author: McEWEN, Judge:

text:
    461 A.2d 281
    COMMONWEALTH of Pennsylvania v. William Wade YEAGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 20, 1982.
    Filed June 3, 1983.

      Alphonse P. Lepore, Jr., Assistant Public Defender, Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

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

This appeal is undertaken from the judgment of sentence imposed after appellant was convicted by a jury and sentenced to serve a term of from four to ten years for arson and a concurrent term of from two to five years for involuntary manslaughter. We reverse and remand for a new trial.

Appellant was charged with arson , causing or risking catastrophe, criminal trespass, failure to prevent catastrophe , recklessly endangering another person and criminal homicide, as a result of a fire in an apartment which had caused the death of a woman. Appellant during the presentation of his defense provided for character testimony. The Commonwealth during the cross-examination of one character witness posed the inquiry:

From your knowledge of this speech in the community did you hear that the defendant had been charged with Burglary and Larceny?

A second character witness was asked:

From your knowledge of the speech in the community which you referred to, did you hear that the appellant had been charged with Burglary and Larceny?

The prosecutor engaged in such cross-examination on the basis of his belief that appellant had been arrested and charged with those offenses. It subsequently appeared that the belief of the district attorney was based upon erroneous information and that, in fact, appellant did not have any record of arrest or conviction. As a result, the trial judge included the following instruction in his charge to the jury:

Members of the jury, there has been some testimony on cross-examination directed at some of the character or reputation witnesses that the defendant may have had a criminal record and we believe that that was later on corrected by testimony from the clerk of courts office that this defendant never has and did not have any arrest or any criminal record. Therefore, we direct and charge you to ignore and to disregard any statements pertaining to any criminal arrests or any criminal record that this defendant, William Wade Yeager, may have had. The testimony before you is that he does not and did not ever have an arrest or a criminal record.

While the distinguished Judge William J. Franks thereby exhibited a careful concern that appellant not suffer undue prejudice and provided specific direction to the jury to disregard any evidence concerning any prior arrest of appellant, appellant asserts that the prejudice caused by the cross-examination was beyond any recourse and that, therefore, he did not receive a fair trial. We agree.

It has long been the law in Pennsylvania that an individual on trial for an offense against the criminal law is permitted to introduce evidence of his good reputation. Commonwealth v. Castellana, 277 Pa. 117, 121 A. 50 (1923) (quoting Cathcart v. Commonwealth, 37 Pa. 108 (1860)). See Commonwealth v. Stefanowicz, 118 Pa.Super. 79, 179 A. 770 (1935). It is clearly established that evidence of good character is to be regarded as substantive evidence just as any other evidence tending to establish innocence and may be considered by the jury in connection with all of the evidence presented in the case on the general issue of guilt or innocence. See Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978); Commonwealth v. Stoner, 265 Pa. 139, 108 A. 624 (1919). It is thus clear that the law considers character testimony to be evidence of special significance by reason of its fundamental importance to an accused. It follows, therefore, that the presentation of such testimony must be free of confusion or shade of doubt in the first instance, since no effort, no matter how earnest, is likely to resolve the deficiency.

The Pennsylvania Supreme Court exhibited an intense concern that character testimony achieve its special purpose when, in a unanimous decision by the eminent Chief Justice Henry X. O’Brien, the Court prohibited cross-examination of character witnesses upon incidents of arrest and thereby halted what had been the practice in Pennsylvania. Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). The trial judge did not have, of course, the benefit of this decision of the Supreme Court which has served to guide our reflection upon this issue.

While one might accept the assertion of the Commonwealth that the evidence of the guilt of appellant was overwhelming, it is difficult to accept that the error was so insignificant that it could not have contributed to the verdict. See Commonwealth v. Story, 476 Pa. 391, 412, 383 A.2d 155, 166 (1978); Commonwealth v. Davis, 452 Pa. 171, 178-79, 305 A.2d 715, 720 (1973). It would seem, all too regretfully, that respect for the law and its procedures has been colored, if not replaced, by a cynicism that promotes a suspicion among the citizenry that the court and counsel are participants in an effort to conceal the facts and that the rules of evidence all too frequently screen a jury from the truth. As a result, under all of the. circumstances here present, it would have been easy surmise for a juror to conclude that appellant in fact had such an arrest record despite the statement by the court during the charge to the contrary. We are unable to conclude the error was so insignificant that it could not have contributed to the verdict.

Judgment of sentence reversed. Case remanded for new trial.

      . 18 Pa.C.S.A. § 3301.

      . 18 Pa.C.S.A. § 3302.

      . 18 Pa.C.S.A. § 3503.

      . 18 Pa.C.S.A. § 3303.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 2501.


source: Caselaw Access Project

author: CIRILLO, Judge: PER CURIAM:

license: Public Domain

text:
    461 A.2d 283
    Frances M. ZERANCE, Guardian of the Estate of Nicholas A. Zerance, Incompetent v. GUARDIAN LIFE INSURANCE COMPANY OF AMERICA and Carl J. Berst, T/D/B/A Middletown East End Warehouse Company.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1983.
    Filed June 3, 1983.
    Petition for Allowance of Appeal Granted Oct. 4, 1983.

      C. Kent Price, Harrisburg, for appellant.
    Robert P. Reed, Harrisburg, for appellees.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from the Order of the Court of Common Pleas of Dauphin County, dated November 5, 1981. The appellant, Frances M. Zerance, as guardian of the estate of her husband, Nicholas A. Zerance, an incompetent, initiated this action in assumpsit by requesting declaratory judgment. She asked the court to determine the propriety of the termination of her husband’s insurance benefits by the appellee, Guardian Life Insurance Company of American (hereinafter “Guardian Life”) and Carl J. Berst, t/d/b/a Middletown East End Warehouse Company (hereinafter “Warehouse”). Evidence was received by the court, and thus procedurally the proceeding was treated as a non-jury civil action: A verdict was entered in favor of the appellee and Warehouse on November 13, 1980. Exceptions were filed, denied, and dismissed, and judgment was entered in favor of appellee. This appeal followed.

The facts are not in dispute. Effective December 27, 1973, Guardian Life issued a group policy of life and disability insurance covering the employees of Warehouse. Appellant’s incompetent husband, Nicholas A. Zerance, was at that time an employee of Warehouse. In 1974, while the policy was in effect, Nicholas Zerance became totally and permanently disabled as a result of a surgical operation. Appellant was subsequently informed by letter dated June 26, 1974, which was prepared by an employee of Warehouse pursuant to information supplied by Guardian Life, that Guardian would cover several items of medical care for her husband and that this coverage would continue until the two hundred fifty thousand dollar ($250,000.00) major medical allowance was exhausted. Benefits, which had commenced immediately, were paid yearly while the appellant’s employer, Warehouse, kept the subject group policy in effect. Subsequently, on November 30, 1978, Warehouse cancelled the group policy with Guardian Life effective December 1, 1978. The appellant was notified of the cancellation and was also informed that pursuant to the termination clause in the policy, benefits would be extended until December 31, 1979. Total benefits paid by Guardian Life for appellant’s husband were approximately fifty-five thousand dollars ($55,000.00).

The facts of this case present a situation not often addressed by the courts in Pennsylvania. The cases that have addressed similar situations involve policy changes made after liability has occurred. Becker v. Berlin Beneficial Society, 144 Pa. 232, 22 A. 699 (1891) (beneficial society already paying benefits, may not reduce payments by subsequent amendment); Marshall v. Pilots Association, 206 Pa. 182, 55 A. 916 (1903) (disabled member not bound by subsequently amended by-law) or situations where group life insurance policies were canceled prior to the deaths of the beneficiaries. Miller v. Travelers Insurance Co., 143 Pa.Super. 270, 17 A.2d 907 (1941); Brown v. Carnegie-Illinois, 168 Pa.Super. 380, 77 A.2d 655 (1951). The case at bar presents a slightly different set of facts. In Miller and Brown, which were cited by the appellee, the employees’ life insurance policies were cancelled. This court held, that the employer was entitled to cancel these policies, because the insureds were properly notified and had not pursued their conversion privilege within the stipulated succeeding period. Accordingly, the court denied recovery to the beneficiaries, who sought death benefits when the former insureds died after cancellation of the policies.

The case at bar presents a rather different situation. In Miller and Brown, the benefit was a life insurance death benefit.' The right to receive this benefit did not exist until the deaths of the insureds. These individuals did not die until after the termination of their policies, which in turn extinguished their prospective right to the benefit. In addition, both of the cancelled policies contained a conversion privilege, which neither of the insureds exercised. In the instant matter, the appellant’s incompetent became disabled and therefore entitled to disability benefits long before the termination of the policy. Also, the policy specifically states that there is no conversion privilege “in the event of termination of the Group Policy”.

Appellant contends that the right of her husband to receive benefits fully vested at the time of disability, and as such, cannot be divested by subsequent termination of the policy.1 * This contention is supported by two well respected treatises on the law of insurance. “The rights of the insured, where disability occurs prior to the lapse of the policy, are considered vested or fixed, so that recovery can be had” Appleman, Insurance Law and Practice, § 644, page 222.

Since rights vest upon loss, a cancellation of the policy cannot destroy liability which has already attached for prior disability or death. A certificate issued under a master group policy providing for disability payments or death payments is not avoided by a cancellation of the policy by the employer where a compensable disability has occurred prior to such cancellation, ...

19 Couch on Insurance 2d, § 82:121, page 1067.

Appellant cites Turley v. John Hancock Mutual Insurance Co., 315 Pa. 245, 173 A. 163 (1934), in support of this very premise. In that case, appellant’s decedent belonged to an association which had taken out a group life insurance policy with an individual limit of $1,000.00. The proposed insurance “Plan of Protection” issued to the employees guaranteed full payment of the benefit upon the death of the insured if he became totally and permanently disabled after reaching the age of sixty. The certificate of insurance sent to the decedent had an additional proviso that the insurance would terminate when the insured ceased to be a member of the association, unless an election was made to continue the coverage pursuant to a conversion privilege. After age sixty, the decedent became totally and permanently disabled by heart disease and was later forced to quit work. Later, the association refused to accept further dues and notified him that he was “discharged”. Upon his death the insurance company refused to pay his widow, the named beneficiary, the $1,000.00. Both the Superior and Supreme Courts affirmed the decision in favor of the widow.

In the instant matter, Judge Lipsett, in his well reasoned opinion did an extensive analysis of Turley, and concluded that the rationale behind the Courts’ decisions was the fact that the certificate, which the decedent had received, included an additional factor, which had not been in the original “Plan of Protection”. Accordingly, he cited the following from the Superior Court opinion:

To construe this policy as contended for by appellants would be to permit the insurance company to have perpetrated a legal fraud upon this deceased and his beneficiary. For an insurance company to issue a circular in which certain insurance benefits are definitely provided for and then to issue a certificate not in accordance with the plan and proposal offered would be such a misrepresentation as in good faith should not be permitted.
Under the terms of the pamphlet when the disability occurred after 60 years of age, the policy became vested, its payment being merely delayed until the death of the insured. It is a rather unusual clause, yet it is the one to which the insurance company and the association agreed. The payment of premiums by the insured and their acceptance by the defendants for a period of ten months after the happening of the total disability is a strong confirmation of the fact that defendants themselves believed this insurance policy was still operative. However, under our view of this insurance contract, upon the happening of the total and permanent disability after the insured had reached the age of 60 years, the face of the policy became vested in the beneficiary and its payment merely delayed until the death of the insured.

110 Pa.Superior Ct. 578 at 588-89, 168 A. 356 at 360. (emphasis supplied).

Judge Lipsett correctly points out that there is no issue of misrepresentation in the appellant’s case. He then goes on to quote the following from the Supreme Court opinion in Turley, in which the Court responded to the insurer’s argument that separation from employment for any reason extinguished Turley’s rights under the insurance contract:

... Undoubtedly this contention would be sound had not a member’s substantive right prior thereto become fixed. Turley became totally and permanently disabled when he was a member of the association and an employee of the company. He was unable to continue his employment. When that condition arose he became entitled to the benefit from the insurance to be paid to his beneficiary at death. His rights became vested. True, the benefit was not to be enjoyed until death, but his beneficiary was then to receive it. Rights are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest ....

315 Pa. at 249-50, 173 A. 163 at 165 (emphasis supplied).

The discrepancy between the “Plan of Protection” and the certificate issued to the decedent may have been a factor in the Superior Court decision, but it is clear from the language in that opinion and the broader language of the Supreme Court, that the primary basis for the decisions was the concept that the insured’s rights had vested.

Cases in other jurisdictions have also adhered to this approach. In Pete v. Metropolitan Life Insurance Co., 171 So. 868 (La.App.1937), the insurance policy provided that the insured would receive his one thousand dollar ($1,000.00) life insurance benefit if he became totally and permanently disabled before the age of sixty. He subsequently did become so disabled and the policy was cancelled. In holding for the insured, the court stated, “It remains a fact that his disability arose while the policy was in effect and the subsequent cancellation of the policy would in no wise affect plaintiffs claim thereunder.” Id. at 871. In Carter v. Aetna Life Insurance Co., 272 Ky. 392, 114 S.W.2d 496 (1938) the court found for the insured. In so doing, the court stated, “To defeat the right to recovery under employee’s group policy by cancellation, it must be made before liability has attached”. Id. at 396, 114 S.W.2d at 498. In Watts v. Minnesota Mutual Life Insurance Co., 240 Ark. 72, 402 S.W.2d 111 (1966), the policy provided that if the insured became totally and permanently disabled he was entitled to the amount of the life insurance benefit. The policy also required that the insured be disabled for a period of at least six months to be determined to be permanently disabled. When the insured became disabled he had to stop working. He subsequently died five months later. His employer terminated his insurance three months after he became disabled, but two months before he died. The court held that the coverage under the employer group life policy had vested upon the occurrence of his disability, as was provided in the policy, and that the fact that the employer cancelled the policy before his death could not deny the payment of this benefit. See also, Shea v. Aetna Life Insurance Co., 292 Mass. 575, 198 N.E. 909 (1935) (company attempted to cancel employee’s insurance when he was totally and permanently disabled, but had to give proof after six months). But see, Blue Cross Blue Shield of Alabama v. Jackson, 42 Ala.App. 594, 172 So.2d 804 (1965) (coverage denied because notice of cancellation of policy before hospital confinement).

Having determined that the appellant’s right to benefits vested at the time that he became disabled, we must now address appellee’s contention that the right to those benefits was subject to the terms of the policy, more specifically that portion of the Major Medical Expense Benefits entitled “Coverage after Termination” which states:

If this insurance terminates for any reason (other than for non-payment of premium or because of exhaustion of the total benefit after age 65) and on such date of termination you or your dependent are totally disabled and under the care of a physician, coverage pertaining fully to the injury or sickness which caused the total disability will be extended during the uninterrupted continuance of such total disability, subject to all limitations and provisions of this Major Medical Expense Coverage. Covered Charges which would otherwise be payable for complications of pregnancy should also be paid after termination of insurance provided the pregnancy had its conception prior to the date of termination of insurance. This extension of insurance shall terminate on the earliest of the following occurrences: (a) the date these benefits are replaced by another plan providing similar benefits (other than a group policy issued by the Guardian) and under which you or your dependent are a member of clases eligible; (b) the date total disability ends but in no event beyond the last day of the calendar year next following the calendar year in which your insurance terminated, (emphasis added) (R. 41a).

This provision of the insurance policy plainly states that in the event that the insurance terminates coverage pertaining to total disability will be extended during the uninterrupted continuance of the disability. This was corroborated by the letter sent to appellant which explained the specific items to be covered and the monetary limits of this coverage i.e. $250,000.00. This letter did not inform the appellant of any time limit in which the total amount of these benefits must be paid. The policy then goes on to limit the extent of the insurance to no longer than one year after the insurance terminates. Appellant argues that these provisions do not apply to vested benefits and draws a distinction between “coverage” and “benefits” and “insurance”. While there may be a distinction to be made among these terms, the fact is that the policy seems to have two contradictory provisions. This court has held that, insurance policies are in essence contracts of adhesion, and consequently, any ambiguities or uncertainties in language are construed strictly against the insurer and in favor of coverage. Ranieli v. Mutual Life Insurance Co. of America, 271 Pa.Super. 261, 413 A.2d 396 (1979).

In the situation at hand, the appellant had no reason to know that her incompetent husband’s benefits would cease prior to his death, the end of his disability, or the extent of the $250,000.00 limit of the Major Medical Coverage. The letter to the appellant did not inform her that in the event that the entire group policy was cancelled, she would no longer be entitled to receive benefits. The terms in the insurance policy termination clause, specifically refer to insurance, but not to the payment of benefits to which she already had acquired a vested right.

Therefore, we hold that appellant is entitled to the balance of the disability benefits and that the termination clause of the policy may not be construed to divest her of this right.

Accordingly, we hold that the judgment in favor of the appellee, Guardian Life is reversed. Judgment entered in favor of the appellant for the balance of the two hundred fifty thousand dollars ($250,000.00) of disability benefits.

PER CURIAM:

AND NOW, this 15th day of August, 1983, the Application of Guardian Life Insurance Company of America Pursuant to Pa.R.A.P. 1732 for Stay of Judgment Pending Appeal is hereby denied. The Opinion Order is hereby clarified to read as follows:

Accordingly, we hold that the judgment in favor of the appellee, Guardian Life, is reversed. Appellant is entitled to have the expenses covered by the disability benefits paid until the Two Hundred Fifty Thousand Dollars ($250,000.00) major medical allowance is exhausted. We remand to the lower court to determine what covered expenses have been incurred by the appellant for her husband since December 31, 1979. We do not retain jurisdiction.

      . Appellant elected to abandon any claim against Warehouse, and its liability was not pursued in appellant’s brief or argument on exceptions.

      . Appellant’s husband was declared incompetent on April 15, 1975.

      . Appellant raises two other issues on appeal, but because of our determination of this first claim we will not reach the merits of these.

      . In Huber v. Travelers Insurance Co., 83 P.L.J. 225 (1935), plaintiffs decedent, an employee of the Ward Baking Company, obtained group insurance, which paid a death benefit of $1,500.00 if the employee became totally and permanently disabled before the age of sixty. Huber became disabled October 1, 1930. The employer continued to pay premiums on the policy until October 8, 1932. The entire policy was then cancelled. Huber died on June 20, 1933 and his widow claimed the $1,500.00 benefit. The court held [in an opinion by Musmanno, J. (later Justice) ] that Huber’s rights in the insurance had vested when he became disabled.
      While this case is not controlling for us, the language of Judge Musmanno is quite persuasive.
      But it would be indeed unfair to permit the defendant to receive premium payments in behalf of a supposed non-insurable and then set up the barrier of non-insurability after the event for which the person is insured happens, namely the permanent and total disability-
      The payment of $1500.00 because of a possible permanent and total disability is a decided risk that the insurance company assumed when the policy was issued and the cost for that risk was indubitably included in the premium amount.

        Id. at 227.
      In Houghton v. American Guaranty Life Insurance Co., 692 F.2d 289 (3rd Cir.1982). The Federal Court, applying Pennsylvania law, held that the insurer was required to pay benefits to the insured, after termination of the policy, up to the policy limits of $250,000.00. The insured had expenses resulting from a stroke that had occurred during the time that the policy was in effect.


author: BECK, Judge:

text:
    461 A.2d 288
    COMMONWEALTH of Pennsylvania, Appellant v. William David JAMES.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1982.
    Filed June 3, 1983.
    Petition for Allowance of Appeal Granted Oct. 4, 1983.

      Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Howard K. Hilner, Pittsburgh, for appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   BECK, Judge:

The Commonwealth appeals from an October 2, 1980 order granting suppression of an in-court identification of appellee, William James, as the perpetrator in an incident for which he was charged with involuntary deviate sexual intercourse, indecent assault, terroristic threats, and simple assault. Appellee pleaded guilty to those charges but subsequently petitioned to withdraw that plea of guilty, and that petition was granted.

Appellee moved to suppress testimony as to a composite drawing of the perpetrator, the photo identification, preliminary hearing identification and future in-court identification. On October 1 and 2, 1980, Judge Henry R. Smith presided over a suppression hearing. The suppression court denied the motion as to the composite, the photo array and the preliminary hearing, but granted the motion as to an in-court identification of appellee by the victim.

The case proceeded to trial on October 6, 1980 and on October 10, 1980, the trial court discharged the jury after ascertaining that the jurors were deadlocked and were unable to reach a verdict. On October 29, 1980, the Commonwealth appealed from the order granting suppression of the victim’s in-court identification. The lower court held that since the Commonwealth proceeded to trial, it waived the right to appeal from the suppression order.

While this appeal from a suppression order after a mistrial for manifest necessity raises an issue of first impression in this Commonwealth, we are persuaded that since retrial in this case is not barred by double jeopardy considerations and since the notice of appeal was filed within thirty days of the October 2, 1980 order as required by Pa.R.A.P. 903(a), the Commonwealth has not forfeited its right of appeal from that order.

Where, as here, the jury is discharged because of an inability to reach a verdict, it is clear that retrial is not barred by double jeopardy. As the Pennsylvania Supreme Court recently reiterated in Commonwealth v. Murry, 498 Pa. 504, 507-08, 447 A.2d 612, 613-14 (1982):

It is well-settled that the grant of a mistrial must be manifestly necessary in order to avoid the bar of double jeopardy on retrial. Arizona v. Washington, 434 U.S. 497, 509-10, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978); Commonwealth v. Santiago, 492 Pa. 297, 301, 424 A.2d 870, 872 (1981); Commonwealth v. Sullivan, 484 Pa. 130, 133, 398 A.2d 978, 979 (1979); Commonwealth v. Bartolomucci, 468 Pa. 338, 345, 362 A.2d 234, 238 (1976). Our eases leave no doubt however, that manifest necessity justifies discharge of a jury, when it appears that there is no reasonable probability of agreement on a verdict. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234; Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973). See also, Commonwealth v. Santiago, 492 Pa. at 303, 424 A.2d at 872; Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974); Standard 15-5.-4(c) of the American Bar Association Standards Relating to the Administration of Criminal Justice, Trial by Jury (2d ed. Approved Draft 1978).

The Commonwealth correctly notes that appellee has not challenged the propriety of the lower court’s order discharging the jury, and thus the propriety of that order is not before us. We must conclude then that the discharge properly was predicated upon a finding of manifest necessity and that appellee’s retrial therefore was not barred.

While we believe, and the Commonwealth acknowledges, that it would have been a better practice to have appealed from the adverse suppression ruling before appellee’s first trial, we will not consider waived an appeal from that ruling after a mistrial. We note that in the context of a belated suppression motion by a defendant, this Court has held similarly:

Appellant has ... not waived his right to raise his suppression claim by filing his motion for the first time prior to his retrial. The issue has been presented to the court below, and it has already passed on the merits of appellant’s claim. The issue is, therefore, properly preserved for our review.

Commonwealth v. Throckmorton, 241 Pa.Super. 62, 70, 359 A.2d 444, 448 (1976) (footnote omitted).

This Court sitting en banc in Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983) recently clarified our standard for reviewing a Commonwealth appeal from an order suppressing evidence. The Lapia Court held:

[W]e must determine for ourselves whether the order is appealable—whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone.

Id. 311 Pa.Superior at 277, 457 A.2d at 884.

Lapia held that neither a good faith certification of substantial handicap by the Commonwealth, see Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977); Commonwealth v. Deren, 233 Pa.Super., 373, 337 A.2d 600 (1975), nor an explanation that was outside the record but not inconsistent with that record, see Commonwealth v. Martz, 259 Pa.Super. 201, 393 A.2d 787 (1978); Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496 (1978) (plurality opinion), was sufficient to render appealable the order of a suppression court. The Lapia Court therefore expressly overruled Trefry, Deren, Martz and Kunkel.

Having set out the test as enunciated in Lapia, we next inquire as to whether the record reflects that the order will terminate or substantially handicap the prosecution. We conclude that the fact that the victim will not be allowed to assert the final link in the identification testimony—that appellee is the man who attacked her—will severely impair the prosecution. The jurors, faced with the task of determining whether the prosecution has proved beyond a reasonable doubt that appellant is guilty of the crimes with which he is charged, likely will be confused by the suppression court’s ruling—that she properly identified appellee and his photograph prior to trial, but that she cannot do so at trial. In the words of the trial court, the victim could testify:

(1) that she supplied information from which Officer Duffy prepared a composite; (2) that she selected a photograph of the defendant from a total of 16 photographs shown to her by Officer Gunthrie on May 2, 1979; (3) that she immediately identified the defendant at the preliminary hearing; and (4) that the person in court, was the same person whose photo she selected and who[m] she identified at the preliminary hearing. The later testimony is distinctly different from the assertion that the person in court was the assailant which the court’s ruling would bar.

Lower court opinion at 4. While it is clear that the lower court’s ruling did not deprive the prosecution of all available identification testimony, it did deprive it of a crucial final link in the victim’s testimony.

Having held that the suppression order substantially impaired the prosecution in proving its case, we now proceed to evaluate the propriety of the suppression order. In order to so evaluate, we herein summarize the evidence as presented to the suppression court.

On March 19, 1979, Police Officer Wade responded to a radio call for an attempted rape. Upon arrival, he talked to the victim who provided a description of her attacker. That description was of a black male, approximately 6'2" tall, stockily built,' light-complected and wearing a blue jean jacket. She also described the perpetrator as having a large Afro hairstyle and moustache. The following morning the victim provided a second description to Officer Jackson. That description differed slightly from the first in that the victim added the fact that the perpetrator had long sideburns.

Detective Duffy interviewed the victim in her home and produced a composite. Three weeks later in a separate investigation, he received the picture of an individual who resembled the composite. The man in the photograph was several inches shorter than the man described by the victim, but the features were so similar that the detective decided to show the victim a photo array which included this photograph. The victim selected appellee’s picture from the array of eight photos. She testified: “When I seen the photograph, I said 'This is the one,’ and they asked me if I was sure and I said, ‘I’m positive. I’d never forget his face.’ ” Notes of Testimony at Suppression Hearing (“N.T. S.H.”) at 207. She subsequently was shown a second array of eight photos none of which was of appellee. She did not select any of those as being of the perpetrator. She also identified appellee at the preliminary and suppression hearings as being the perpetrator.

The suppression court explained its rationale for suppressing the in-court identification of appellee as the perpetrator:

[T]he victim’s identification of the defendant did not become crystallized in her mind on the night of the incident, but only after observing the defendant at the preliminary hearing and during two full days of the suppression hearing. ... Any in-court identification would obviously be so tainted as a result of these subsequent confrontations that an in-court identification should not be allowed. Further, the suppression court, as a result of the foregoing was not convinced that the Commonwealth had clearly established the independent origin of the in-court identification.[]

Lower court opinion at 5. (Citation omitted.)

The suppression court specifically found the pre-trial identification procedures not to have been invalid and refused to suppress evidence as to those procedures. Since the court ruled that there was no primary illegality, we need not evaluate whether the in-court identification resulted from “exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Commonwealth v. Slaughter, 482 Pa. 538, 546, 394 A.2d 453, 456 (1978) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963)).

Assuming arguendo, however, that the pre-trial identification procedures were so unduly suggestive as to be inadmissible at trial, we would find an independent basis for an in-court identification in the instant appeal. The relevant criteria for determining whether the in-court identification is independent of the suggestive confrontation(s) have been stated many times:

(1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.

Commonwealth v. Lavelle, 277 Pa.Super. 518, 523, 419 A.2d 1269, 1272 (1980) (collecting cases).

Applying this test it becomes clear that even assuming the suggestiveness of the pre-trial confrontations, the victim’s independent opportunity to observe her assailant was proved by clear and convincing evidence. Specifically, the victim testified that she viewed her assailant’s face at extremely close range while he restrained her for a period of five to ten minutes. There was a street light nearby. Her assailant’s face was not covered. We also note the consistency in the victim’s descriptions of her assailant. As noted above, the only variation in her descriptions to police was the addition of the fact that he had long sideburns. In her initial description, she failed to mention that observation. We note that the victim’s estimation of the perpetrator’s height was several inches taller than his actual height. We will not accord that discrepancy much weight in light of the unerring accuracy of the rest of the description she provided. In addition, the victim testified: “I’m not that good on heights. I’m only 5'4", and to me, he seemed very tall.” N.T.S.H. at 199. The victim never identified any other individual as the perpetrator and picked him unequivocally as the perpetrator when shown his photo in an array which the lower court found to be properly administered. She did not hesitate in so choosing. The photographs shown to the victim were of men of similar age, hair style, facial hair and complexion. While six weeks elapsed between her observation at the time of the incident and her selection of appellant’s photo from the array, she was unequivocal in the identification. We conclude that the Commonwealth established by clear and convincing evidence that there was an independent basis for an in-court identification by the victim.

Order of the lower court suppressing the victim’s in-court identification of appellant is reversed, and this case is remanded for trial.

      . We note that appellee alleges that his Pa.R.Crim.P. 1100 rights have been violated and that he accordingly should be discharged. The October 2, 1980 order from which the Commonwealth appeals also denied appellee’s motion for discharge pursuant to Pa.R.Crim.P. 1100. It is clear, however, that appellee did not file a timely notice of appeal as required by Pa.R.A.P. 903(a) and (b), and that his Rule 1100 claim is not properly before us.

      . As we detail infra, we find to the contrary that the Commonwealth did clearly establish the independent origin of the in-court identification. Moreover, the lower court explicitly found such an independent origin in sustaining the victim’s identification at the preliminary hearing. See N.T.S.H. at 246-247. There is little doubt, of course, that the preliminary hearing confrontation was suggestive as appellee was the only individual in handcuffs.

      . There is no evidence of record supporting a finding that the initial photographic identification in this case "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Commonwealth v. Martin, 481 Pa. 515, 520, 393 A.2d 23, 25 (1978) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). As the Martin Court stated: "Since the pretrial photographic identification has been determined not to be constitutionally infirm, Martin’s third contention that the in-court identification of himself by [the victim] was impermissibly tainted by the prior pretrial identification must fail.” Id., 481 Pa. at 520, 393 A.2d at 26; see, e.g., Commonwealth v. Zabala, 303 Pa.Super. 72, 449 A.2d 583 (1982).

      . As this Court stated in Commonwealth v. Lavelle, 277 Pa.Super. 518, 522-523, 419 A.2d 1269, 1271-72 (1980):
      After a suggestive pre-trial identification, a witness will not be permitted to make an in-court identification unless the Commonwealth establishes by clear and convincing evidence that the in-court identification has an independent origin in the witness’ observations at the time of the crime and was not induced by events occurring between the time of the crime and the in-court identification. Commonwealth v. Rodgers, 472 Pa. 435, 372 A,2d 771, 776 (1977); Commonwealth v. Davis, 264 Pa.Super. 505, 400 A.2d 199, 201 (1979).


author: MONTEMURO, Judge:

text:
    461 A.2d 293
    Regina DOWNIE v. Edward DOWNIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1983.
    Filed June 3, 1983.

      Charles C. Shainberg, Philadelphia, for appellant.
    John Alden, Wayne, for appellee.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Delaware County Court of Common Pleas granting appellee’s petition to increase support, and denying appellant’s cross petition to decrease support.

The present action was initiated by appellee wife’s petition to increase support. Appellee sought an increase in support on the basis of an increase in expenses. In response, appellant husband filed a petition to decrease support, alleging as a basis that appellee was now working, and had not been at the time of the original order, and that one of the children on the prior order had become self-supporting.

The original support order in this action was entered in 1978. That order required appellant to pay appellee the sum of $126 per week, with $30 allocated to the support of appellee, and $32 allocated to the support of each of three children in appellee’s custody.

After conducting a hearing, the trial court sustained the recommendation of the master and modified the original order, granting the increase requested by appellee. The order entered removed one child, and directed appellee to pay $126 per week; $26 to be allocated to appellee, and $50 to be allocated to each of two children. In addition, appellant was directed to pay $330 in arrearages at the rate of $10 per week. This appeal followed.

On appeal, appellant argues that the trial court erred in denying his petition for reduction. As this is an appeal from a ruling on cross petitions, implicit in this is the argument that the trial court erred in granting appellee’s petition for an increase. Although appellant’s specific assertions of error are vague, it is clear that one of them is that the trial court failed to consider appellee’s earnings in fixing the amount of support owed.

It is well settled that in a support case this court will not normally reverse unless there has been an abuse of discretion on the part of the trial court. Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 421 A.2d 762 (1980); Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977); Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974). Among those situations which constitute an abuse of discretion are those where the law is overridden or misapplied. Prescott v. Prescott, 284 Pa.Super. 430, 426 A.2d 123; Commonwealth v. One 1961 Buick Special 4-Door Sedan, 204 Pa.Super. 293, 204 A.2d 288 (1964); Adelman v. John McShain, Inc., 148 Pa.Super. 138, 24 A.2d 703 (1942).

In the landmark case of Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974) our Supreme Court held that:

Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability. Thus, when we consider the order to be assessed against the father, we must not only consider his property, income and earning capacity but also what, if any, contribution the mother is in a position to provide.

Conway v. Dana, supra, 456 Pa. at 540, 318 A.2d at 326. Certainly the trial court was aware of the Conway case and in fact cites to it in its opinion (Slip opinion, trial court at 3). As the discussion below will demonstrate however, mere recitation of the legal principle does not equate with compliance.

Under circumstances similar to those in the case sub judiee, where both parents were wage earners, this court stated that for purposes of determining whether the rule of Conway v. Dana was satisfied it is necessary to know the expenses entailed in child support. Commonwealth ex rel. Lyle v. Lyle, 248 Pa.Super. 458, 375 A.2d 187 (1977). See also Commonwealth el rel. Buonocore v. Buonocore, 235 Pa.Super. 66, 340 A.2d 579 (1975). These expenses, once known, should then be divided between both parents in a manner equitably proportioned to their relative incomes. Id.

Looking to the record here, we are unable ourselves to determine what the expenses of child support are, and cannot tell what the trial court considered them to be. Regarding appellee’s expenses the opinion of the trial court states that “The expense sheets of the parties show that the prosecutrix has an income of $119 per week and expenses of $289 per week, while the respondent has an income of $315 per week and expenses of $182 per week.” (Slip opinion, trial court at 2). The next paragraph however states that “the prosecutrix testified that her expenses now total $347 per week ...” Id. These two statements are the only ones in the opinion which refer to appellee’s expenses. Obviously there is a conflict. It is impossible to make any sort of equitable apportionment of expenses without first fixing on a single figure which represents the amount of those expenses.

Assuming there was a single figure for appellee’s expenses however, there would still be a problem in this case. The evidence in the record as to appellee’s expenses refers to her expenses and the children’s combined (N.T. 12). There is no separate figure representing expenses for the children only. As a practical matter such a figure would have to be known if it is to be equitably apportioned. Assuming arguendo that appellee’s and the children’s combined expenses are $289, $5 may represent expenses for the children or $250 may represent expenses for the children. Without knowing such an amount, the trial court could not properly have complied with the requirements of Conway v. Dana, supra. Consequently, we must remand the case in order for it to do so.

Accordingly, the order of the trial court is reversed and the case is remanded. This court does not retain jurisdiction.

      . Actually the tabulated expense sheet of appellee shows expenses of $347 per week. The figure of $289 is written at the top of the sheet however.


text:
    461 A.2d 295
    J. William McINTYRE, Administrator of the Estate of Lori Anne Clark, Deceased, Appellant, v. Sherrill S. CLARK and Rodney B. Clark and John Richard Bannister, Oklahoma State University Educational and Research Foundation, Inc., and Oklahoma State University.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1983.
    Filed June 3, 1983.
    Petition for Allowance of Appeal Denied Oct. 4, 1983.

      Edward Silva, Philadelphia, for appellant.
    Scott Alan Fleischauer, Hollidaysburg, for appellees.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the Order of the Court of Common Pleas of Bedford County denying a new trial to the plaintiff-appellant, the Estate of Lori Anne Clark. Appellant raises only two issues on this appeal; one, that the jury award of no damages was inadequate, and two, that the defendant’s attorney made prejudicial remarks in his closing statement. We need not address the second issue because we agree that the damages were inadequate.

The facts relevant to the present appeal are as follows: On March 25, 1975, defendant-appellee, Sherrill S. Clark, was driving her 1972 Plymouth Sedan southbound on U.S. Route 220, outside St. Clairsville, Bedford County. Mrs. Clark was driving up Blue Knob, a steep upgrade, when her vehicle began to fishtail on the icy road. The vehicle crossed into the northbound traffic lane and struck a 1973 Dodge Van driven by John T. White. White’s vehicle was subsequently struck from the rear by a 1974 Chevrolet Van driven by defendant, John Richard Bannister. Mr. White and his wife, a passenger in the van, sustained serious injuries in the collision; as did Mrs. Clark. Mrs. Clark’s daughter, Lori Anne, a passenger in the Plymouth, died instantaneously.

Plaintiff-appellant brought a survival action against Mrs. Clark and her ex-husband, and also Richard Bannister, and his employer, Oklahoma State University. The case proceeded to trial before a jury. The trial was bifurcated, with the issues of liability and damages considered separately. In the liability determination, the jury found that only Mrs. Clark was negligent.

The estate filed a motion for a new trial which was denied by the trial court. It is from the order denying the motion for a new trial that the estate appeals.

Initially, we note that the decision of whether to grant a new trial is peculiarly within the competence of the trial court. This decision will not be disturbed on appeal except where there has been a clear abuse of discretion. Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657 (1969); Hose v. Hake, 412 Pa. 10, 192 A.2d 339 (1963). As this court stated in Mueller v. Brandon, 282 Pa.Super. 37, 422 A.2d 664 (1980):

Where the trial court grants a new trial on the ground of inadequacy, the appellate courts will not interfere in the absence of a gross abuse of discretion____ When the trial court refuses relief against an alleged inadequate verdict the appellate court will exercise even greater caution in reviewing the action. (Emphasis in original)

Id., 282 Pa.Superior at 41, 422 A.2d at 666 (quoting Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 420-21, 97 A.2d 816, 818 (1953)). Nevertheless, “appellate courts do not abdicate their power of review and will reverse where a clear abuse of discretion appears.” Bortner v. Gladfelter, 302 Pa.Super. 492, 496, 448 A.2d 1386, 1389 (1982). See also Hose v. Hake, supra; Mueller v. Brandon, supra.

In Morris v. Peckyno, 202 Pa.Super. 490, 198 A.2d 396 (1964), this court said:

As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instructions of the court, or, in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or the award is so inadequate that it should not be permitted to stand. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more.

Id., 202 Pa.Superior at 492, 198 A.2d at 397 (quoting from 15 AmJur. Section 231). See also Bortner v. Gladfelter, supra, 302 Pa.Superior at 496, 448 A.2d 1389 and the cases cited therein.

In the present case, after a determination of liability on the part of Mrs. Clark, the jury returned with a verdict of no damages. This was despite the uncontradicted testimony that the decedent was a healthy, industrious, twelve year old girl with an extremely high I.Q. She was an excellent student, class treasurer, and also engaged in and supervised many activities in her local church. Her career goal was to become a registered nurse. Testimony was presented by a vocational psychologist that the decedent possessed the attributes which would enable her to attain that goal. An actuary testified that the decedent’s work force expectancy would have been 38.5 years (assuming she attended college) and assuming further an average salary of $15,000.00 per year, the decedent would have earned $577,500.00 in her lifetime and expended a total of $202,125 for her personal maintenance; thus, having a net of $375,-375.00. The defendant rested without presenting any testimony on damages.

We find that the jury’s award has no reasonable relation to the damages sustained as indicated by the evidence. The injustice of the verdict stands forth like a beacon. Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 240 (1959). The award is completely inconsistent with the determination of liability and can only be attributed to some “misapprehension or mistake on the part of the jury.” Morris v. Peckyno, supra.

The trial court suggests in its opinion that the jury’s verdict was a compromise verdict because the evidence of Mrs. Clark’s negligence was slight. We do not agree. In Stokan v. Turnbull, 480 Pa. 71, 78, 389 A.2d 90, 93-94 (1978), the supreme court (quoting from Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 60 n. 3, 192 A.2d 689, 692 n. 3 (1963)), held:

“A compromise verdict is one where the jury, in doubt as to defendant’s negligence or plaintiffs freedom from contributory negligence, brings in a verdict for the plaintiff but in a smaller amount that it would have if these questions had been free from doubt. See Karcesky v. Laria, 382 Pa. 227, 234-235, 114 A.2d 150, 154 (1955); Hilscher v. Ickinger, 194 Pa.Super. 237, 242-243, 166 A.2d 678, 680-681 (1960). (Emphasis added).”

In the present case the jury found that only Mrs. Clark was negligent with respect to Mr. and Mrs. White, and with respect to the decedent. Yet the jury found that the Whites sustained damages in the amount of $30,000.00. There is no basis on which the jury could have found that Mrs. Clark was any less negligent toward the decedent than toward the Whites; nor is there any indication that the decedent, a passenger in the vehicle, was in any way contributorily negligent; nor were the injuries claimed subjective injuries the seriousness of which were capable of being controverted. The clear indication is that the jury had no doubt about Mrs. Clark’s liability. The trial court’s suggestion that this is a compromise verdict is unsupported by the circumstances of the case. In any event, compromise and capitulation are not to be confused. The jury’s verdict was so inconsistent with the determination of liability that we can only conclude that it was premised upon some mistake or misapprehension. Under these circumstances we find the verdict inconsistent with the determination of liability that we can only conclude that it was premised upon some mistake or misapprehension. Under these circumstances we find the verdict to be shocking and the refusal of the trial court to grant a new trial to be an abuse of discretion. Consequently, that decision must be reversed.

One final question remains to be answered. What is the extent of the new trial to be awarded? A new trial may be awarded solely on the issue of damages if (1) the issue of liability has been fairly determined, and (2) the question of damages is readily separable from the issue of liability. Troncatti v. Smereczniak, 428 Pa. 7, 235 A.2d 345 (1967); Reid v. Oxendine, 275 Pa.Super. 548, 419 A.2d 36 (1980); Lininger v. Kromer, 238 Pa.Super. 259, 358 A.2d 89 (1976); Lambert v. PBI Industries, 244 Pa.Super. 118, 366 A.2d 944 (1976).

The liability of the defendant, Mrs. Clark, was fairly determined by the jury in the initial part of a bifurcated proceeding. It was a determination separate from and prior to the damage determination. The damage determination was based on different evidence presented after the finding of liability. We conclude that it is proper to grant a new trial with respect to damages only. Bortner v. Gladfelter, supra.

Accordingly, the order of the trial court is reversed and the case remanded for a new trial on the issue of damages only. Jurisdiction is not retained by this court.

      . A compulsory non-suit was entered in favor of Mr. Clark.

      . A second action against the same defendants was brought by Mr. and Mrs. White and the cases were consolidated for trial.

      . This figure was reduced to ‘present value’ of $125,502.00 in accordance with the law at the time of trial which has been since changed in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980). An alternative calculation based on the assumption that the decedent attended high school only and obtained a job paying only minimum wage ($3.75 per hour). The net figure determined at $191,751.00, reduced to a present value of $67,489.00.


author: POPOVICH, Judge:

text:
    461 A.2d 299
    Phyllis FOX v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Appellant. Phyllis FOX, Appellant, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 23, 1983.
    Filed June 3, 1983.

      James J. Oliver, Norristown, for appellant (at No. 3124) and for appellee (at No. 3217).
    Roger Joseph Harrington, Philadelphia, for appellant (at No. 3217) and for appellee (at No. 3124).
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Appellee, Phyllis Fox, instituted an action in assumpsit against appellant, State Automobile Mutual Insurance Company, (hereinafter referred to as the Insurance Company), for personal injury protection (P.I.P.) benefits under a policy issued by appellant pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act. Appellant, while admitting the facts, denied coverage. The trial court granted summary judgment in favor of appellee, holding that she was a “victim” within the meaning and intent of the No-fault Act and, therefore, entitled to recover on the insurance policy. However, the court below denied appellee’s claim for attorney’s fees, finding that the position taken by appellant in denying coverage was incorrect but not frivolous. Both parties have appealed from the trial court’s disposition of the case. Finding no error below, we affirm the order in question.

The following facts were agreed to- by the parties for the purposes of the summary judgment motion: On February 25, 1979, at approximately 1:15 a.m., Mrs. Phyllis Fox was in bed in a second floor bedroom at her residence in Red Hill, Pennsylvania. Mrs. Fox’s 16 year old daughter and two of her daughter’s girlfriends were asleep in the ground floor livingroom. At about that time, a motor vehicle driven by James A. King, Jr., crashed into the side of the home and came to rest in the livingroom. Upon hearing the crash, which sounded to her like an explosion, Mrs. Fox, fearing for the childrens’ safety, immediately arose from bed, started down the steps to the livingroom, tripped over debris which had been thrown onto the steps by the crash, fell and was injured.

The Insurance Company relies on Dull v. Employers Mutual Casualty Co., 278 Pa.Super. 569, 420 A.2d 688 (1980), in support of its argument that a person who trips over debris left by an automobile accident should not be entitled to no-fault insurance benefits from his own carrier. In Dull, the party seeking recovery from his no-fault carrier parked his car at a lake, got out, and began to remove a boat from the car roof. As he was standing behind the car unloading the boat, he fell because of the condition of the land and sustained injuries. This Court analyzed the relevant No-fault Act provisions:

“Section 201 of the No-fault Act, 40 P.S. § 1009.201, provides in part: Tf the accident resulting in injury occurs in this Commonwealth, any victim ... is entitled to receive basic loss benefits in accordance with the provisions of this act.’ The No-fault Act defines ‘victim’ as ‘an individual who suffers injury arising out of the maintenance or use of a motor vehicle____’ 40 P.S. § 1009.103.
The No-fault Act further states:
‘Maintenance or use of a motor vehicle’ means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include:
... conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting from it.”

Id., 278 Pa.Superior at 571, 420 A.2d at 689.

Construing the words “occupying” and “alighting from” according to their common meaning, we held that Mr. Dull did not come within the statutory definition of “victim”. Id., 278 Pa.Superior at 571, 420 A.2d at 689, 690.

The Insurance Company would have us read Dull as holding that no-fault benefits may not be awarded to someone injured immediately after operation of a motor vehicle has ceased. Such an interpretation of Dull would be clearly unwarranted. As Mrs. Fox states in her brief, “Dull ... stands for no more than the proposition that courts will give effect to expressed statutory exclusions, such as that set forth in 40 P.S. § 1009.103.” Dull is inapposite to the case at bar since the exclusion for conduct in the course of loading or unloading a motor vehicle is not relevant to the instant facts. We stated in Dull that the legislative purpose behind the No-fault Act would not be furthered by extending liability to cases where no motor vehicle accident occurred. It is obvious in the case sub judice that although no automobile was operating at the time of the victim’s injury, a motor vehicle accident had occurred.

The court below found support for its holding in the recent case of Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981). In Eichelberger, the insured had run out of gas and was standing slightly on the highway behind her vehicle with her back to oncoming traffic while two good Samaritans were pouring gasoline into her car. The insured was killed when she stepped backward and to the left into the path of an oncoming vehicle. This Court found that the deceased’s negligent act was not so remote from the “ownership, maintenance or use of her vehicle as to be unconnected with them.” Id., 290 Pa.Superior at 274, 434 A.2d at 750. We held that there was coverage under the insurance policy, following the precedent of Manufacturers Casualty Insurance Company v. Goodville Mutual Casualty Company, 403 Pa. 603, 170 A.2d 571 (1961), where our Supreme Court construed the words “arising out of”, as used in an automobile insurance policy, to mean “causally connected with” and not “proximately caused by.” Eichelberger, supra, 290 Pa.Super. at 273, 434 A.2d at 749. We quoted Goodville as follows:

“ ‘When the provisions of an insurance policy are vague or ambiguous, they must be construed strictly against the insurer and liberally in favor of the insured. Had the insurer desired to limit its liability to accidents with such a close causal connection to the ownership, maintenance or use [of the motor vehicle] ... as to be encompassed within the scope of proximate causation, it could have and should have so stated in its policy. Construed strictly against the insurer, “arising out of” means causally connected with, not proximately caused by. “But for” causation, i.e., a cause and result relationship, is enough to satisfy this provision of the policy.’ Id., 403 Pa. at 607-608, 170 A.2d at 573.”

Id. 290 Pa.Super. at 273, 434 A.2d at 749.

In the instant case, the Insurance Company seeks to distinguish Eichelberger by contending that the issue in that case centered on the word “maintenance”, and that the instant case hinges on an interpretation of the word “use.” We are not pursuaded by this argument. We made no specific distinction between the terms “use” and “maintenance” in our holding in Eichelberger, and based our decision on a liberal construction, in favor of the insured, of the ambiguous and uncertain terms of the insurance policy. Eichelberger, supra, 290 Pa.Superior at 273, 434 A.2d at 749.

In granting summary judgment in favor of Mrs. Fox, the trial court quoted Heffner v. Allstate, 265 Pa.Super. 181, 401 A.2d 1160 (1979), where our Court stated, “ ‘Historically, the courts of this Commonwealth have ... found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature ..., we should err in favor of coverage for the insured.’ Id., 265 Pa.Superior at 187, 401 A.2d at 1162-63.” Lower Court Opinion at p. 6.

In the instant case, we are asked to ascertain whether or not Mrs. Fox is a "victim” within the meaning of the No-fault Act. That is, whether she is “an individual who suffers injury arising out of the maintenance or use of a motor vehicle....” 40 P.S. § 1009.103. The Insurance Company cites several cases from the courts of New York which refused to find coverage based on a “but for” test. See Walter v. Government Employees Insurance Company, 66 App.Div.2d 779, 410 N.Y.S.2d 663 (2d Dept.1978); New York City Transit Authority v. Ambrosio, 102 Misc.2d 846, 428 N.Y.S.2d 131 (App. Term 1980). In Walter, the no-fault claimant was injured while getting out of a bed inside a trailer parked in a camp ground and attached to a vehicle. In Ambrosio, the claimant was injured when she tripped as she was walking on the sidewalk to board a bus. We find these cases unpersuasive because, like Dull, supra, no motor vehicle accident occurred. Furthermore, in interpreting the words “arising out of” in 40 P.S. § 1009.103, we are guided by the courts of this Commonwealth when they construed this phrase, as used in an insurance policy, to mean “causally connected with” and not “proximately caused by.” See Goodville, supra; Eichelberger, supra.

We hold that the injury in this case arose out of the use of a motor vehicle and, therefore, that Mrs. Fox was entitled to No-fault benefits.

We affirm the denial of attorney’s fees in this case. The court below stated:

“We have concluded that although the position taken by the defendant in denying coverage was incorrect, such petition was a non-frivolous one. Our research has disclosed no case presenting quite this set of facts. While this alone is not dispositive, it did lead us to conclude that the insurance company’s denial of coverage was not ‘without reasonable foundation.’ Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981).”

Lower Court Opinion at p. 6, 7.

The relevant statute provides:

“If, in any action by a claimant to recover No-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.”

40 P.S. § 1009.107(3).

Mrs. Fox contends that the present case is so clearly and definitely one in which her entitlement to No-fault benefits is certain, that the Insurance Company’s denial of benefits must be deemed, per se, unreasonable.

We agree with the court below. The Insurance Company cannot be said to have acted without reasonable foundation by denying benefits based on the unusual facts of this case, where the victim injured herself by falling on the stairs of her home because a motor vehicle accident had occurred therein.

For the above stated reasons, we affirm the order of the trial court.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq., 40 P.S. § 1009.101 et seq. (hereinafter cited as the No-fault Act).


author: WATKINS, Judge:

text:
    461 A.2d 302
    COMMONWEALTH of Pennsylvania v. George J. GARNER, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1983.
    Filed June 3, 1983.
    Petition for Allowance of Appeal Denied Sept. 22, 1983.

      C. William Costopolous, Lemoyne, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of York County, Criminal Division, by the defendant-appellant, George J. Garner, Sr., after conviction by a jury of attempted voluntary manslaughter and violation of the Uniform Firearms Act. Post-trial motions were argued and denied. This appeal followed.

On the morning of April 7, 1980 at about 6:00 a.m., the defendant went to the Turkey Hill Market locate at 2704 S. Queen St., York, PA where his wife, Catherine, was employed. An argument ensued and the defendant shot her several times.

The questions raised on this appeal are: (1) whether the crime of attempted voluntary manslaughter exists under Pennsylvania law; (2) whether the arrest of the' defendant by the arresting officer was outside the limits of the officer’s jurisdiction; and (3) defendant’s claim of prosecutorial misconduct.

Section 901(a) 18 Pa.C.S.A. defines criminal attempt as follows:

“A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” The crime of voluntary manslaughter is defined in 18

Pa.C.S.A. 2503(a)(1) as follows:

“A person who kills an individual without lawful justification commits Voluntary Manslaughter if, at the time of the killing, he is acting under a sudden and intense passion resulting from serious provocation by the individual killed.”

In the case of Commonwealth v. Mason, 474 Pa. 308, 378 A.2d 807 (1977), the Supreme Court held:

“The trial court’s refusal to charge the jury concerning the element of intent necessary to convict of Voluntary Manslaughter was error. The term 'Voluntary Manslaughter’ contemplates an intentional or voluntary act on the part of the defendant.”

Voluntary manslaughter has been defined as a “non-malicious, felonious killing with specific intent either to kill or to seriously injure.” Commonwealth v. Moore, 398 Pa. 198, 202 n. 2, 157 A.2d 65, 68 n. 2 (1959).

As the court below stated:

“Defendant complains that the crime of which he stands convicted, attempted voluntary manslaughter, does not exist. We disagree. Voluntary manslaughter is an intentional killing, but without the malice required to raise the degree of culpability to that of murder. Dr. Gent testified that in his opinion the Defendant acted out of the heat of passion, anger, hostility or resentment. The jury apparently accepted that opinion, and found that the Defendant did in fact attempt to kill his wife while acting under the influence of those emotions, and with the intention of killing her. We are satisfied that the evidence and the law supports this finding.”

The question raised on appeal that the arrest was unlawful in that it was outside the limits of jurisdiction of the township arresting officer is without merit. The question was not preserved for appeal. No pre-trial motion was made concerning it and when raised at trial by motion of counsel for the defendant to strike the testimony of the arresting officer and in the alternative grant a mistrial, the court denied the motion and no exception was taken. The court acted correctly in refusing the untimely motion.

Furthermore, there is nothing in this record to show that the township police ever interrupted their search for the defendant from the time they learned of the shooting until the arrest even if six hours had passed. The offense was committed within the arresting officer’s jurisdiction. Any police officer of any political subdivision may arrest any person beyond the territorial limits of such political subdivision for a summary or other offense committed by such person within such political subdivision if the officer continues in pursuit of such person after commission of the offense. 1$ Pa.C.S.A. 8901. The crucial words of the statute “continuous pursuit” were present in this case. It is also important to note that the township police were accompanied and assisted by members of the Pennsylvania State Police. During the entire time of the search the township police were in touch by radio so the search was continuous.

The claim of prosecutorial misconduct is without merit. As the court below stated:

“8. Defendant alleges reversible error in the Court’s refusal to grant a mistrial during the Commonwealth’s summation. During summation, the District Attorney referred to the Defendant in the following terms ‘today is the first time that he admitted that he did it’. Defense counsel immediately objected, claiming prosecutorial misconduct in commenting upon the Defendant’s exercise of his Fifth Amendment rights. We do not see it in that light. It is true that the Defendant had not given the police any incriminating statement prior to trial, instead having denied committing the offense. At trial, however, the Defendant took the stand and admitted shooting his wife, although his testimony included elements of justification and of diminished capacity. The circumstances are not akin to a comment upon a Defendant’s election not to testify. In addition, the Court immediately gave cautionary instructions to the jury so as to cure any potential prejudice to the Defendant. We are satisfied that the Defendant was not, in fact, prejudiced by the prosecutor’s remark, and we find no merit in Defendant’s assignment of error in that regard.”

Judgment of sentence affirmed.

CIRILLO, J., concurs in the result.

      . We note that in August of 1982 the Legislature granted what amounts to state-wide jurisdiction to local police. See 42 PclC.S.A. 8953.


author: HOFFMAN, Judge:

text:
    461 A.2d 304
    Daniel J. KREIDER, Appellant v. Walter H. KLEINFELTER and Jennie Kleinfelter. Daniel J. KREIDER v. Walter H. KLEINFELTER and Jennie Kleinfelter, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1981.
    Filed June 3, 1983.

      Thomas P. Harlan, Lebanon, for appellant (at No. 2016) and for appellee (at No. 2109).
    Loren H. Schrum, Lebanon, for appellants (at No. 2109) and for appellees (at No. 2016).
    Before PRICE, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in granting appellees’ motion for judgment on the pleadings based on res judicata. We agree that the requirements for res judicata have not been met and, accordingly, reverse and remand for proceedings consistent with this opinion.

In the summer of 1976, appellees allegedly entered into an oral contract with Allen L. Brown, appellant’s employee, whereby Brown would receive a commission if he secured a purchaser for appellees’ real estate and business. On August 31, 1977, after producing a buyer and unsuccessfully attempting to collect his fee, Brown filed suit against appellees. In response to appellees preliminary objections, the lower court dismissed Brown’s complaint because he was not a licensed real estate broker. Thereafter, Brown filed a motion to amend his complaint, seeking to join appellant, a licensed broker, as a voluntary plaintiff. Appellees’ preliminary objections challenging the timeliness of the attempted amendment were sustained. On appeal to this Court, we affirmed. Brown v. Kleinfelter, 267 Pa. Superior Ct. 144, 406 A.2d 560 (1979).

Appellant filed suit, seeking Brown’s commission, on February 8, 1980. Appellees counter-claimed for costs and fees and motioned for judgment on the pleadings alleging that the action (1) was barred by the statute of limitations; (2) violated professional ethical standards; and (3) was brought in bad faith because of appellant’s knowledge of the earlier suit. The court granted the motion finding appellant’s suit barred by res judicata, and dismissed appellee’s counterclaim for costs and fees. This appeal followed.

Appellant contends that judgment on the pleadings was inappropriate because the requirements of res judicata were not met. We agree. Res judicata involves the effect of one judgment on a subsequent proceeding. Notoro v. Hyer Estate, 239 Pa. Superior Ct. 10, 361 A.2d 766 (1976). For a later action to be wholly barred, there must be a concurrence of four elements:

(1) an identity of the thing sued upon;
(2) an identity of the cause of action;
(3) an identity of the persons and parties to the action; and
(4) an identity of the quality or capacity of the parties suing or sued.

Dunham v. Temple University of the Commonwealth System of Higher Education, 288 Pa. Superior Ct. 522, 527, 534, 432 A.2d 993, 999 (1981); see Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975); Del Boring Tire Services, Inc. v. Barr Machines, Inc., 285 Pa. Superior Ct. 66, 426 A.2d 1143 (1981).

Even if we assume a concurrence of the first three identities, we cannot agree that as between appellant and Brown there is “an identity of the quality or capacity of the parties suing____” Dunham v. Temple University of the Commonwealth System of Higher Education, supra, 288 Pa. Superior Ct. at 534, 432 A.2d at 999. Section 16 of the Real Estate Brokers License Act provides:

No action or suit shall be instituted nor recovery therein be had, in any court of this Commonwealth, by any person, copartnership, association or corporation for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act to others than licensed real estate brokers, unless such person, copartnership, association or corporation was duly licensed.

Act of May 1, 1929, P.L. 1216, § 16, 63 P.S. § 446, repealed as of February 19, 1980, P.L. 15, No. 9, § 901. Courts have interpreted this section “as precluding any recovery of a commission, fee, or other consideration, by anyone who without a license acts as a broker in a transaction involving real estate.” Burke v. Israel, 264 Pa. Superior Ct. 286, 290, 399 A.2d 779, 781 (1979). See Verona v. Schenley Farms Co., 312 Pa. 57, 167 A. 317 (1933); Harrison v. Soffer, 221 Pa. Superior Ct. 275, 289 A.2d 752 (1972). If a licensed real estate salesperson, employed by a licensed real estate broker, negotiates a real estate transaction, only the broker has the capacity to sue for an unpaid commission. If a licensed salesperson or any unlicensed person sues for a commission owed, the underlying agreement or contract may not be enforced in his favor. See Burke v. Israel, supra (obtaining a license is a condition precedent to the enforcement of an agreement); Kusche v. Vulcanized Rubber and Plastics Co., Inc., 416 Pa. 364, 206 A.2d 40 (1965); Burns v. Gartzman, 139 Pa. Superior Ct. 453, 11 A.2d 708 (1939).

Although only a licensed broker may sue on a contract, either a licensed broker or a licensed salesperson may engage in the business of transacting real estate. 63 P.S. § 436(a). Therefore, a determination that an agreement is unenforceable because of the absence of a broker’s license, applies to the ability of the party to sue and not to the invalidity or validity of the underlying agreement.

Although Brown had no standing to sue for the commission, his inability does not affect appellant’s statutory capacity to sue or the validity or enforceability of the underlying agreement. Therefore, the actual determination that must be made, in light of appellant’s and Brown’s differing capacities to sue, is whether Brown was a licensed salesperson at the time the alleged agreement was made. If Brown was licensed, then the merits of the action, the existence and enforceability of the alleged contract, must be reached because of his capacity to enter into a real estate contract. If, on the other hand, Brown was not a licensed salesperson, the alleged contract would be wholly void and unenforceable as to any party, pursuant to a statutory inability to enter into the agreement. 63 P.S. § 436(a). See n. 6.

Based on the foregoing analysis, we find that the lower court erred in granting judgment on the pleadings. The identity of a capacity to sue, required for res judicata, has not been met. Accordingly, we reverse the order of the lower court and remand for proceedings consistent with this opinion.

Reversed and remanded.

JURISDICTION IS RELINQUISHED.

PRICE, J., did not participate in the consideration or decision in this case.

      . Appellees have not appealed from the dismissal of their counterclaim.

        . A motion for judgment on the pleadings, pursuant to Pa.R.Civ.P. 1034, "may be granted in cases which are so free from doubt that a trial would clearly be fruitless exercise.” Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966).

      . Appellant’s contention that the lower court’s action was improper because res judicata was not affirmatively pleaded by appellees as required by Pa.R.Civ.P. 1030, is meritless. In a motion for judgment on the pleadings, the court may only consider the pleadings themselves and any attachments thereto. Bata v. Central-Penn National Bank of Philadelphia, supra; Johns v. Castellucci, 264 Pa. Superior Ct. 591, 401 A.2d 753 (1979). Appellees’ new matter states that ”[t]he actions of the Plaintiff in joining this suit are malicious, vexatious and capricious because he was aware of a prior action involving ALLEN L. BROWN which was dismissed____" (Answer at 3, ¶ 16) (emphasis added). We find that the pleadings sufficiently preserved the issue for the lower court’s review.

      . A real estate salesperson includes "any person employed by a licensed real estate broker to list for sale, sell or offer for sale, to buy or offer to buy, or negotiate the purchase or sale or exchange of real estate, or negotiate a loan on real estate, or to lease or rent, or offer to lease, rent or place for rent, any real estate, or collect or offer, or attempt to collect, rent for the use of real estate, for or in behalf of such real estate broker____”63 P.S. § 432(b). The salesperson must also have a license. 63 P.S. § 436(a). A real estate broker is defined in 63 P.S. § 432(a).

      . Section 445(b) of the Real Estate Brokers License Act provides that “[n]o real estate salesperson] shall accept or receive compensation of any kind from any person, other than the licensed real estate broker by whom he is employed, for any service rendered or work done by such salesman in buying, selling, exchanging, leasing or negotiating a loan upon real estate or interest therein.” 63 P.S. § 445(b). Therefore, if a suit is necessary to collect a fee, the broker must first sue and then pay the salesperson the amount due him.

      . Section 436(a) prohibits anyone besides a licensed broker or salesperson "from engag[ing] in or carry[ing] on the business or act[ing] in the capacity of a real estate broker, or a real estate salesperson] ... without first obtaining a license."

      . The record does not indicate whether the lower court made a determination as to Brown's employment status. Appellant alleges in both his Memorandum supporting his motion for reconsideration of judgment on the pleadings (at 6) and in his brief to our Court (at 21-22) that Brown was, at all times pertinent to this action, a licensed salesperson employed by him.

      . We find appellees’ contention, that appellant’s action was barred by the statute of limitations, meritless. The Judiciary Act of 1978 provided for a four year statute of limitations for oral contract actions. 42 Pa.C.S.A.. § 5525(3). The Judicial Code, § 25(a), states that in any civil action or proceeding:
      (1) the time heretofore limited by statute for the commencement of which is reduced by any provision of this act; and
      (2) which is not fully barred by statute on the day prior to the effective date of this act; may be commenced within one year after the effective date of this act or within the period heretofore limited by statute, whichever is less ----

        Act of July 9, 1976, P.L. 586, No. 142. In the instant case, the agreement was allegedly entered into on August 2, 1976. Appellant’s action was brought on February 8, 1980. The new four-year statute of limitations was effective as of June 28, 1978. Appellees claim that because one year past the statute’s effective date is a lesser time period than the four years provided in the statute, appellant’s action should have been filed by June 27, 1979. This rather simplistic interpretation has no foundation, as the legislature could not have intended that a claimant’s time in which to bring an action, once six years and now four years, would be further reduced to one year. We interpret the act to allow those claimants whose six years were reduced to four years, and whose four years had already run, one year past the effective date of the act in which to bring the action. See Wilson v. Central Penn Industries, Inc., 306 Pa.Superior Ct. 146, 452 A.2d 257 (1982).


author: HOFFMAN, Judge: McEWEN, Judge,

text:
    461 A.2d 308
    COMMONWEALTH of Pennsylvania v. Bradley MAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1982.
    Filed June 3, 1983.
    Petition for Allowance of Appeal Denied Sept. 28, 1983.

      Stuart Wilder, Assistant Public Defender, Doylestown, for appellant.
    Jeffery M. Williams, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in admitting evidence of statements made by appellant without proper Miranda warnings. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

On July 22, 1979 appellant surrendered to Bensalem police after shooting Dr. Joel Bockol. At appellant’s subsequent jury trial, the Commonwealth’s evidence established the following: Appellant and Bockol were jockeying for position while driving upon Interstate 95. Appellant would pass Bockol, then cut in front of him and slow down, prompting Bockol to reciprocate. This maneuvering continued until appellant abruptly turned onto the Street Road exit. Bockol followed by driving over the grass separating the highway from the exit ramp. Both cars sped into the parking lot of a nearby donut shop. Appellant left his vehicle carrying a gun and warned Bockol to stay away. As appellant began to walk away, Bockol emerged from his car and grabbed appellant. Appellant shot Bockol in the stomach. Bockol staggered five to ten feet to appellant’s vehicle and reached in for the ignition key. Appellant then shot Bockol a second time from five feet away. Appellant’s testimony corroborated much of the Commonwealth’s evidence with several exceptions. Appellant testified that he had received anonymous threats prior to the incident and that Bockol’s attempts to run him off the road caused him to believe that Bockol had been the source of the threats. He admitted firing two shots at Bockol’s tires on Interstate 95 but alleged that the shots fired in the parking lot were in self-defense. Appellant was found guilty of voluntary manslaughter and sentenced to four-to-eight years imprisonment. This appeal followed.

Appellant contends that the lower court erred in permitting a corrections officer’s testimony about what he overheard appellant say to a prison psychiatrist because appellant had not been given the Miranda warnings. Appellant turned himself in to Bensalem police immediately after the shooting and was questioned from 4:30 to 5:30 p.m. After a second interrogation ended about 7:30 p.m., appellant was transferred to Bucks County Prison. After midnight, appellant was taken from his cell by Sgt. David Belgarde and interviewed in the prison infirmary by the prison psychiatrist. Belgarde positioned himself in the infirmary’s outer office to observe appellant and listen to the interview. He testified at trial that he had heard appellant tell the doctor: (1) “I don’t need this bullshit. I don’t want any trouble, but if anybody fucks with me, I will kill them;” (2) that he would kill the person who was “fooling around” with his wife; and (3) that he had smashed his army superior with a wrench, “poked him in his head and shot him with a .45.” (N.T. December 18, 1979 at 9-10). Neither Belgarde nor the psychiatrist gave appellant any Miranda warnings.

“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). “[A]bsent other fully effective procedures, a person must receive certain warnings before any official interrogation, including that he has a ‘right to remain silent’ and that ‘anything said can and will be used against the individual in court.’ ” Estelle v. Smith, 451 U.S. 454, 466-467, 101 S.Ct. 1866, 1875, 68 L.Ed.2d 359 (1981). Here, appellant was transferred to County prison and then hours later to the prison infirmary where he was interrogated by the prison psychiatrist while a corrections officer eavesdropped. The lower court concedes that the psychiatrist’s testimony would be precluded under Estelle v. Smith, supra, (psychiatrist’s testimony detailing statements made by defendant at court ordered pre-trial examination precluded from sentencing hearing because no Miranda warnings given). It cannot be seriously argued that a corrections officer, employed by the same institution and required by that institution’s security regulations to remain in appellant’s presence is not similarly precluded from testifying as to statements taken in violation of appellant’s Fifth Amendment rights. Thus, because appellant was not informed of his Miranda rights prior to the interrogation, any statements gleaned from it are inadmissible.

The lower court held, however, that even if it was error to admit the statements, the error was harmless beyond a reasonable doubt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). It found the jury verdict of voluntary manslaughter “so inconsistent with the Commonwealth case and so consistent with [appellant’s] version of what took place that we find it logically impossible to believe that the testimony of Belgarde could have or did in any way contribute to the verdict.... If the jury had believed and was influenced by Belgarde’s testimony, they (sic) would have found him guilty of third degree murder at a minimum.” (Lower Court Op. at 26-27). Recognizing that “verdicts are arrived at after many objective and subjective considerations and do not always conform perfectly to the instructions given by the court,” our Supreme Court rejected a remarkably similar attempt to surmise what a jury believed and disbelieved in Commonwealth v. Turner, 499 Pa. 579, 588, 454 A.2d 537, 540 (1982). “In order to draw conclusions from the verdict about what the jury believed, the [lower court’s] hypothesis about the jury’s state of mind would have to be a necessary and sufficient explanation of the verdict. But the most obvious of alternative explanations presents itself: the jury may have delivered a compromise verdict.” Id. Here, Belgarde’s testimony portrayed appellant as impetuous and violent and may well have resulted in the jury’s finding that he was acting under a mistaken justification. Similarly, the jury may have thought the Commonwealth’s case “significantly bolstered” by the additional statements and “that it would be appropriate to impose a verdict more severe than acquittal, but less severe than murder.” Id. In any event, we cannot be certain that the jury would have resolved the matter in the same manner absent the improper statements, and thus, we cannot hold that their admission was harmless beyond a reasonable doubt. Accordingly, we must vacate the judgment of sentence of the lower court and remand for a new trial.

Judgment of sentence vacated and a new trial granted.

JURISDICTION IS RELINQUISHED.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

While the opinion of the majority reflects a thorough study of the facts of the occurrence as well as a careful analysis of the applicable law, I must, nonetheless, very respectfully dissent.

The focus of the entire trial was a quite brief encounter when appellant twice shot the victim and the principal issue for the scrutiny of the jury was the claim of self-defense by appellant. Certainly, however, the description by appellant himself during his testimony at the trial concerning the preceding events upon the highway was significant:

I was in the center lane at this time and he was trying to cut me off the road again. That is when I reached into the console of my truck which was, like, between the seats and I pulled out my revolver and I shot two shots out of six, out the driver’s side window at the vehicle, front passenger side tire____ I had the gun in my left hand and I had it braced up against the rearview mirror that is bolted to the door and because of the wind and everything, we were going so fast, the wind made it very difficult to steady it.

The altercation on the parking lot, after the vehicles had come to a stop, was the subject of testimony by the accused and by six, apparently impartial, eyewitnesses. The decision of the jury was basically whether to accept the claim of appellant that he twice shot the victim in self-defense, the second time when the victim was clearly wounded and approximately five to ten feet away.

It seems beyond dispute that the prosecution should not have been permitted to present the following evidence: (1) the testimony of the prison guard about what he overheard appellant say to his prison psychiatrist; (2) the admission of appellant concerning the shooting of an officer while he was in the Army; and (3) the testimony of appellant during cross-examination by the prosecutor concerning his alleged shooting of a burglar. It would seem, however, that this inadmissible testimony did not portray any behavior or characteristic of appellant any more unfavorable than reflected by his behavior during the entire occurrence as he himself described it in his testimony.

Our examination of the record reveals that the trial was conducted over more than six days, that counsel for appellant provided an intense and able representation of his client, and that the distinguished Judge Oscar S. Bortner provided thorough and careful instructions to the jury upon the issue of self-defense. We also note that two of the three questions directed to the court by the jury during their deliberation requested a definition, one of “reasonable man” and the other of “retreating to safety”. It also seems worthy of note that appellant claimed no error in connection with either the general charge upon those issues relevant to self-defense or the additional instructions thereupon. As a result, I am convinced that the jury performed its task properly and well and that the improper admission of certain testimony did not constitute reversible error.

This conclusion rests upon the decision of our Supreme Court in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), as reiterated by that Court in Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), which held that evidence improperly admitted can be treated as harmless on any one of three grounds:

The evidence of guilt of the accused, without regard to the tainted evidence, is so overwhelming that conviction would have followed beyond a reasonable doubt without regard to that tainted evidence.
The tainted evidence was merely cumulative of other proper persuasive evidence on the issue for which it was offered.
The tainted evidence was so slight or tangential in its effect that its influence on the jury can be determined to have been de minimis.

As a result, I would affirm the judgment of sentence.

      . We cannot agree with the lower court’s finding that appellant waived any objection to the lack of Miranda warnings because he was deliberately broadcasting these statements to Belgarde to create a "macho image” and thus protect himself from the prison population. Had appellant been informed that his statements to the psychiatrist would be used against him at trial, he may well have reconsidered his purported strategy. Without the proper warnings, we cannot determine that appellant’s statements were "given freely and voluntarily without any compelling influences.” Estelle v. Smith, supra at 469, 101 S.Ct. at 1876; Miranda v. Arizona, supra 384 U.S. at 478, 86 S.Ct. at 1629.

      . The lower court’s holding that the admission of appellant’s statement concerning the shooting of his army supervisor was harmless because it was already properly before the jury through the testimony of another corrections officer who testified that appellant blurted it out while being processed at Bucks County Prison is also without merit. Assuming arguendo that the statement was not the result of police interrogation, it was still inadmissible as evidence of prior unrelated crimes. See Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Laughman, 306 Pa.Superior Ct. 269, 452 A.2d 548 (1982). The lower court’s subsequent limiting instruction to the jury was insufficient to cure the prejudice aroused by the irrelevant and offensive testimony. Commonwealth v. Laughman, supra.

      . Because of our disposition of this matter, we need not address appellant’s remaining contentions.