, 321 A.2d at 632. See also Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981); Commonwealth v. Frisbie, 318 Pa.Super. 168, 464 A.2d 1283 (1983), rev’d on other grounds, 506 Pa. 461, 485 A.2d 1098 (1984).

The reasoning of Demmitt is directly applicable to the present case. While the appellant produced expert testimony from three psychiatrists who were all of the opinion that he was legally insane, such testimony was at times inconsistent and failed to explain certain instances of the appellant’s behavior. Therefore, we find that the jury was free to discount such testimony.

It is clear that the elements of a crime can be proven by circumstantial evidence, as provided by the Commonwealth’s witnesses in the present case. See Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983). Further, the jury was provided with the proper instruction regarding how the use of a deadly weapon upon the vital parts of another person’s body provides the necessary element of malice. Commonwealth v. Bishop, 489 Pa. 96, 413 A.2d 1031 (1980); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976).

In addition, we point out that our standard of review on appeal is limited. Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977). We reiterate that psychiatric testimony, like any other evidence, is for the trier of fact to consider in determining what weight it should be given. Commonwealth v. Whitfield, supra; Commonwealth v. Davis, 462 Pa. 27, 31, 336 A.2d 888, 890, cert. den. sub nom., Davis v. Pennsylvania, 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (1975); Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972). Our independent examination of the entire record leads us to conclude that the jury, sitting as trier of fact, had adequate evidence from which to conclude that the Commonwealth had borne its burden of proving Belmonte’s sanity under the M’Naghten test. We will not disturb this finding as such a course would constitute both a blatant abuse of discretion and an arrogant derogation of the function of the jury, which is the cornerstone of our legal system.

Appellant next contends that the trial court erred in permitting the prosecution to cross-examine the expert psychiatric witnesses concerning the possible length of appellant’s involuntary commitment in the event of his acquittal by reason of insanity. While we agree that certain portions of the prosecution’s questioning and comments appear suspect at first blush, when it is viewed in the context of the insanity defense, with a particular view to the evidence presented and the reasonable inferences drawn therefrom, it becomes clear that appellant suffered no prejudice. See Commonwealth v. Carey, 313 Pa.Super. 20, 31-32, 459 A.2d 389, 394-95 (1983). Since the insanity defense necessarily involves an in-depth exploration of the appellant’s mental condition, the prosecution’s assault on the defense experts was within the bounds of fair comment and we find no abuse of discretion. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1981). This is especially evident here, given the overwhelming technical language that permeated the expert testimony and the inability or reluctance of the expert witnesses to render a definitive opinion as to the length of commitment Belmonte would require or to predict his propensity for dangerous conduct. See Diamond, Psychiatric Prediction of Dangerousness, 123 U.PA.L.REV. 439 (1974).

Further, we note that appellant, during his direct examination of Dr. Eberle, opened the door to this line of questioning when the following exchange occurred:

Q.: Is it your belief that he [Belmonte] is currently in need of continued treatment or hospitalization?
A.: Absolutely.
Q.: Will this be for an extended period of time?
A.: It would be hard to say, but certainly my opinion is that Victor would require inpatient hospitalization for an extended indefinite period of time.

(N.T. 176).

The prosecution, confronted with the defense’s expert testimony that appellant was insane and would require lengthy treatment pursued a course of questioning that explored the inconsistencies in the opinions of the three psychiatrists concerning the length of time appellant would be committed. Viewed in this context, such a course of trial strategy was proper, and did not result in any prejudice to the appellant. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). Moreover, our review of the record discloses that whenever the questioning of the prosecutor began to approach sensitive areas, the trial judge assiduously sustained defense objections or limited the inquiry. Thus, we conclude that the prosecution’s conduct simply did not have the unavoidable effect of creating a fixed bias and hostility toward appellant in the minds of the jury.

Additionally, we point out that the jury was instructed properly regarding the possible psychiatric treatment and commitment of appellant as a consequence of returning a verdict of not guilty by reason of insanity. Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977). In Mulgrew, our Supreme Court held that a jury must be given an explanation of what would be the consequences of a verdict of not guilty by reason of insanity. The Mulgrew Court adopted as its rationale the language of Lyles v. United States, 254 F.2d 725, 728 (D.C.Cir.1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), cert. denied, 362 U.S. 943, 80 S.Ct. 809, 4 L.Ed.2d 771 (1960), cert. denied, 368 U.S. 992, 82 S.Ct. 610, 7 L.Ed.2d 529 (1962), which held:

The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty____ But a verdict of not guilty by reason of insanity has no such commonly understood meaning____ It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts. (Emphasis added)

Commonwealth v. Mulgrew, supra, 475 Pa. at 275-76, 380 A.2d at 351. See Commonwealth v. Miller, 290 Pa.Super. 553, 434 A.2d 1282 (1982) (applying Mulgrew). See also Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294 (1975) (quoted in Mulgrew).

The instruction advocated in Mulgrew is incorporated into the draft of the Pennsylvania Standard Jury Instructions on the Insanity Defense. Based on certain provisions of the Pennsylvania Mental Health Procedures Act, 50 Pa.S. § 7101 et seq., this instruction reads as follows:

(6) In determining questions of sanity and guilt you really should not concern yourself with what will happen to the defendant if you find him not guilty — whether he will be set free or whether he will be . confined to a mental hospital for treatment. You should apply the law that I give you to decide the case and assume that, whatever your verdict, the authorities will make a wise disposition of the defendant. I will tell you, however, that when a defendant is found not guilty as a result of insanity, he may be the subject of an immediate court proceeding to commit him to a mental treatment facility and, if committed, his commitment will continue until he is no longer dangerous to others or to himself.

Section 5.01A. Revised Instruction Subcommittee Draft, February 2, 1978. “The purpose of this instruction is not only to prevent possible unwarranted convictions but to alleviate any fears that the jury may have that a defendant may be turned loose.” Commonwealth v. Musolino, 320 Pa.Super. 425, 442, 467 A.2d 605, 614 (1983).

In the instant case, the lower court read the above Mulgrew instruction verbatim to the jury. (N.T. 500-01). We conclude that this instruction cured any misconception that arose from either counsel’s conduct during trial or closing arguments. Based on the above reasoning, we will not disturb the trial court’s determination as it is a far superior monitor of the propriety of the prosecutor’s remarks than this far removed appellate court. Commonwealth v. Williams, 295 Pa.Super. 369, 379, 441 A.2d 1277, 1282 (1982).

We expressly reject appellant’s assertion that Commonwealth v. McCann, 503 Pa. 190, 469 A.2d 126 (1983) sheds no light on the issue before us since it only dealt with a claim of ineffective assistance of counsel. In McCann, the reasonable basis for defense counsel’s decision not to request a Mulgrew charge, which his client was entitled to, was his apprehension that if he did so, the prosecutor would have been afforded an opportunity to argue to the jury that the procedures provided in the Mental Health Procedures Act would permit the defendant to be released within a relatively short period of time. McCann, supra, 503 Pa. at 198, 469 A.2d at 130. If such closing argument is permissible, then it follows by implication that the prosecutor should be able to lay the evidentiary foundation for it by the pertinent cross-examination of the appellant’s expert psychiatric witnesses. While the McCann Court stopped short of defining the extent of permissible argument by a prosecutor regarding the possible length of commitment, it commented favorably on the fact that other jurisdictions permit explanation of the relevant commitment procedures:

Since Mulgrew, supra, we have not expressly defined the extent to which a prosecutor may argue the possible length of commitment of a defendant found not guilty by reason of insanity. However, other jurisdictions which have addressed this problem have allowed [the] prosecutor to at least explain the procedures by which a defendant would be evaluated. See State v. Karstetter, 110 Ariz. 539, 521 P.2d 626 (1974); People v. Fox, 131 Ill.App.2d 604, 264 N.E.2d 502 (1970); People v. Blake, 58 Mich.App. 685, 228 N.W.2d 519 (1975); People v. Reade, 1 N.Y.2d 459, 154 N.Y.S.2d 27, 136 N.E.2d 497 (1956). See also, Commonwealth v. Killelea, 370 Mass. 638, 351 N.E.2d 509 (1976). Thus, it was reasonable for trial counsel in this case to conclude that the Commonwealth would have been entitled to at least an instruction on this issue, if not an opportunity to argue the point.

Id., 503 Pa. at 198 n. 5, 469 A.2d at 130 n. 5. We find this reasoning conclusive and hold that appellant’s assertion that the prosecution’s comments during its closing argument were improper is without merit as it constituted fair argument within the parameters of Mulgrew.

Appellant also contends that the prosecution’s cross-examination of Dr. Refus using the evaluation of Dr. Shoflin, a member of the treatment team at Fairview State Hospital, constitutes reversible error as it was hearsay and Dr. Refus was neither the writer nor custodian of the report. We disagree and note that an out-of-court statement offered for a purpose apart from the truth of its contents, or to explain a course of conduct is not hearsay. Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032, 1035 (1980); Commonwealth v. Tselepis, 198 Pa.Super. 449, 181 A.2d 710 (1962). Here, the clinical accuracy of Dr. Shoflin’s observations was not at issue; in fact, such a contention would be absurd since Dr. Refus stated that he fully agreed with Dr. Shoflin’s report. The prosecution, concerned only with the fact that the statements were made and that Dr. Shoflin agreed with them, pursued this line of inquiry only to demonstrate the inconsistency and malleability of the expert psychiatric testimony presented, and in no way violated those protections engendered in the hearsay rule. Cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Consequently, we conclude that the prosecution’s reference to Dr. Shoflin’s psychiatric evaluation and the use of this information as the basis for a hypothetical question did not result in any prejudice to appellant.

The next argument raised by appellant is that the lower court erred in allowing references to be made by the prosecution during cross-examination and in closing argument concerning the appellant’s failure to protest his arrest. At the outset, we note that it is reversible error to admit evidence of a defendant’s silence at the time of arrest. Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976). Further, the United States Supreme Court has held that testimony regarding an accused’s post-arrest silence is generally inadmissible; Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Here, however, appellant did not invoke his fifth amendment privilege to remain silent and a contextual reading of the prosecution’s questions and comments reveals no such violation. In fact, appellant made a knowing and informed waiver of his Miranda rights both at the state police barracks in Carnegie, Pennsylvania, and while in custody of the Allegheny County police. Further, all of the cases which appellant relies on can be distinguished as they involve situations where the accused has invoked his fifth amendment privilege. See, e.g., Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982); Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978). See also Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972).

In the instant case, the exchange alleged as error by the appellant was part .of the cross-examination of Dr. Melnick. (N.T. 401-06). However, we find that the challenged remarks, when viewed in the context of appellant’s insanity defense, did not constitute an error of constitutional magnitude. Moreover, appellant’s “lack of protest” during and following his arrest was explored by the Commonwealth not in terms of “silence”, but was directed at assaulting the credibility of appellant’s insanity defense (i.e., Was appellant’s conduct normal in light of the fact that he was arrested and charged with four counts of criminal homicide?). Cf. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985) (prosecution elicited testimony designed to rebut defendant’s allegation that he cooperated with the police, not to suggest his guilt to the jury). As such, we conclude that the prosecution’s references were within the ambit of fair argument. Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233 (1983).

In addition, appellate counsel, Paul D. Boas, Esquire, who also served as trial counsel, raises his own ineffectiveness concerning his failure to object to the prosecution’s reference to appellant’s “lack of protest” during his arrest. We would note that counsel did make this objection during cross-examination, and as we have already disposed of this issue on the merits, we need not address appellant’s alternative claim of ineffective assistance of counsel. We note that the instant case is totally inapposite from Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984), which held that where counsel argues his own ineffectiveness, unless reversible error is apparent from the record, the case must be remanded for the appointment of new, independent counsel. In Serianni, however, neither claim connected with counsel’s ineffectiveness was addressed on the merits by the lower court due to counsel’s failure to preserve them in post-verdict motions. Pa.R. Crim.P. 1123. Here, unlike the situation in Serianni, appellant’s claim of ineffective assistance of counsel is raised in the alternative. Since appellant has argued and briefed the issue pertaining to his “lack of protest” during arrest, and we have disposed of it on the merits, appellant’s alternative claim that counsel was ineffective for failing to object to the prosecution’s remarks in its closing argument is moot.

Appellant’s next argument is that the trial court erred in refusing to grant appellant’s request for a jury instruction on character evidence. We begin our analysis by noting that a defendant who produces character testimony of a good reputation in the community is entitled to a jury charge that character evidence alone may be sufficient to raise a reasonable doubt and, thus, justify an acquittal of the charges. Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981); Commonwealth v. Schultz, 335 Pa.Super. 306, 484 A.2d 146 (1984).

In the instant case, appellant contends that two of his witnesses, Sgt. Curtiss Tipton of the United States Army and Gary Pignale, a long time friend, who were called to testify regarding the substantive defense of insanity (i.e., their knowledge of appellant’s background), were also used as character witnesses. We disagree.

When counsel for appellant submitted his requested points for charge, a charge on character testimony was specifically requested (N.T. 479-81). The prosecution objected to such a charge, and the lower court agreed, stating that the witnesses were not asked about Belmonte’s “reputation.” We agree with the lower court’s determination for the following reasons.

Initially, we note the trial court held that a proper foundation for character evidence was not laid since the witnesses were not asked the proper qualifying questions. (Slip Op. at 8-10). We need not elaborate on this point since our review of the record leads us to conclude that the testimony now advanced as reputation evidence was not in fact, nor in effect, reputation evidence that required an expansive character charge. Rather, we find under the facts and circumstances of this case that such evidence was an integral part of a skillful, albeit unsuccessful, effort to establish appellant’s insanity. As such, it should not be viewed as providing the basis for a separate instruction on character evidence. The portions of Sgt. Tipton’s and Pignale’s testimony which appellant argues should be treated as character evidence fit into the gestalt of appellant’s defense scheme and cannot be isolated from either the totality of the above-mentioned witnesses’ testimony or the testimony of the expert witnesses appellant presented in support of his insanity defense. Viewed in this context, we conclude that the lower court’s refusal to charge the jury on character evidence was proper in light of the facts and evidence present in the instant case.

Our conclusion is buttressed by the fact that appellant, whose sole defense was insanity, admitted the fact that he committed the offenses charged. Therefore, the essence of appellant’s defense negates the need for character evidence since the premise underlying the admissibility of reputation evidence is that it tends to show the improbability of the accused’s doing the act charged. See Wigmore, Evidence § 56 (3d.Ed.1940). The cases which appellant cites for the proposition that failure to instruct the jury on character evidence alone results in reversible error all deal with situations where: (1) the appellant has testified; and (2) his credibility is at issue. Here, appellant relied solely on the defense of insanity. He chose not to testify and therefore he did not place his credibility into question. Moreover, appellant’s argument that the purported testimony is reputation evidence is belied by the remarks of defense counsel during his summation to the jury. During his closing, appellant’s counsel extensively reviewed the testimony of the defense experts, and integrated into that the testimony of the lay witnesses in order to summarize the development of appellant’s mental illness and its tragic manifestation in the resultant shootings. At no time did appellant’s counsel refer to the testimony of Tipton and Pignale for its worth as reputation evidence. Based on all of the above reasons, we conclude that the lower court acted properly in refusing to instruct the jury on character evidence.

Finally, appellant contends that the trial court, in charging the jury, committed reversible error by mistating the burden of proof on the critical element of insanity. The Opinion of the trial court noted that:

during its charge to the jury the words “or” and “incapable” were, in fact, used where the words “and” and “capable” appear in the transcript. This inference is drawn for these reasons: (1) the court’s charge was read directly from cards containing the correct words, which cards were prepared directly from Pa.SSJI (Crim.); (2) There are many other minor discrepancies between the court’s charge cards and the charge as transcribed; and (3) although both attorneys were listening closely enough to the charge to point out that the court had inadvertently used the phrase “guilty by reason of insanity” at one point in the charge (T.T. 508-09), neither attorney heard the court say “and” when “or” should have been used or “capable” when “incapable” should have been used, (footnote omitted)

Slip Op. at 19-20.

We agree with the reasoning of the lower court since the record in the instant case was repleat with transcriptional error. Here, our review of the record convinces us that the correct charge was given but merely was transcribed incorrectly.

In making this determination, we need not depend on facts outside the record and, therefore, the cases relied on by appellant for his proposition that the trial court committed reversible error can be distinguished from the situation before us. See, e.g., Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). In Young, defense counsel requested a proper instruction on reasonable doubt and objected to the trial court’s resulting charge, thereby directing the court’s attention to the defense’s rejected points for charge. Id., 456 Pa. at 108-09, 317 A.2d at 261. At best, the Young Court was confronted with much more than mere transcriptional error. Moreover, this Court has previously refused to apply the rule in Young in a mechanical fashion. See Commonwealth v. Boettcher, 313 Pa.Super. 194, 459 A.2d 806 (1983); Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983). Given the leeway provided for in the above-cited case law, the numerous other discrepancies between the standardized charge cards and the charge as transcribed, and the lack of objection from counsel who had previously objected during the same charge, we conclude that appellant’s claim should be dismissed. After carefully reviewing the entire record, including the disputed charge on the legal definition of insanity, as this Court is bound to do, see Commonwealth v. Jones, 300 Pa.Super. 338, 446 A.2d 644 (1982), we hold that the trial judge gave a proper and adequate charge regarding the Commonwealth’s burden to prove its case beyond a reasonable doubt.

Accordingly, the judgment of sentence is affirmed.

ROBERTS, J., concurs in the result.

BROSKY, J., dissents.

BROSKY, Judge,

dissenting:

I dissent. I would hold that there was an insufficiency of evidence with regard to appellant’s sanity.

The transcript of the trial has been reviewed in its entirety repeatedly over a protracted period of time. The same conclusion resulted on each reading: the jury could not have properly found that the appellant was sane at the time the . crimes in question were committed. Neither the evidence alone, nor that evidence together with the inferences which could reasonably be drawn from it, substantiate such a verdict.

The evidence has been accurately summarized by the majority. The testimony which it synopsizes presents a tragic event. The horror for the victims and their families and the grotesque depths of appellant’s delusion were painful to read and re-read.

This is not often true on an appellate court. The steady parade of human savagery which is presented to us has an inuring effect. Notwithstanding this, the case before us had a special impact.

This strong personal reaction to these events is, of course, quite irrelevant to the judicial function to be performed. It is due to the necessity to disregard this subjective response that the record was reviewed so often and at intervals. For the question is not what the appellate judge would have done had he been a juror in the case. Rather, the question is — with extreme deference to the fact finder— whether the verdict of the fact finder was supported by the evidence. Applying this standard most rigorously, I have come to my stated position.

In doing so, I have been mindful of the need to approach most circumspectly the fact finder’s conclusion. However, it is equally important to remember that a restricted scope of appellate review must never become synonymous with no review at all. The review function must be exercised to appellant’s benefit when the occasion requires it. Otherwise, we have issues and rights which exist in form but never in fact. This duty of active, actual review coexists in a state of functional tension with the duty to apply a restricted scope of review. Both are essential to the process.

In this type of case it is all too easy to understand how this error could come about. The jury is faced with a horrific and senseless act. They are mindful of stories in the media of persons found not guilty because they are insane'who are subsequently released from mental institutions and then commit another demented criminal act. They are reminded by the prosecutor’s questioning that no one can confidently predict when the appellant “is going to go boom and explode.” Little wonder that a jury may decide to “play it safe” and find one like the appellant guilty.

But, where a jury may derogate its legal duty by doing what it sees as its social duty, the appellate courts cannot so indulge themselves. Our stern duty must be met. Here that duty dictates, as I see it, that the evidence be found insufficient. While respecting those who have come to the opposite conclusion, for myself, I find any other conclusion inconceivable.

If any case ever detailed the actions of an insane mind, surely that case is before this Court today.

      . Appellant relies on In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), for the proposition that once the burden of persuasion regarding sanity shifts to the Commonwealth, the defendant's sanity thereby becomes an element of the crime which the Commonwealth must establish beyond a reasonable doubt. While it is generally applicable, appellant’s reliance on Winship is misplaced. As present Chief Justice Nix stated in his Concurring Opinion in Commonwealth v. Demmit, 456 Pa. 475, 483-5, 321 A.2d 627, 632-33 (1974):
      In my understanding, the majority’s use of the term "presumption of sanity” does not imply a shifting of either the burden of production or persuasion; rather it is merely an attempt to express the view that the Commonwealth’s burden in this regard can be satisfied from its proof of the events surrounding the commission of the crime and the accused’s apprehension.

        See also Commonwealth v. Vogel, 501 Pa. 314, 320-23, 461 A.2d 604, 607-08 (1983) (reaffirming view that sanity was not necessarily an element of the crime but may relate solely to whether the accused possessed sufficient awareness to be deemed criminally responsible). Subsequent to the trial of the instant case, the Pennsylvania Legislature enacted a new law establishing a verdict of guilty but mentally ill. While preserving the insanity defense, this law has shifted the burden to the defense to prove insanity by a preponderance of the evidence. Act of December 15, 1982, P.L. 1262, No. 286, § 1, 18 Pa.C.S.A. 314-15 (Supp.1983).

      . At trial, the appellant presented expert psychiatric testimony from Dr. Thomas M. Eberle, Dr. Melvin Melnick and Dr. Ronald T. Refus.

      . The lower court similarly stated its conclusion that ‘‘[w]hile this is not an overwhelming case of sanity, substantial evidence did exist from which the jury could conclude defendant was sane under M’Naghten at the time of the shootings.” (Slip Op. at 4)

      . This conclusion was also reached by the lower court, which in its Opinion stated:
      Testimony indicated defendant abandoned his weapons inside the house and then fled the scene in his car, after which he drove “aimlessly” for a period of time before deciding to report the shootings. Moreover, he did not go to the U.S. Army base at Oakdale, Pennsylvania, where he worked as a civilian (or any other military installation), to report an enemy attack. Rather, he walked into a police station and calmly announced he had just shot four “people.” During his first interrogation (at the State Police Barracks) defendant identified one of the victims as "Joe Olinger," and was able to spell his name. T.T., 53. During his second interview (at County Police headquarters) defendant initially denied knowing any of the victims’ names. T.T., 90-91. However, he later stated to Detective Lenz that the first person he shot was "Mr. Olinger he’s supposed to be.” T.T. 93. Finally, defendant never protested at being charged with and processed for criminal homicide, despite the fact that (according to the defense theory) the killings were done in the context of his psychotic delusion that he was repelling an enemy attack. All of these facts are inconsistent with the defense’s theory that defendant did not understand the nature and quality of his acts, or if he did, that he did not know they were wrong.
      (Slip Op. at 4-5)

      . Perhaps the most objectionable of the prosecution’s questions was, "How is anybody ever going to know the next time Victor Belmonte is going to go boom and explode?” (N.T. 244) An objection was entered by defense counsel and sustained by the trial judge.

      . For example, during the cross-examination of Dr. Eberle, defense counsel objected to or interrupted the prosecution on numerous occasions. (N.T. 202, 206, 210, 216, 219, 225-26, 231, 248) Consequently, the prosecution either adjusted its questioning to the satisfaction of the court and opposing counsel or the court ruled as demanded.

      . The record discloses that the nature of the testimony adduced at trial was so technical and equivocal that it provoked comment and attack by the prosecution. This Court has previously stated "that a prosecutor’s remarks fall within the ambit of fair comment if they tire supported by the evidence and provided that they contain inferences which are reasonably derived from the evidence.” Commonwealth v. Barren, 501 Pa. 493, 498, 462 A.2d 233, 235 (1983). See also Commonwealth v. Nutter, 256 Pa.Super. 111, 389 A.2d 626 (1978). A review of the appellate decisions of this Commonwealth which have held that the prosecution has transgressed the bounds of propriety demonstrates that the conduct of the prosecutor in the present case fell within those boundaries. See, e.g., Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Long, 258 Pa.Super. 312, 392 A.2d 810 (1978).

      . The Commonwealth maintains that because defense counsel failed to object to the absence of an instruction on character evidence at the close of the trial court’s charge, this claim is waived under Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983) (requiring a specific objection after the charge is read to the jury in order to preserve an issue, even where the jury instructions have been timely offered and refused). See also Commonwealth v. Russell, 326 Pa.Super. 346, 473 A.2d 1383 (1984) (citing Rineer). We reject the Commonwealth’s waiver argument because at the time of appellant's trial, the law was unsettled regarding whether Pa.R.Crim.P. 1119(b) required an objection both at the time a requested point for charge is denied and after the ultimate charge is read to the jury. Rineer, supra, 310 Pa.Super. at 248-49, 456 A.2d at 594-95. Since appellant was tried prior to Rineer’s pronouncement that an objection must be made after the charge is read to the jury, we hold that it would be unfair to find this claim to have been waived, especially in light of the conflicting case law which existed at the time of the alleged error.

      . The Commonwealth contends that this claim has been waived since defense counsel failed to specifically object to the court’s charge on the legal definition of insanity. We decline to find waiver here for the same reasons stated in note 8.

      . It is well settled that the courts have the power to correct clerical errors in the record. Commonwealth v. Claudy, 378 Pa. 429, 106 A.2d 401 (1954); Commonwealth v. McDonald, 285 Pa.Super. 534, 428 A.2d 174 (1981).

      . We note that Pa.R.A.P. 1922 and 1926 provide a procedure for the correction or modification of the record. However, neither section provides a penalty for failure to comply with the provisions therein. Further, those appellate decisions which have reversed the lower court for violations of the procedural rules have presented factual situations inapposite from the instant case. See, e.g., Commonwealth v. Brown, 496 Pa. 86, 436 A.2d 165 (1981); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). Therefore, we conclude that the trial court’s failure to technically comply with the procedural rules is not fatal to its subsequent finding that no error occurred.

      . The dissent does not point to any specific factual inadequacies or legal infirmities for its conclusion that the evidence, as to defendant’s insanity, was insufficient, but simply attempts to substitute his subjective view of how the evidence should have been received by the jury. Admittedly, the crimes in this case are horrendous and overwhelming, but the carefully tried case and well reasoned charge to the jury, governed by applicable law, assures that the jury could properly distinguish between emotionalism and its fact finding duty. It is just this emotionalism, which causes juries to acquit rather than convict when the facts and law would dictate otherwise, that resulted in the legislature enacting the Guilty But Mentally 111 provision to the Crimes Code, 18 Pa.C.S.A. § 314 and Sentencing Code, 42 Pa.C.S.A. § 9727 (not applicable here), relieving the jury of the unpalatable choice. We may not usurp the function of the jury under these circumstances and must affirm. To do otherwise, would be to turn the concept of appellate review into an exercise in sociological revisionism, in which we substitute our distaste for the rigidity of the M’Naghten rule, for the law and do precisely that which we would condemn if done by the trial court.
      As our Opinion illustrates and documents, we have reviewed this record minutely and exhaustively; we have researched the law in every direction the appellant would lead us. Our conclusion, even if painful, is inescapable. We do not subscribe to the inherent bias in judges (including appellate judges) and incapacity to decide hard cases inferred by the dissent in his footnote 1.

      . Of course, in no way do I mean to imply that my brother judges on this panel have not also subjected this case to the most careful scrutiny. Indeed, I am confident that quite the opposite is true. I am merely pointing out that an issue type which is frequently a losing one for appellants due to its restricted scope of review, can acquire in a judge’s mind an almost irrebuttable presumption of failure. This is an occupational hazard which, I think, all judges should, and most judges do, acknowledge.


author: MONTEMURO, Judge:

text:
    502 A.2d 1254
    INDUSTRIAL VALLEY BANK AND TRUST CO., v. Livingston NASH, and Hyalene Nash. Appeal of Livingston NASH.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Dec. 20, 1985.

      Irv Ackelsberg, Philadelphia, for appellant.
    Ivan Wille, Philadelphia, for appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   MONTEMURO, Judge:

This is an appeal taken from an order of the Court of Common Pleas of Philadelphia County, denying defendant’s-appellant’s (Livingston Nash) motion for summary judgment on his counterclaim and granting summary judgment in favor of the plaintiff-appellee, Industrial Valley Bank and Trust Company.

The facts are as follows: In 1978, Livingston and Hyalene Nash decided to trade in their 1975 Ford automobile for another car. Oak Lane Ford, Inc., apparently had the car they were looking for and on November 29, 1978, they purchased a used 1976 Chevrolet four door Caprice for the price of $4192.70. At the same time, the Nashes executed a motor-vehicle installment sale contract in the total sum of $5575.32. The difference in the cash sale price and the installment contract price is represented by the net trade-in allowance on the Nashes’ Ford; the down payment of $604.98; property damage insurance and life, accident and health insurance totaling $691.34; a one year extended service plan cost of $200.00 and finally the finance charge of $1184.98. The Nashes agreed to make 36 successive monthly payments of $154.87 each. The installment sale contract contained the Nashes’ authorization to have judgment confessed against them in favor of the seller, Oak Lane Ford, Inc. or its assignors, in the event of their default under the terms of the contract. The installment sale contract was subsequently assigned to the plaintiff-appellee, Industrial Valley Bank and Trust Company.

The Nashes defaulted after having paid nineteen (19) installments for a total of $2942.53, or slightly in excess of 52% of the amount they owed. On January 19, 1979, plaintiff-appellee by confession of judgment on the installment sale contract entered judgment against defendant-appellant in the sum of $5575.72.

On October 17, 1980, plaintiff-appellee gave the defendant-appellant written notice concerning the repossession and future resale of the financed automobile. The vehicle was actually repossessed in October of 1980 and was subsequently sold at a public auction in December of 1980 for the price of $918.20. Because the notice which was sent to the defendant-appellant is critical to the disposition of this appeal, we shall set it forth in its entirety. The notice read:

10/17/80
Mr Livingston Nash
Mrs Hyalene Nash
5036 Wade St.
Phila. PA 19144
Re: 1-920-0831
Dear Mr and Mrs Nash,
You are hereby notified that the following described motor vehicle: 1976 Chevrolet,' Serial # IN39V61156107 sold to you under Motor Vehicle Installment Sale dated, November 29, 1978, has been repossessed by or for us in exercise of our rights as holder of the said contract; and is now stored at Philadelphia County.
Unless you reclaim or redeem the vehicle by payment of the redemption price stated below before November 3, 1980 * * we will have it sold or contract to sell it. An itemized statement of the total amount required to redeem the vehicle by payment of the contract in full, is as follows:
Unpaid Balance $2,632.79
Interest Rebate 149.97
Late Charges 7.05
Misc. Charges* 12.00
Repossession Expenses 100.00
Amount required to redeem $2,589.87
Any personal belongings in vehicle must be claimed before sale of vehicle, or they will be donated to Goodwill or a similar charity.
Payment of the amount required and any notices which you desire to serve upon us should be sent to the Industrial Valley Bank and Trust Company, 412 Old York Road, Jenkintown, Pennsylvania, 19046, marked to the attention of the undersigned.
Very truly yours,
W.J. Gillespie
Collection Supervisor
* plus $2.00 per day storage fee

On January 6, 1983, plaintiff-appellee filed an action in assumpsit alleging therein that following frequent demands, the defendant-appellant refused to pay all or any portion of the judgment which had been entered against defendant-appellant on January 19, 1979.

Defendant-appellant filed an answer together with new matter and a counterclaim. In the counterclaim, defendant-appellant sought to recover the statutory penalty imposed by the Uniform Commercial Code for alleged irregularities in plaintiff s-appellee’s repossession and resale of defendanfs-appellanf s automobile. Article 9, Uniform Commercial Code-Secured Transactions, Act of November 1, 1979, P.L. 255, No. 86, § 1, effective January 1, 1980, 13 Pa.C.S. § 9507(a) [hereinafter the U.C.C.].

On April 2, 1983, plaintiff-appellee filed its reply to defendant’s-appellant’s new matter and counterclaim and asked the court to enter judgment in its favor in the amount of $1814.63.

Prior to a scheduled arbitration hearing, plaintiff-appellee voluntarily discontinued its suit. Thereafter, the case proceeded solely on defendant’s-appellant’s counterclaim. On September 22, 1983, the arbitration panel entered an award in favor of defendant-appellant in the amount of $1624.01. From the award of arbitration, the plaintiff-appellee (I.V.B) appealed to the Court of Common Pleas.

Relying on the pleadings, defendant’s-appellant’s request for admission, and counsel’s affidavit, defendant-appellant then moved, pursuant to Pa.R.C.P. 1035, for summary judgment on the counterclaim. Defendant-appellant also asserted that there existed no genuine issues as to any material facts.

The court below denied defendant’s-appellant’s motion for summary judgment on December 14, 1984 and granted summary judgment in favor of plaintiff-appellee. The court held that the provisions of the Motor Vehicle Sales Finance Act, Act of June 28, 1947, P.L. 1110, §§ 1-37, 69 P.S. §§ 601-637, [hereinafter MVSFA], and not the provisions of the U.C.C., were applicable and, since plaintiff-appellee had complied with those provisions, it was entitled to summary judgment. This appeal followed.

For the reasons which follow, we disagree with both the reasoning and finding of the court below and therefore reverse.

For the sake of brevity, as well as clarity, the defendant-appellant Mr. Nash will be referred to hereafter as appellant and the plaintiff-appellee (Industrial Valley Bank and Trust Company) will be referred to as appellee.

Appellant’s argument on appeal is that a secured creditor which repossesses a motor vehicle and sells it at public auction, as was done here, must adhere to the notice provisions of the U.C.C., 13 Pa.C.S. § 9504(c), which require that the debtor be provided with notice of the “time and place” of the sale. Appellant argues further that if such notice is not given, then the debtor is entitled to the statutory penalty provided for in § 9507(a) of the U.C.C.

Appellee’s argument is that since there is a conflict between the notice provisions of the U.C.C. § 9504(c) and the MVSFA § 623 D, the provisions of U.C.C. § 9203(d) compel the application of the notice provisions of § 623 D. Appellee would have us hold that there is a conflict between the two statutes because (1) § 623 D of the MVSFA does not require notice to the debtor of the “time and place” of public sale of the repossessed motor vehicle while § 9504(c) of the U.C.C. does, and (2) since the appellant did not redeem the motor vehicle within the fifteen (15) day notice of redemption provision of MVSFA § 626 A, he forfeited all rights in the vehicle, and therefore to require appellee to give notice of the “time and place” of a public sale in accordance with the provisions of § 9504(c) of the U.C.C. would clearly conflict with MVSFA § 626 A.

The notice provisions of the two statutes are as follows. 13 Pa.C.S. § 9504(c) of the U.C.C. provides:

Manner of disposition. — Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods, no other notification need be sent. In other cases notification shall be sent to any other secured party from whom the secured party has received (before sending his notification to the debtor or before renunciation by the debtor of his rights) written notice of a claim of an interest in the collateral. The secured party may buy at any public sale and if the collateral is a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale. (Emphasis supplied).

On the other hand, 69 P.S. § 623 D of the MVSFA provides:

When repossession of a motor vehicle, which is the subject of an installment sale contract, is effected otherwise than by legal process, the holder shall immediately furnish the buyer with a written “notice of repossession” delivered in person, or sent by registered or certified mail directed to the last known address of the buyer. Such notice shall set forth the buyer’s right as to reinstatement of the contract, if the holder extends the privilege of reinstatement and redemption of the motor vehicle, shall contain an itemized statement of the total amount required to redeem the motor vehicle by reinstatement or payment of the contract in full, shall give notice to the buyer of the holder’s intent to re-sell the motor vehicle at the expiration of fifteen (15) days from the date of mailing such notice, shall disclose the place at which the motor vehicle is stored, and shall designate the name and address of the person to whom the buyer shall make payment, or upon whom he may serve notice. (Emphasis supplied).

■ It cannot be disputed that the notice given to appellant did not set forth the “time and place” of the public sale as required by the U.C.C. § 9504(c). On the other hand, it is also beyond dispute that the contents of the notice sent to appellant on October 17, 1980 {supra pages 3-4) were in substantial compliance with the ’provisions of the MVSFA § 623 D.

Thus, the issue before us for resolution is whether the notice requirements and procedures in the foreclosure of a security interest in a motor vehicle are governed by the U.C.C. or the MVSFA or by both.

The court below predicated its holding that summary judgment in this case had to be entered in favor of the appellee on the language contained in the U.C.C., 13 Pa.C.S. § 9203(d):

Applicability of other statutes. — A transaction, although subject to this division, is also subject to ... the ‘Motor Vehicle Sales Finance Act’ ... insofar as [that] statute by its terms applies to the transaction, and in the case of conflict between the provisions of this division and [that] statute, the provisions of [that] statute control. Failure to comply with any applicable statute has only the effect which is specified therein. (Emphasis supplied).

Without further analysis of § 9203(d), especially with reference to appellee’s arguments concerning the existence of a conflict between the notice provision of the U.C.C. and the MVSFA, the court below went on to say that “Pennsylvania Courts have held that the procedure for the foreclosure of a security interest in a motor vehicle is governed by the Motor Vehicle Sales Finance Act and not by Article 9 of the Uniform Commercial Code” (Slip Op. at 3). In support of this legal proposition, the court cited Industrial Valley Bank and Trust Co. v. Shenker, 74 D. & C.2d 268 (1975). For the reasons which follow, the reliance of the court below on Shenker was misplaced.

In Shenker, the defendants defaulted on an automobile loan and the plaintiff bank subsequently repossessed the vehicle. On the same day the bank advised the defendants by certified mail of the repossession pursuant to the provisions of the MVSFA, 69 P.S. § 623 D. The defendants failed to take appropriate action within the specified fifteen (15) day period and the car was sold. The court, in denying defendants’ motion for partial summary judgment against the bank’s claim for deficiency, held that the bank was only required to give defendants notice after repossession in accordance with the provisions of 69 P.S. § 623 D. The Shenker court, relying on the “applicability of other statutes” section of the U.C.C., 12A P.S. § 9-203(2), as amended 13 Pa.C.S. § 9203(d), opined that the defendant’s assertion that the U.C.C. requirements were applicable was “wholly untenable.” The court in Shenker never said why the defendants’ position was “wholly untenable” and it failed, as did the court below in this case, to offer any analysis whatsoever of the applicable statutes and, more particularly, whether there was in fact a conflict between them.

The court in Shenker, just as the appellee herein, also relied on § 626 A of the MVSFA, which reads:

When the repossessed motor vehicle under an installment sale contract is not redeemed by the buyer either by termination or reinstatement of the contract within the fifteen (15) days notice of redemption period, the buyer shall forfeit all claim to such motor vehicle and collateral security.

The Shenker court went on to say:

Therefore, it would suffice to say that defendants forfeited all claim to the automobile by not taking appropriate action within the allotted 15-day period. Having no interest in said vehicle, there would be no reason to notify defendant of the private sale consummated some five months subsequent to the repossession: Whiteman v. Degnan Chevrolet, Inc., 217 Pa.Superior Ct. 424, 428, 272 A.2d 244 (1970).

74 D. & C.2d, at 271-72. Appellee, as we have said, asks us to adopt this analysis as our own and find a conflict between the .two statutes; however, the law in Whiteman cited as support by the trial court in Shenker was exactly the opposite. The Honorable J. Sydney Hoffman authored the opinion of this court in Whiteman, and because we find his reasoning therein to be persuasive in our analysis of this appeal, we shall discuss it at length.

The facts in Whiteman were set forth by Judge Hoffman as follows:

In October of 1965, Wallace G. Krawczyk, now adjudicated an incompetent (appellant), purchased a new Chevrolet automobile from Degnan Chevrolet, Inc. (appellee), for § 3,555.00. Appellant traded in two used motor vehicles at the time of purchase. A conditional sale contract was executed which, after deducting the trade-in allowance, had a balance of $1,172.00. Appellee assigned the conditional sale contract to Central Penn National Bank of Philadelphia (Central Penn). A total of $612.00 was paid to Central Penn to be applied under the terms of the conditional sale contract, thus reducing the balance of $560.00.
Appellant subsequently defaulted on the conditional sale contract; therefore Central Penn repossessed the Chevrolet. Central Penn later reassigned the contract to appellee; and, in consideration of the balance due of $560.00 plus a repossession charge of $30.00, delivered the automobile to appellee.
Thereafter, appellee resold the car for $2,079.00, thereby creating an overage of $1,489.00. Appellant’s guardian demanded the return of this surplus; appellee refused, and this suit resulted. Appellee filed preliminary objections in the nature of a demurrer to appellant’s complaint on the ground that the complaint failed to set forth a cause of action upon which relief may be granted. The court below sustained appellee’s preliminary objections.

Whiteman v. Degnan Chevrolet, Inc., supra, 217 Pa.Superior Ct. at 426, 272 A.2d at 244-45.

From that decision, appellant appealed. The question presented was whether appellee was entitled to keep the surplus derived from the sale of the automobile.

As in the case before us, the same two Pennsylvania statutes were applicable, i.e., the U.C.C. as adopted in Pennsylvania and the MVSFA. The Whiteman court first set forth the relevant provisions of section 9504 of the U.C.C., namely section 9504(a) which reads:

A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing____

and section 9504(b) which reads:

If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus ____

The Whiteman court concluded that since the conditional sale contract signed by appellant created a security interest which secured payment of the indebtedness on the car, § 9504(b) required that appellee return any surplus to appellant. Whiteman v. Degnan Chevrolet, Inc., supra.

Just as in the case before us, appellee had argued that the U.C.C. did not apply because § 9504 of the U.C.C. was in conflict with the MVSFA. Again, just as in the case before us, appellee relied on section 9203(d) of the U.C.C., “applicability of other statutes”, for support of its argument that the MVSFA controlled, i.e., that since conflict existed between section 9504 of the U.C.C. and section 626 A of the MVSFA, section 9203(d) of the U.C.C. mandated that the MVSFA be the controlling statute.

The Whiteman court dismissed appellee’s argument with the following analysis:

The provisions of the Motor Vehicle Sales Finance Act, however, are not in conflict with the portion of § 9-504 quoted above. The Motor Vehicle Sales Finance Act sets forth certain rights and obligations of the parties in the event of a default. The Act states that ‘[wjhen the repossessed motor vehicle under an installment sale contract is not redeemed by the buyer either by termination or reinstatement of the contract within the fifteen (15) day notice of redemption period, the buyer shall forfeit all claim to such motor vehicle and collateral security.’ Act of June 28, 1947, P.L. 1110, § 26, 69 P.S. § 626 A.
Accordingly it is clear that if appellant were claiming any interest in the automobile, he could not prevail because the above-quoted section specifically provides for the forfeiture of all rights to the motor vehicle itself. But ‘motor vehicle’ is specifically and carefully defined in the Motor Vehicle Sales Finance Act, as is ‘collateral security.’ What is at issue is not possession of the Chevrolet itself. Here the parties are contesting the right to the surplus resulting from the sale of the automobile. An examination of these definitions reveals that neither specifically encompasses proceeds from the sale of the chattel which is the subject of the security agreement.
The relevant situation for which the Motor Vehicle Sales Finance Act directly provides is that in which the amount collected on resale of the secured chattel is less than the amount of the debt. Where such a deficiency exists, the Motor Vehicle Sales Finance Act sets out a detailed collection procedure. But this procedure only permits the seller to receive his bona fide expenses in a deficiency situation, and insures this result by creating safeguards to stop a seller from making a profit. It is thus not applicable to the instant case where appellee not only recovered the amount of the debt, but also recovered a large surplus.

Whiteman v. Degnan Chevrolet, Inc., supra, 217 Pa.Superior Ct. at 427-30, 272 A.2d at 245-46. (Footnotes omitted, emphasis in original).

That analysis is controlling and dispositive of appellee’s argument regarding § 626 A of the MVSFA in the case sub judice. Appellant here is not claiming any interest in his automobile; instead, he seeks statutory damages for appellee’s alleged non-compliance with the notice provisions of U.C.C. § 9504(c). Accordingly, we find no merit whatsoever in appellee’s § 626 A argument.

Appellee would also have us find a conflict between the notice provisions of U.C.C. 9504(c), which requires notice of the “time and place” of public sale, and the notice provisions of § 623 D of the MVSFA. We find no merit to this argument and agree with appellant that there is no conflict.

Preliminarily, and all questions of conflict aside, we note that under the section “Additional Provisions” of the motor vehicle installment sale contract used in this case, which was attached to appellee’s complaint and prepared by appellee’s assignor, paragraphs 5 and 6 read as follows:

5. Buyer may redeem the Car following repossession for default at any time for a period of at least 15 days after Seller mails a lawful notice of repossession thereof to Buyer, and at any time thereafter before Seller has disposed, or contracted to dispose, of the Car. The redemption price shall be the then unpaid Balance hereof, plus any accrued default charges and other amounts lawfully due hereunder, and if default at the time of repossession exceeded 15 days, Buyer shall also pay the expenses of retaking, repairing and storing authorized by law.
6. If the Car is consumer goods as defined in the Pennsylvania Uniform Commercial Code, and if Buyer has prior to repossession for default paid 60% of the Cash Price thereof, Seller shall sell the Car at public or private sale after the expiration of the aforesaid 15 day redemption period and not later than 90 days from the date of repossession. If the Car is not consumer goods as so defined, or if it is but Buyer has not paid 60% of the Cash Price thereof, Seller may at its option, following repossession, (a) sell or otherwise dispose of the Car at public or private sale, or (b) propose to retain the Car in satisfaction of Buyer’s obligation hereunder by giving Buyer written notice of such proposal, and if Buyer objects to such proposal within 30 days of receipt of notice thereof, Seller shall sell or otherwise dispose of the Car at public or private sale. In the event of any public or private sale of the Car, Seller shall give Buyer reasonable notice of the time and place thereof. Seller shall apply the proceeds of any such sale or other disposition to defray the reasonable expenses of sale, the lawful expenses of retaking and storing the Car, and the then unpaid Balance plus any then lawfully accrued default charges. After any such application of the proceeds, Buyer shall be entitled to any surplus but Buyer shall be liable for any deficiency. (Emphasis added).

The language of paragraph 5 is clearly taken from § 623 D of the MVSFA. However, paragraph 6 speaks in terms of the Pennsylvania Uniform Commercial Code and the seller, appellee’s assignor, agreed that “In the event of any public or private sale of the car, Seller shall give Buyer reasonable notice of the time and place thereof.” (Emphasis supplied). In our view, the Seller recognized the applicability of both statutes by the contract language above mentioned and, in compliance with those contract terms, the appellant was entitled to notice of the time and place of the public auction.

Nevertheless, even if there were no such language in the contract, or if the contract language was not applicable to the facts of this case, we still find that there is no conflict between the two statutes.

Just as in Whiteman, where the MVSFA is silent with, respect to a surplus following the sale of a repossessed motor vehicle, the MVSFA is also silent with reference to any procedures governing the disposition of the repossessed motor vehicle. Section 623 D merely requires the seller, or any holder who has lawfully acquired such motor vehicle installment sale contract, to give the buyer notice of intent to sell the motor vehicle at the expiration of fifteen (15) days following the mailing of the notice, and section 626 B states nothing more than disposition may be made by public or private sale. Appellee states that this silence is the kind of conflict which triggers the “applicability of other statutes” section of the U.C.C., § 9203(d). We do not agree.

In enacting the MVSFA, the Pennsylvania legislature determined and declared as a matter of legislative finding:

(a) That an exhaustive study by the Joint State Government Commission discloses nefarious, unscrupulous and improper practices in the financing of the sale of motor vehicles in this Commonwealth which are unjustifiably detrimental to the consumer and inimical to the public welfare. Such practices prevail not only among some sellers, but also among some sales finance companies and some banks, which acquire contracts arising out of installment sales of motor vehicles, and which frequently influence the credit policies of sellers.
(b) That the agreement for the installment sale of motor vehicles in this Commonwealth has been generally cast in the form of the so-called ‘Pennsylvania Bailment Lease’ contract, in which the seller is technically the lessor, and the buyer is technically the lessee. By the use of this fictional instrument in the installment sale of motor vehicles, the extension of credit to the purchaser has been so inextricably entwined with the alleged bailment of the motor vehicle as to deprive the consumer of the benefit of existing laws.
(c) That consumers, because of these legal technicalities and because of their unequal bargaining position, are at the mercy of unscrupulous persons and are being intolerably exploited in the installment purchase of motor vehicles. Such exploitation is evident in the unfair provisions of the installment sale contract, exorbitant charges for credit, extortionate default, extension, collection, repossession and other charges, unconscionable practices respecting execution of contracts, refinancing of contracts, prepayment, refunds, insurance, repossession and redemption.
(d) That practices enumerated, and others equally pernicious, have existed to such an extent that regulation of the installment selling of motor vehicles is necessary to the adequate protection of the public interest. Adequate regulation of installment selling must include control of the functions of selling and financing of motor vehicles, whether exercised by the same or by different persons.
Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to promote the welfare of its inhabitants and to protect its citizens from abuses presently existing in the installment sale of motor vehicles, and to that end exercise the police power of the Commonwealth to bring under the supervision of the Commonwealth all persons engaged in the business of extending consumer credit in conjunction with the installment sale of motor vehicles; to establish a system of regulation for the purpose of insuring honest and efficient consumer credit service for installment purchases of motor vehicles; and to provide the administrative machinery necessary for effective enforcement. 69 P.S. § 602.

We are convinced, as was the court in Whiteman, that the MVSFA “was not intended to create a comprehensive system of regulation for the motor vehicle sale industry.” Whiteman v. Degnan Chevrolet, Inc., supra, 217 Pa.Superior Ct. at 430, 272 A.2d at 246. The Act was passed instead to correct the abuses as set forth above in the “Findings and declarations of policy” section of the Act and those findings and declarations must be given weighty consideration when the Act is being interpreted.

The U.C.C. on the other hand, adopted by the legislature in 1953, did provide for some regulatory control over the disposition of repossessed collateral which of course includes motor vehicles. Section 9504 requires that “every aspect of the disposition including the method, time, place, and terms must be commercially reasonable.” 13 Pa.C.S. § 9504(c). (Emphasis added). Further, the secured creditor must give the debtor “reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made____” Id. (Emphasis added). Both our supreme court and this court have held that the U.C.C. provision of “commercially reasonable” governs the disposition of repossessed vehicles. Savoy v. Beneficial Consumer Discount Co., 503 Pa. 74, 468 A.2d 465 (1983); Fidelity Consumer Discount Company v. Clark, 333 Pa.Super. 306, 482 A.2d 580 (1984); Delahanty v. First Penn-, sylvania Bank, 318 Pa.Super. 90, 464 A.2d 1243 (1983); Alliance Discount Corp. v. Shaw, 195 Pa.Super. 601, 171 A.2d 548 (1961).

The reason for the section 9504 notice should be apparent. By notifying the debtor of the time and place of public sale, the debtor is given the opportunity to take whatever steps are necessary to protect his interest by taking part in the sale if he so desires. See 13 Pa.C.S. § 9504 (Official 1972 Comment, paragraph 5). Professors James J. White and Robert S. Summers say that “the notice requirement is easy to understand and apply; it is inspired by the forlorn hope that the debtor if he is notified, will either acquire enough money to redeem the collateral or send his friend to bid for it.” J.J. White and R.S. Summers, UNIFORM COMMERCIAL CODE, Section 26-9 (Second Edition, 1980) (Footnote omitted).

Appellee seems to be arguing that a conflict exists between the MVSFA and the U.C.C. for the reason that while the U.C.C. requires the secured creditor to give the debtor reasonable notice of the time and place of the public sale, the MVSFA has no such requirement; indeed, as we have seen, such a sale absent notice would not be commercially reasonable under the U.C.C. 13 Pa.C.S. § 9504(c); Fidelity Consumer Discount Co. v. Clark, supra. (Where the court, although finding that the sale was private and not public, remanded to the lower court for an evidentiary hearing to determine whether the secured creditor had met its burden of proof to show that, under the totality of the circumstances, disposition of the collateral was commercially reasonable).

However, we are convinced that the rules of statutory construction compel a result different from that which appellee suggests.

The Pennsylvania Statutory Construction Act is relevant in the interpretation of both statutes. It provides in pertinent part that:

(a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same classes of persons or things.
(b) Statutes in pari materia shall be construed together, if possible, as one statute.

1 Pa.C.S. § 1932.

On the question of the kind of notice to be given to the debtor by the secured creditor, the MVSFA and the U.C.C. are clearly in pari materia since they relate to the identical thing — the sale of a repossessed motor vehicle. As we pursue the possibility of construing them as one law, again the Statutory Construction Act offers a solution. Section 1933 states that a particular or special provision controls a general provision in the same or another statute. See, 1 Pa.C.S. § 1933. Section 9504(c) of the U.C.C. not only requires the sale of repossessed motor vehicles to be commercially reasonable as to method, manner, time, place and terms, it also requires reasonable notice of the time and place of any public sale; on the other hand, section 623 D of the MVSFA merely requires the secured creditor to give the debtor notice of its intent to sell the repossessed vehicle at the expiration of fifteen (15) days from the date of the mailing of the notice of repossession and section 626 B provides that the secured creditor has the right to bring an action against the debtor for any deficiency “unless there shall have been a public or private sale of the repossessed motor vehicle____” We therefore hold that the particular provision in the U.C.C. relating to reasonable notice of the time and place of any public sale controls and interprets the silence of the MVSFA on that matter. See Borough of Millersville v. Township of Lancaster, 2 Pa.Commw. 587, 279 A.2d 349 (1971), aff'd., 447 Pa. 310, 290 A.2d 102 (1972).

In Whiteman, the issue was whether the appellee had to return the surplus to appellant. The U.C.C. required such return and the MVSFA was silent. The Whiteman court held that the U.C.C. must prevail. Here, the U.C.C. requires that the debtor be given notice of the time and place of public sale and the MVSFA is silent as to such notice. We hold, therefore, that the U.C.C. must prevail. See generally Associates Discount Corp. v. Palmer, 47 N.J. 183, 219 A.2d 858 (1966) (applying Pennsylvania law, and holding that the U.C.C. prevails when the MVSFA is silent).

Finally, we are unable to perceive any possible prejudice to the secured creditor in requiring compliance with the “notice of repossession” requirements as set forth in section 623 D of the MVSFA and the notice requirements of section 9504(c) of the U.C.C. The inconvenience of possibly an additional letter and postage stamp is far outweighed by the debtor’s inability, because of lack of notice, to protect his interests at the public sale either in person or through relatives or friends. Certainly the salutary goals of the legislature as set forth in its findings and declarations of policy, supra, page 1262, will be enhanced rather than impeded by requiring that notice be given pursuant to the requirements of both acts.

For all of the above reasons, we reverse the order of the trial court with instructions to enter judgment in favor of the appellants on their counterclaim in the amount of $1,614.01.

      . Appellant’s wife, Hyalene Nash, was not named in the notice of appeal. We shall therefore only refer to Mr. Nash as appellant.

      . The price included the sales tax of $173.70 and $24.00 for title transfer.

      . The trade-in allowance was $1300.00, less a pay-off of the existing loan of $1211.28, for a "net" trade-in allowance of $88.72.

      . All references in this opinion to the Uniform Commercial Code (U.C.C.) shall be to the numerical system adopted by the Pennsylvania General Assembly by the Act of November 1, 1979, P.L. 255, No. 86, § 1, 13 Pa.C.S. §§ 1101, etseq.

      . Although there appears to be a difference of four cents (.04), we suspect that the figure of $1814.63 was arrived at as follows:
      Amount which plaintiff-appellee was still owed by defendant-
      appellant .................................................... $2,632.79
      Less amount which plaintiff-appellee says was received for the
      vehicle at auction ........................................... 918,20
      1,714.59
      Plus repossession expenses .................................. 100.00
      $1,814.59

      . The figure of $1624.01 was calculated in accordance with the damage formula contained in the U.C.C., 13 Pa.C.S. § 9507(a), i.e., ten percent (10%) of the principal debt plus the credit service charge, i.e., the finance charge. Here the appropriate calculation would be as follows:
      Principal of debt $4390.34 x 10% ............................ $ 439.03
      Finance charge .............................................. 1,184,98
      Statutory Penalty ............................................ $1,624.01

      . We note that while § 623 D of the MVSFA also requires the secured creditor to give the buyer notice, of the place where the motor vehicle is stored, appellant here was merely told that the vehicle "is now stored in Philadelphia County.” In our view, a more precise address within the County (City) of Philadelphia would be required in order to satisfy this requirement found in § 623 D of the MVSFA; however, this lack of specificity by the appellee does not affect our result.

      . Whiteman v. Degnan Chevrolet, Inc., 217 Pa.Super. 424, 272 A.2d 244 (1970), was decided before the Superior Court was increased in size from a seven (7) judge en banc court to a fifteen (15) judge panelized court. The decision in Whiteman was unanimous.