author: WIEAND, Judge:

text:
    584 A.2d 1034
    Kyle STOLARICK, Appellant, v. Amy S. NOVAK, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed Jan. 14, 1991.

      Donald A. Semisch, Willow Grove, for appellant.
    Roy M. Owens, Hatfield, for appellee.
    Before WIEAND, KELLY and CERCONE, JJ.
   WIEAND, Judge:

In this proceeding to modify an agreed custody order for two children, the trial court found that the father, with whom the children had lived after their mother left home in 1985, was an exemplary parent, who adored and cared for the children “on a standard of excellence in a physical, psychological and nurturing sense.” The court nevertheless took the children from their father’s home and awarded custody to their mother because the court disapproved of the father’s fundamentalist Christian beliefs and his enrollment of his children in a Christian school. After careful consideration, we reverse.

Our scope of review was defined in Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988), allocatur denied, 524 Pa. 629, 574 A.2d 70 (1990), as follows:

In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court’s inferences drawn from the facts. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-295, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Id., 470 Pa. at 295, 368 A.2d at 637. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination. Murphey v. Hatala, 350 Pa.Super. 433, 439, 504 A.2d 917, 920 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987) citing Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). Therefore, unless the trial court’s ruling represents a gross abuse of discretion, we will not interfere with its order awarding custody. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-598, 296 A.2d 838, 841 (1972), quoted in Lombardo v. Lombardo, 515 Pa. 139, 148, 527 A.2d 525, 529 (1987).

Id. 380 Pa.Super. at 21, 550 A.2d at 1343. See also: Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984); Beers v. Beers, 342 Pa.Super. 465, 468, 493 A.2d 116, 117 (1985). “[Petitions for modification of custody orders may be filed at any time, and in all such cases the court hearing the petition must consider the best interest of the child or children,” Martin v. Martin, 386 Pa.Super. 328, 332, 562 A.2d 1389, 1391 (1989), allocatur denied, 524 Pa. 629, 574 A.2d 70 (1990), including the child’s physical, intellectual, emotional and spiritual well-being. Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 244, 447 A.2d 630, 633 (1982); In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981). See also: Egelkamp v. Egelkamp, 362 Pa.Super. 269, 271-272, 524 A.2d 501, 502 (1987).

Kyle Stolarick and Amy Novak, formerly husband and wife, are the parents of two children, Tara Lynn, who was born August 23, 1979, and Kyle Gene, who was born December 18, 1981. Kyle and Amy separated in 1985, when Amy left home, and Kyle, on April 4, 1985, petitioned for custody of the children. The parties entered a temporary stipulation, approved by the court on May 21, 1985, for shared legal custody, but with primary physical custody in Kyle. In July, 1988, the matter was again before the court and was again resolved by an agreed order, dated September 7, 1988, awarding shared legal custody, with primary physical custody in father and frequent visitations for mother. In November, 1989, Amy petitioned for an order awarding primary physical custody to her. After several hearings, the court granted Amy’s petition, removed the children from their father’s home and awarded custody to their mother.

Following separation, Amy moved in with James Ceneviva, with whom she and a newborn son live in a two bedroom apartment. The Stolarick children have lived with their father in the family home, a three bedroom, Cape Cod dwelling, situated on approximately a half acre of land. Stolarick, who is employed as an electronic technician, cooks, cleans, does the laundry and maintains the household. The children are enrolled at Trinity Christian Academy, a private religious school, and attend Independent Bible Church. They are ably cared for and appear to be happy, well adjusted, and popular with their friends. The trial court found no fault with the father’s rearing of his children except for his fundamentalist Christian beliefs and his enrolling the children in a Christian school. With respect to this aspect of the case, the court opined:

On the surface this seems like an ideal adaptation under the circumstances but it is the degree to which the father has pursued “life in the Lord” that has deprived the children of social and educational opportunities and has presented them with a singleminded approach to life that is very restricted in view and allows for no spontaneity, artistic expression or individual development of rationale or logic or even just pursuit of ordinary curiosity. These children are being raised in a sterile world with very rigid precepts, with no allowance for difference of opinion, and no greater breadth then the doctrinaire limits of the religious beliefs.

These judgments, however, represent the views of the trial judge. They are not supported by evidence appearing in the record.

Religion is an important matter and should be given consideration in child custody matters, but it is not determinative. Boylan v. Boylan, 395 Pa.Super. 280, 283, 577 A.2d 218, 219 (1990); Egelkamp v. Egelkamp, supra 362 Pa.Super. at 272-273, 524 A.2d at 503; Rinehimer v. Rinehimer, 336 Pa.Super. 446, 450, 485 A.2d 1166, 1168 (1984); Morris v. Morris, 271 Pa.Super. 19, 28, 412 A.2d 139, 143 (1979). The Court in Morris v. Morris, supra, stated:

[W]e neither intend to, nor are capable of, rendering a value judgment on the intrinsic truth of the varied religious beliefs, but confine our investigation solely to any detrimental effect their practice may have on the development of the child.

Id., 271 Pa.Superior Ct. at 28, 412 A.2d at 144. See also: Commonwealth ex rel. Derr v. Derr, 148 Pa.Super. 511, 25 A.2d 769 (1942), cert. denied, 317 U.S. 631, 63 S.Ct. 57, 87 L.Ed. 509 (1942) (“it is not our province to attempt to weigh and determine the merits of the particular religious faith which the wife espoused as compared to the religious faith of the husband, who was a Methodist, or of any other”).

With respect to Kyle’s religious fervor, the testimony indicates that he has not pursued religion at the expense of neglecting his children. Through Kyle’s testimony, as well as numerous others attesting to his relationship with his children, we see that he has played an active role in the children’s educational, recreational and spiritual lives. On Kyle’s behalf, testimony was elicited that the children are well mannered, affectionate toward each other, happy, responsible and well adjusted. This is not the case of a parent engulfing his life in religious pursuits and abandoning his children. Compare: Commonwealth ex rel. Derr v. Derr, supra (mother properly deprived of custody of her two children because, her activities as a Jehovah’s Witness left little time to devote to the care of her children).

The evidence does not disclose that the children’s education was deficient in any way. Trinity Christian Academy was accredited by the American Association of Christian Schools. Tara was in the fifth grade and Kyle was in the third grade. The curriculum covers the core educational subjects as well as a full course in Christian non-denominational religious education. The students also participate in physical education, art and music classes. The teachers are graduates of religious affiliated colleges. The school supervisor, Mrs. Middleton, testified that the goal of the school is high academic standards, character development and leadership training. She said that the childrens’ academic progress had been normal and in some respects above average. Both children scored in the average percentile in the California Achievement Tests. There is no evidence that would support the trial court’s belief that the children have been deprived of social and educational opportunities and have been restricted in artistic expression or individual development of logic because of their attending a religious school.

After their mother left them, the children continued to live with their father in the marital home, and he has been the primary caretaker. The record suggests that his efforts have been successful. The courts have signalled the importance to a child’s development of a stable relationship with an established parental figure and a known physical environment. Where both parents are determined to be equally fit, the fact that a stable, long-continued and happy relationship has developed between the child and one parent may be of critical importance to the formulation of a custody decree. English v. English, 322 Pa.Super. 234, 240-241, 469 A.2d 270, 273 (1983). Thus, in Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982), Judge Beck wrote:

The removal of a young child from an established home with one parent has long been recognized as a factor which bears upon his emotional well-being. A child “becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it.” Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949); accord, In Interest of Tremayne Quame Idress R., 286 Pa.Super. 480, 429 A.2d 40 (1981); Jon M.W. v. Brenda K., 279 Pa.Super. 50, 420 A.2d 738 (1980).
It is clear that the continued presence of a fit parent who through daily affection, guidance, companionship, and discipline fulfills the child’s psychological and physical needs is crucial to the child’s emotional well being. The countless transactions between parent and child on a day to day basis build the foundation for the child’s future healthy development. The Pennsylvania courts have recognized this principle and have held that the “continued residence of children with one parent is a factor which may, in certain cases, be controlling.” Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821, 824 (1977). See also Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980).
Changes in custody can seriously disrupt a child’s life. A child of tender years should not be lightly removed from a parent with whom the child has lived since birth.
Furthermore, insofar as a parent’s past performance is likely to be predictive, judicial inquiry to determine the identity of the primary caretaker will yield evidence concerning the future commitment of a parent. If in the past, the primary caretaker has tended to the child’s physical needs and has exhibited love, affection, concern, tolerance, discipline and a willingness to sacrifice, the trial judge may predict that those qualities will continue.

Id., 302 Pa.Superior Ct. at 425-426, 448 A.2d at 1115 (footnotes omitted).

The record in the instant case reveals no basis for the trial court’s belief that the childrens’ horizons would be broadened by removing them from the “sterile” environment of a religiously oriented school. Both parents adore the children and are genuinely interested in playing a role in their future. For five years since the separation of their parents, however, they have lived with their father in a single residential home, and their father has ably devoted himself to their care. Under these circumstances, the trial court abused its discretion when it suddenly took them from the only home and family which they have known and awarded them to another whose facilities, if not inadequate, were less desirable and less familiar than those to which the children had been accustomed.

The trial court’s order of May 2, 1990 is reversed. The order of September 7, 1988, which approved the parties’ custody agreement, is reinstated, and the case is remanded to the trial court to consider and determine an appropriate schedule of visitation for appellee-mother. Jurisdiction is not retained meanwhile.

      . In light of this decision we do not specifically address appellant’s claim that the court erred in the procedure followed while conducting an in camera session with the children. Suffice it to observe that the proper proceedings are governed by Pa.R.C.P.1915.11. See: Gerald G. Junior v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981) (when a hearing judge interviews a child in a custody case: (1) counsel must be present; (2) counsel must have the opportunity to question the child; and (3) the testimony must be transcribed and made a part of the record).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    584 A.2d 1038
    COMMONWEALTH of Pennsylvania, Appellee, v. Gregory Alan ECKERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 24, 1990.
    Filed Jan. 16, 1991.

      Glenn D. Welsh, Reading, for appellant.
    Charles M. Guthrie, Asst. Dist. Atty., Reading, for Com., appellee.
    Before POPOVICH, FORD ELLIOTT and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Berks County, following appellant’s conviction of tampering with or fabricating physical evidence.

Herein, appellant questions whether the evidence was sufficient to sustain his conviction. After reviewing the record in the light most favorable to the Commonwealth, we are certain that the Commonwealth failed to establish all elements of tampering with or fabrication of physical evidence beyond a reasonable doubt. Commonwealth v. Wallace, 522 Pa. 297, 304, 561 A.2d 719, 722 n. 7; Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985); Commonwealth v. Madison, 501 Pa. 485, 462 A.2d 228 (1983) (standard of review for sufficiency of the evidence claim).

The procedural and substantive facts of this case were stated by the court below as follows:

On Monday, June 19, 1989, in the Parole Hearing Room at Berks County Prison during a private interview, Private Investigator Nevin G. Frey and Assistant Public Defender Gary L Dorsett, defendant’s court-appointed investigator and counsel, respectively, were given a two-page statement handwritten in their presence by inmate Howard Roy Emerick, Jr. Essentially this statement implicated a Brian Gavin, rather than defendant, as the murderer of defendant’s brother Michael Eckert. On March 1, 1988, defendant had been convicted by a Berks County jury on the July 14, 1987, stabbing death of his younger brother Michael at 424 South 10th St., Reading.
During an interview at City Hall by Reading Bureau of Police Criminal Investigator Michael J. Kurtz on June 21, 1989, Emerick repudiated, or disavowed, his earlier two-page statement to Messr. Frey and Dorsett as wholly false and wholly the product of his coercion, or intimidation, by defendant. On June 29, 1989, defendant was arrested by the PA State Police and charged with the alleged commission of the crimes of Intimidation of Witnesses or Victims, Tampering with or Fabricating Physical Evidence, and Criminal Solicitation (to Commit Perjury). (footnotes omitted)
After a Preliminary Hearing held before District Justice Douglas Heydt on August 15, 1989, all three criminal charges were bound into the Court of Common Pleas of Berks County. The case was called to trial on December 4, 1989, before the Honorable Calvin E. Smith and a jury, to which all three counts were given. On December 6, 1989, after about 5 hours’ deliberation, the defendant was found not guilty of the two felony counts, Intimidation of Witnesses of Victims and Criminal Solicitation (to Commit Perjury), but guilty of the single misdemeanor count of Tampering with or Fabricating Physical Evidence. On December 14, 1989, a posttrial Motion in Arrest of Judgment with respect to the misdemeanor of the second degree count was timely filed, and a hearing thereon was scheduled for December 27, 1990.

Trial Court Opinion, p. 2-3.

Appellant’s post-trial motion in arrest of judgment was denied, and this appeal followed. Tampering with or Fabrication of Physical Evidence, 18 Pa.C.S.A. § 4910, in pertinent part, provides:

A person commits a misdemeanor of the second degree if, believing that an official proceeding or investigation is pending or about to be instituted, he:
* * * * * *
(2) makes, presents or uses any record, document or thing knowing it to be false and with intent to mislead a public servant who is or may be engaged in such proceeding or investigation.

Thus,'the elements of the crime, as applied to the case at bar, are: 1) defendant believes an official proceeding or investigation is pending or about to be instituted; 2) defendant makes, presents or uses a false document; 3) defendant knows the document is false; and 4) defendant uses the document with the intent to mislead a public servant who is or may be engaged in the proceeding or investigation.

Instantly, we find that the facts presented fail to establish the first element of the crime. As stated in the comment to the statute, “The purpose of this section is to specifically penalize prehearing or investigation fabrication or tampering as a broad application of ‘obstructing justice.’ ” It is clear that this crime is intended to punish fabrication of evidence when the perpetrator believes an official proceeding or investigation is pending or about to begin, i.e., fabrication of evidence which would affect the fact-finding process of a criminal proceeding or investigation.

Instantly, there was no official proceeding or investigation pending or about to be instituted in which the false document (here, Emerick’s two-page letter) could be used to mislead. Tailored to the specific facts of this case, the crime was designed to prevent fabrication of evidence which could later be used at appellant’s murder trial. However, appellant had already been convicted of murder months before the document was created. The fact that appellant was not yet sentenced for murder is of no consequence because the fact-finding process was already complete at the time the false document was offered.

The distinction presently is that appellant used the false document with the intent to re-institute an otherwise closed investigation, rather than with the intent to mislead a public official who is already or about to be engaged in an investigation. Common sense dictates that the investigation of the veracity of the document itself can not serve as the underlying investigation element of the crime.

Having found that an element of the crime of Tampering with or Fabrication of Physical Evidence was not established beyond a reasonable doubt, we vacate appellant’s judgment of sentence.

Judgment of sentence vacated.

      . 18 Pa.C.S.A. § 4910(2).


author: MONTEMURO, Judge:

text:
    584 A.2d 1040
    Keith A. HILL, Appellant, v. Luann M. HILL, Appellee.
    Superior Court of Pennsylvania.
    Submitted Dec. 13, 1990.
    Filed Jan. 18, 1991.

      Cregg E. Mayrosh, Hellertown, for appellant.
    Richard J. Shiroff, Easton, for appellee.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   MONTEMURO, Judge:

This is an appeal from a decree in equitable distribution following the parties’ bifurcated divorce proceeding.

The parties were married in January of 1982 and separated three years later, in January of 1985. Their divorce was finalized in March of 1985. Two children, whose support is apparently the subject of a separate appeal, were born of the marriage. After hearing before a Master on the economic issues, appellee filed exceptions resulting in a de novo review by the trial court. The exceptions were sustained in part, and equitable distribution of marital property was ordered in accordance with an increased valuation of the income from certain real property. This appeal followed.

Although the appellant’s claim is couched in language which would indicate that several questions are being raised, in fact only one is presented: whether the trial court abused its discretion in refusing to allow the straight line depreciation permitted by and displayed on appellant’s federal income tax return to diminish the share of profits due to appellee from certain jointly owned rental properties which comprise the majority of the parties’ assets.

Appellant and appellee are respectively thirty and twenty nine years old. Both are in good health. Appellant completed the eleventh grade and is employed in a family business as a heavy equipment operator earning approximately $265 per week net plus medical benefits. He shares with his fiancee an apartment owned by his parents for which the rent is $260 per month. He also manages and maintains the two rental properties of which the profit is at issue here. The larger of these contains six apartment units, although only five are rented continuously. Appellant testified that the sixth apartment required extensive repairs which he had not the funds to make. The other property is a fully occupied four unit building. The mortgage balances on both is approximately $68,700, and the agreed upon value approximately $158,300. The combined straight line depreciation deduction taken upon this real estate on appellant’s federal income tax forms is $7388.

Appellee is a high school graduate who is employed as an assistant program manager at a travel agency earning approximately $150 per week net. No health insurance is included. She has custody of the parties’ two children, and with them resides in her parents’ house, contributing to household expenses as she is able.

Appellant has made no claim that the trial court’s ultimate disposition of the parties’ property was inappropriate. Rather he argues that the trial court erred in refusing to regard the depreciation deduction as representative of an actual out of pocket loss, and in so doing artificially inflated the value of the marital estate.

We begin by reiterating the principle that absent an abuse of discretion on the part of the trial court, we will not reverse an award of equitable distribution. Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988).

The question appellant presents has never been addressed by the appellate courts in relation to valuation for purposes of equitable distribution. However, as appellee correctly points out, it has often been dealt with for purposes of determining support. In Commonwealth ex rel Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981) this court held that in computing income on which a support award is to be based:

[q]uite naturally, the court should consider a parent’s income from whatever source; included in income should be monies received from the rental of real estate, but that “income” must reflect actual available financial resources and not the oft-time fictional financial picture which develops as the result of depreciation deductions taken against rental income as permitted by the federal income tax laws.

Id., 286 Pa.Superior Ct. at 568-9, 429 A.2d 668-9. See also, Flory v. Flory, 364 Pa.Super. 67, 527 A.2d 155 (1987); Lyday v. Lyday, 360 Pa.Super. 16, 519 A.2d 967 (1986); Parkinson v. Parkinson, 354 Pa.Super. 419, 512 A.2d 20 (1986); Leonard v. Leonard, 353 Pa.Super 604, 510 A.2d 827 (1986); Shapera v. Levitt, 260 Pa.Super. 447, 394 A.2d 1011 (1978); Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977).

The effect of federal income tax liability in determining value for purposes of equitable distribution has been addressed by our supreme court in Hovis, supra. There the dispute arose over appellant’s valuation of his pension plan as well as certain stock held by appellant in his employer company. Under a written shareholder’s agreement, appellant was required to redeem his corporate stock at book value. As this transaction would bring him a substantial gain, he reduced the value of the stock by an amount representing his anticipated federal and state capital gains liability. The same theory underlay his proposed pension valuation, that is, he valued the pension after calculating and subtracting the potential tax obligation.

As the Supreme Court pointed out, the list of factors provided by 23 Pa.S.A. § 401(d) as relevant to achieving a just division of property does not include potential tax liability for the trial court to consider. The court then reasoned that due to unforeseeable changes in the tax rate, the liability calculated by appellant was subject to fluctuations which represented the possibility of an ultimately unfair division of property.

The contrast with the instant situation is instructive. In Hovis a deduction for an inevitable and actual out of pocket loss was disallowed in determining the equitable distribution of marital property because the exact size of the loss was not apparent at the time the distribution was to be made. Here we are faced with a paper deduction from current income which serves only to lessen the amount of income on which tax may be calculated: depreciation, like capital gains taxes, does not appear in the list of factors. described by § 401(d). Despite appellant’s insistence that the trial court has equated depreciation with cash in hand, in fact, the trial court merely found that appellant’s claimed losses were increased by the depreciation, and found such losses “illusory.”

The theoretical nature of the reduction in value represented by depreciation underlies this court’s consistent refusal to regard it as a diminution of income for purposes of calculating support. Further, there is no argument here that the deduction bears any relation to the market value of the property; it does not and need not do so. Nor, despite appellant’s arguments to the contrary, does it relate to expenditures for maintenance of the properties. Moreover, appellant has failed to demonstrate how the depreciation affects his financial circumstances except to improve them by diminishing his tax liability. We find, as did the trial court that appellee has a right to share in that improvement.

Order affirmed.

      . During coverture the parties also resided in a family owned residence. Then, however, they paid no rent according to appellant’s testimony.

      . Although appellant putatively advances four issues for our review, in truth he merely makes multiple restatements of one claim. They are in fact dealt with in an integrated manner in his argument, and will be addressed as one herein.

      . 23 Pa.S.A. § 401(d)
      (1) The length of the marriage.

        (2) Any prior marriage of either party.
      (3) The age health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation of the marital property, including the contribution of a party as a homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.


author: HESTER, Judge: POPOVICH, Judge,

text:
    585 A.2d 1
    COMMONWEALTH of Pennsylvania v. Steven Patrick MIGNOGNA, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1990.
    Filed Dec. 20, 1990.

      Dante G. Bertani, Public Defender, Greensburg, for appellant.
    John W. Peck, II, Asst. Dist. Atty., Arnold, for Com., appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Steven P. Mignogna appeals from the April 14, 1989 judgment of sentence of two consecutive life terms followed by two concurrent five-to-ten-year terms of imprisonment. Sentence was imposed following his conviction of two counts of criminal homicide, and one count each of rape and statutory rape. The charges arose out of the deaths of two young girls, Melissa Baker and Penny Ansell, aged twelve and thirteen respectively. Appellant raises numerous allegations of trial court error. We vacate the judgment of sentence imposed on the rape conviction, but in all other respects, we affirm the judgment of sentence.

The evidence at trial establishes the following. On the evening of August 2, 1988, appellant and a friend, Michael Gionta, met the two victims, Melissa Baker and Penny Ansell, at a shopping center in Westmoreland County. The girls voluntarily entered the truck which was driven by appellant, and ultimately were taken to appellant’s home around 9:00 p.m. The four proceeded to a bedroom where they listened to music and talked. Melissa and appellant began to kiss each other, then left the room together, and went into another bedroom. Gionta and Penny returned to the living room downstairs. Penny then told Gionta that she had to return to her home by ten o’clock. Gionta called upstairs to appellant several times but received no response. When appellant finally appeared on the steps, he informed Penny that Melissa wished to speak with her in the bathroom.

Immediately after Penny went upstairs, Gionta heard a scream. He ran up the steps, entered the bathroom and observed Melissa lying in the bathtub, bleeding profusely from her slashed throat. Gionta’s next recollection is of sitting on appellant’s front porch and hearing the sound of heavy footsteps in the house. Appellant then appeared around the corner of the house and asked Gionta to assist him in bringing the girls’ bodies out of the house. When Gionta refused to help appellant with the bodies, appellant told him to stay where he was. Gionta agreed, and appellant returned to the house.

Gionta then began running across a bridge in the direction of his home. He was stopped three quarters of the distance across the bridge by appellant who pulled up beside him in his truck. Appellant ordered him to enter the truck, and Gionta eventually complied out of fear for his life. Gionta then observed the victims’ bodies in the back of the truck. Appellant drove the truck to a remote location where he attempted to remove the bodies from the vehicle. He twice requested Gionta’s assistance, but Gionta refused. Appellant eventually succeeded in carrying the bodies to the edge of a hill. He then returned to the truck and drove Gionta to his home.

When Gionta entered his home, he informed his parents immediately about what occurred at appellant’s home. Gionta and his parents immediately drove to the police station where Gionta reported the killings. Approximately three hours later, appellant was arrested in front of his home by police and subsequently was charged with two counts of criminal homicide, one count of rape, and one count of statutory rape.

Within four hours of his arrest, appellant provided police with two statements in which he admitted taking the victims to his home on the evening of their deaths, having sexual relations with Melissa, and disposing of their bodies later the same evening. He also identified the murder weapon and indicated where it was located.

Appellant filed numerous pretrial motions including a motion to suppress the statements he made to police, all of which were denied by the trial court. Following an eight-day jury trial, appellant was convicted on all counts. On April 14, 1989, appellant was sentenced to two consecutive life terms on the homicide convictions and concurrent five-to-ten year terms, which were consecutive to the life terms, on the rape convictions. Appellant filed post-trial motions which were denied by the trial court. This timely appeal followed.

Appellant raises numerous allegations of error on appeal. We will address these issues ad seriatim. First, appellant contends that he was denied due process at his preliminary hearing by the admission of a statement by the main prosecution witness, Michael Gionta, implicating him in the two homicides. Since the witness did not testify during the preliminary hearing, appellant argues that the statement was hearsay, and therefore, he was denied the right to confront his accusers. The Commonwealth responds that a denial of rights during a preliminary hearing does not require reversal of the verdict in the absence of specific prejudice caused by the violation. The Commonwealth also argues that any deficiency in the preliminary hearing is rendered harmless upon a determination at trial that the Commonwealth’s evidence is sufficient to be submitted to the jury. We concur with the arguments made by the Commonwealth.

As we stated in Commonwealth v. Harvin, 346 Pa.Super. 575, 581, 500 A.2d 98, 100 (1985), the principal function of a preliminary hearing is to “protect an individual’s right against unlawful arrest and detention.” See also Commonwealth v. District Justice Edward Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990). We further indicated that the preliminary hearing is not a trial, and the purpose is to determine whether a “sufficient case has been made out to hold the accused for prosecution.” Id., 346 Pa.Super. at 581, 500 A.2d at 100. While we agree with appellant’s assertion that a preliminary hearing is a critical stage of the criminal process and that such hearings are not to become “hearsay mills,” a defendant must establish the existence of actual prejudice arising from a denial of due process at the preliminary hearing in order to be afforded the remedy of discharge. Commonwealth v. Gwyn, 449 Pa. 131, 295 A.2d 73 (1972); Commonwealth v. Rines, 247 Pa.Super. 429, 372 A.2d 901 (1977). But see Commonwealth v. District Justice Edward Verbonitz, supra (plurality opinion indicating that right to cross-examination is to be afforded at preliminary hearing). Appellant asserts that the admission of Gionta’s statement caused the charges to be bound over for court by the district justice. A review of the evidence presented, however, makes it evident that a prima facie case had been established by the prosecution without Gionta’s statement. The coroner’s report regarding the circumstances surrounding the victims’ deaths, the evidence of the location of the victims’ bodies when they were found, and appellant’s statements regarding his role in the killings provided sufficient evidence to establish a prima facie case that appellant had committed the offenses charged. Compare Commonwealth v. District Justice Edward Verbonitz, supra (where sole evidence used to establish prima facie case at preliminary hearing was hearsay, evidence was insufficient to bind over defendant for trial and defendant was granted habeas corpus relief). Therefore, appellant's claim of prejudice arising from the admission of Gionta’s statement during the preliminary hearing is inadequate, and we find no error in the trial court’s ruling.

We also find that Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980), a supreme court case relied upon by the Commonwealth, lends additional support to the trial court’s ruling. While Hess concerned the question of whether an appeal from the denial of a petition for a writ of habeas corpus questioning the sufficiency of the evidence before a district justice was interlocutory, the court stated the following in discussing the issue before it: “If, in fact, it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless.” Id., 489 Pa. at 590, 414 A.2d at 1048. Since such a determination clearly was made by the trial court in the instant case and no argument is made that, the alleged error tainted the verdict, the error is rendered harmless and appellant is precluded from raising the issue on appeal.

Appellant next argues that the trial court erred in failing to suppress his incriminating statements made after he indicated to police that he wished to cease discussing the event. Appellant asserts that his efforts to cease discussions with police constituted an invocation of his right against self-incrimination and that upon assertion of this right, he should have been given access to counsel. Consequently, he argues any subsequent waiver of his fifth amendment rights was invalid. In response, the Commonwealth relies upon Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), in support of its argument that incriminating statements obtained after an initial decision to remain silent can be admissible if a defendant’s request to stop the questioning on each occasion was scrupulously honored.

A careful review of the record reveals the following. Appellant was arrested on August 3,1988, at approximately 3:40 a.m. He immediately was advised of his Miranda rights. Notes of Testimony (“N.T.”), 3/14/89, at 155-56. He then was transported to the district police station where he was searched by Sergeant Michael Mastroianni. During the search, appellant repeatedly asked to speak to Lieutenant Charles Knoll stating, “[W]here’s Charlie ... go get him, I want to see him, tell Charlie to come down, I want to talk to him.” Id. at 125-26.

Sergeant Mastroianni relayed appellant’s request to Lieutenant Knoll. Id. at 157. Lieutenant Knoll arrived at the station at approximately 4:15 a.m. and met with appellant while appellant was in his prison cell. Knoll again advised appellant of his Miranda rights, and appellant orally agreed to waive them. Id. at 168-69. During the interview, appellant admitted to meeting the victims, driving them to a park and to find cigarettes, and finally to his home. However, when asked about what happened at that point, appellant stated, “I don’t want to talk about that right now.” Lieutenant Knoll asked if would want to talk later, and appellant said yes. Id. at 169-70. The interview then concluded.

At approximately 7:05 a.m., Lieutenant Knoll returned with Detective William Manning to interview appellant. Appellant was taken to a different location in the station, again advised of his rights, and signed a written waiver of them. Detective Manning then informed appellant that Michael Gionta had reported the murders to the police and had given them a detailed statement about what occurred. Appellant responded that Gionta’s statement was truthful. He then reiterated the events of that evening, including picking up the girls, driving them to various locations, and eventually arriving at his home. He indicated that he and Melissa went to his bedroom and then to his mother’s bedroom where they engaged in sexual relations. When asked whether Melissa had agreed to have sexual relations with him, he indicated that he “sort of talked her into it.” Id. at 204. When asked how and why he killed Melissa, he responded that he did not want to talk about that. Then appellant admitted that he summoned Penny from upstairs, telling her that Melissa wanted to speak to her. When asked how he killed Penny, he again stated that he did not want to talk about that. He did respond to a question about where the murder weapon was located and also gave the details about his removal and disposal of the bodies. Id. at 204-05.

The question before us is whether the police scrupulously honored appellant’s right to terminate the interrogation. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the court promulgated several safeguards to protect citizens’ fifth amendment rights during interrogation. These safeguards include the requirement that police cease interrogation upon assertion of the right to remain silent. Subsequently, however, the court in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), determined that Miranda did not impose an absolute ban on resumption of questioning following invocation of the right to remain silent. The court ruled that a statement obtained from a defendant who initially had expressed his desire to remain silent was admissible in light of the fact that the police “scrupulously honored” his right to cease the questioning. Id., 423 U.S. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 321. In determining that the police had acted properly, the court considered the following facts: 1) the defendant had been advised of his Miranda rights before both interrogations; 2) the officer conducting the first interrogation immediately ceased the questioning when the defendant expressed his desire to remain silent; and 3) the second interrogation occurred after a significant time lapse, was conducted in another location by another officer, and related to a different offense.

In the present case, as in Mosley, police officers properly advised appellant of his Miranda rights before commencing both interrogations. In addition, the officer conducting the first interrogation immediately terminated the questioning when appellant indicated that he did not wish to discuss the actual killings of the victims. Further, appellant indicated that he might discuss the killings later. The second interrogation occurred after a three-hour time lapse, well within the “more than two” hour lapse determined by the court in Mosley to be “significant.” Id., 423 U.S. at 104, 106, 96 S.Ct. at 327, 46 L.Ed.2d at 322. The second round of questioning involving appellant also was conducted in a different location and by a different officer. While appellant’s second interrogation was not about a “different” offense, this is not significant under the facts of this case. In Mosley, the defendant stated that he did not want to talk about his involvement in the offenses that police were discussing with him. He cut off questioning absolutely. The second interrogation related to a different crime, which the Court considered significant due to the fact that defendant absolutely invoked his right to remain silent as to those first offenses.

In the present case, appellant did not absolutely invoke his right to remain silent. He was candidly discussing the circumstances of the crime when he stated that he did not wish to discuss the actual murders “now.” He indicated that he may be willing to discuss the matter later. Police ceased questioning, resumed it “later,” in accordance with his request, and reiterated his Miranda rights prior to resumption of the questioning. Thus, the fact that the second interrogation was not about an unrelated crime is not an important factor, as it was in Mosley.

In this case, as in Mosley, the circumstances attending the defendant’s invocation of his right to silence completely controlled the circumstance which attended the resumption of questioning. The purpose of the second interrogation was not to entice the arrestee to abandon his right to remain silent, but to determine whether he had a change of mind, for it was the arrestee who suggested to police during the questioning that he might wish to speak about certain matters at a later time. Police actions were irreproachable.

Thus, this is not a case in which police failed to honor a decision to terminate questioning either by refusing to discontinue the interrogation or by persisting in repeated efforts to change appellant’s mind. See Michigan v. Mosley, supra. To the contrary, the police immediately ceased the first interrogation upon appellant’s assertion that he did not wish to talk about the manner in which he killed the victims at that time. The questioning resumed only after the passage of a significant period of time and the provision of a new set of warnings, which appellant chose not to heed. As we stated previously, we find it significant that appellant never expressed a desire to completely terminate all questioning. Indeed, he repeatedly and urgently asked to talk to Lieutenant Knoll upon his arrest, and at the conclusion of their discussion, indicated that he did not wish to discuss, at that time, the manner in which he killed the victims. In fact, he stated that he might wish to continue the discussion later. During the second interrogation, he freely provided additional detailed information concerning the killings and refused to answer only the questions concerning the manner in which he killed the victims. At no time did he indicate to the authorities that he wished to consult with an attorney; nor did he express a desire to completely terminate the questioning. His refusal to discuss how he committed the murders was scrupulously honored by the police. Consequently, we find no error in the trial court’s ruling that appellant’s statements were not obtained in violation of his Miranda rights.

In the third issue presented for our review, appellant contends that the trial court committed reversible error by unreasonably restricting defense counsel’s questions during voir dire. Further, appellant argues that the trial court’s restrictiveness resulted in unnecessary utilization of peremptory challenges by defense counsel. Upon review of the voluminous record of the voir dire examination, we find no error in the trial court’s rulings on the multitude of questions put forth by defense counsel during the proceedings. Indeed, we credit the trial court in successfully seating an impartial panel without undue delay in the face of defense counsel’s persistent and improper questions to the majority of panel members who were examined.

As we observed in Commonwealth v. Hoffman, 263 Pa.Super. 442, 398 A.2d 658 (1979), the purpose of voir dire is to secure a competent, fair, impartial and unprejudiced jury. During voir dire then, the parties are limited to determining whether a juror has a fixed opinion or may otherwise be subject to disqualification for cause. Hypothetical questions, or questions which seek to determine what a juror’s decision might be, based upon the evidence to be presented at trial, are improper. Commonwealth v. Werts, 483 Pa. 222, 395 A.2d 1316 (1976); Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973). We also have held that a juror may be impartial even though he indicates that he has formed an opinion regarding the guilt of the defendant as long as he also indicates he can lay aside that opinion and follow the law. Commonwealth v. McBee, 267 Pa.Super. 49, 405 A.2d 1297 (1979).

In the present case, well in advance of jury selection, the trial court requested that the prosecution and defense submit written proposed questions for voir dire and then held numerous discussions in chambers to review the propriety of each question submitted. N.T., 3/6/89, at 60-112, 148-150. The court’s rulings on the questions were in accordance with the principles set forth in Commonwealth v. Hoffman, supra; Commonwealth v. Werts, supra; Commonwealth v. Johnson, supra; and Commonwealth v. McBee, supra. In addition, the court permitted both parties to ask follow-up questions, not approved in advance, when, for example, a juror admitted to having a preconceived opinion or that he was having difficulty understanding the nature of an approved question. N.T., 3/6/89, at 119-120, 973-980, 1224-1239.

Appellant contends that the trial court “disallowed any latitude from the question approved” and cites, as an example, an exchange with the court concerning a juror who allegedly admitted to having a preconceived opinion concerning appellant’s guilt. Appellant’s brief at 15. However, a review of the record of this exchange reveals that first, the question put forth by defense counsel was improper in that it was an attempt .to learn how the juror might view the evidence to be presented. N.T., 3/6/89, at 146-147. Second, when the juror indicated that he had a fixed opinion regarding appellant’s guilt, the court itself asked numerous follow-up questions to determine whether the juror could put aside such an opinion and render an impartial decision. N.T., 3/6/89, at 135-136. It was unnecessary and repetitive for the defense to persist in asking additional questions about the source of the juror’s opinion since the trial court already had exposed and resolved the issue thoroughly with the juror.

Appellant cites several other instances in which he claims that the trial court unduly restricted voir dire. N.T., 3/6/89, at 179, 185, 455-511, 522-530, 981-986, 1274-1279. In each instance, however, as in the example cited above, the question either was improper or was repetitive due to the follow-up questions already asked of the juror by the court itself. Appellant fails to cite a single instance in which the court unduly restricted questioning of a juror where some sign of instilled partiality was exhibited.

Similarly, we find unpersuasive appellant’s related argument that the trial court’s restrictions caused the defense to unnecessarily utilize peremptory challenges. The contention, once again, is based upon the claim that the court unduly restricted questioning of prospective jurors by the defense. As we find that the trial court afforded the defense reasonable latitude during voir dire, we conclude that the defense was not forced by the court’s rulings to utilize unnecessarily its peremptory challenges.

Appellant asserts in his fourth argument that the trial court erred in denying his demurrer to the Commonwealth’s evidence on the charges of criminal homicide of Melissa Baker and Penny Ansell and on the charge of rape of Melissa Baker. We conclude that the issue as presented is not properly preserved for appellate review. In the seminal case on this issue, Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976), the supreme court determined that since the defendant chose not to rest following the denial of his demurrer and instead elected to present a. defense, the “correctness of the ruling on the demurrer was no longer an available issue.” Id., 466 Pa. at 347, 353 A.2d at 388. Nevertheless, the court decided to treat the challenge as one to the sufficiency of the evidence rather than as a challenge to the propriety of the trial court’s ruling on the demurrer. Since appellant herein chose to present a defense following the denial of his demurrer, the issue is waived. However, we will follow the same course as the court in Ilgenfritz and treat the claim as one challenging the sufficiency of the evidence. We will address the sufficiency issue in a later portion of this opinion.

Appellant next raises four challenges to the trial court’s charge to the jury. First, he argues that the trial court erred by refusing to charge the jury with an instruction on voluntary manslaughter. Appellant relies upon Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), in support of his assertion that when “a ‘heat of passion’ instruction is requested for voluntary manslaughter under section 2503(a) in a murder trial, a defendant has an unconditional right to it.” Appellant’s brief at 25. While we agree that Jones requires the provision of a heat-of-passion voluntary manslaughter instruction to a jury upon request and even in the absence of evidence to support it, we observe that the principle of Jones was greatly eroded by the supreme court in Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983). In Carter, the court held that the ruling in Jones had no application under section 2503(b), the “unreasonable killing” voluntary manslaughter. However, because the trial court in Carter provided the jury with a section 2503(a) heat-of-passion voluntary manslaughter instruction, the court did not determine whether a 2503(a) charge needed to be given. Thus, since Carter overruled Jones only as to the issuance of an instruction on section 2503(b), we have held that we are obligated to apply the rule of Jones where a request for a heat-of-passion instruction has been made. Commonwealth v. Mays, 361 Pa.Super. 554, 523 A.2d 357 (1987).

Appellant herein clearly requested a heat of passion instruction which the trial court erroneously declined to provide. Such an error, however, does not mandate the grant of a new trial. The supreme court stated in Jones that the defendant must suffer prejudice as a result of the court’s failure to provide such an instruction. In determining whether prejudice was established, the court stated the following:

It is clear in this case that appellant did not suffer prejudice from the refusal of such an instruction in view of the jury’s decision to ignore their right to return a verdict of second degree. There is not the slightest reason to believe that the jury would have returned a verdict of voluntary manslaughter out of sympathy or in recognition of factors that they may have deemed mitigating where these factors were not sufficiently compelling to cause them to elect the lesser alternative that was offered.

Id., 457 Pa. at 574, 319 A.2d at 148 (footnote omitted). Similarly, in Commonwealth v. Mays, supra, we found that the trial court’s failure to provide the jury, upon the defendant’s request, with a heat-of-passion voluntary manslaughter instruction in a second degree murder prosecution was not prejudicial where the trial court instructed on first, second, and third degree murder, and the jury returned a verdict of second degree murder.

Though appellant makes a vague reference to “psychological factors” which he asserts could have provided the basis for a heat-of-passion voluntary manslaughter charge, there simply is no evidence on the record to support such a claim. Assuming, however, that Jones and its progeny require the provision of the instruction even in the absence of evidence supporting it, appellant has failed to establish the prejudice required for the grant of a new trial. The trial court instructed the jury on first and third degree murder, and the jury returned a verdict of first degree murder. Just as in Jones and Mays, the jury could have exercised its mercy-dispensing power and returned a verdict of third degree murder. Instead, it found appellant guilty of first degree murder. We are persuaded, therefore, that appellant suffered no prejudice from the trial court’s denial of his request for a charge on section 2503(a) heat-of-passion voluntary manslaughter.

In his next challenge to the trial court’s instructions to the jury, appellant asserts that the court erred by failing to state specifically that diminished capacity was a defense to a finding of guilt under first degree murder. Appellant’s assertion is without merit. As we observed in Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), and Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984), a trial court is under no obligation to accept jury instructions submitted by counsel. If the charge adequately and accurately explains the relevant legal principles applicable to the evidence presented at trial, the instruction is proper.

In Commonwealth v. Zettlemoyer, 500 Pa. 16, 28, 454 A.2d 937, 943 (1982), the supreme court recognized the “extremely limited” nature of the diminished capacity defense. Similarly, in Commonwealth v. Davis, 331 Pa.Super. 59, 64, 479 A.2d 1077, 1080 (1984), we stated that the diminished capacity defense could not operate to reduce the degree of a killing in the absence of a “mental disorder which affects the cognitive functions of deliberation and premeditation so as to preclude an ability to formulate and carry out a plan or design.”

The trial court herein first stated during its charge to the jury on the diminished capacity defense that the psychological testimony presented on behalf of appellant was admitted for the purpose of determining whether appellant had the capacity to form the willingness, deliberateness, and premeditation necessary for first degree murder. Furthermore, the trial court informed the jury that the Commonwealth had the burden of proving that appellant possessed the specific intent to kill, and that if they found that he was incapable of forming the specific intent, they must find appellant not guilty of first degree murder. N.T., 3/22/89, at 1562-1567. The court elaborated upon this statement three times during the diminished capacity instruction. Clearly, the instruction was adequate in light of our explanation of the defense in Davis and arguably more favorable to appellant than the charge deemed acceptable by the supreme court in Commonwealth v. Zettlemoyer, supra. Thus, we find no error in the trial court’s instruction on the diminished capacity defense.

Appellant asserts two final challenges to the trial court’s instructions to the jury, neither of which is persuasive. Appellant contends that the trial court failed to advise the jury that a defendant must be conscious of the intent to kill. A cursory review of the record reveals that on three separate occasions, the court instructed the jury that specific intent requires the defendant to be conscious of his intent to kill. N.T., 3/22/89, at 1559, 1560, 1561. Appellant’s counsel evidently failed to conduct such a review prior to presenting argument on this issue.

Appellant finally contends that the trial court’s instruction on the definition of malice necessary to support third degree murder was erroneous in that it did not comport with Pennsylvania Suggested Standard Criminal Jury Instruction 15.2502C. Once again, appellant’s counsel ignores the portion of the record in which the trial court quotes the precise language of the standard instruction in defining malice in support of third degree murder. N.T., 3/22/89, at 1571. We strongly disapprove of counsel’s misrepresentation of the state of the record.

Appellant’s next general allegation of error relates to the trial court’s decision to disallow evidence offered by him to establish the adverse effects which certain pornographic material allegedly had upon his emotional stability. Specifically, appellant contends that the trial court should have admitted into evidence various pornographic magazines, and video tapes offered for sale at a pornography store which appellant had visited on two or three occasions. The trial court ruled that the exhibits were irrelevant since the defense could not establish that appellant ever purchased any of the material at the store or that the exhibits were on display at the store on the occasions when appellant was present.

The law is well-established that the trial court enjoys broad discretion in admitting or excluding evidence. In Commonwealth v. Meadows, 381 Pa.Super. 354, 366, 553 A.2d 1006, 1102 (1989), we held that “[t]he admission or exclusion of evidence is a matter specifically within the discretion of the trial judge, and we will not reverse his decision absent an abuse of that discretion.” See also Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985) (the admission or exclusion of evidence rests within the sound discretion of the trial court); Commonwealth v. Robinson, 332 Pa.Super. 147, 480 A.2d 1229 (1984) (trial court’s decision to admit or exclude evidence will not be disturbed absent an abuse of discretion). We defined “relevant evidence” in Commonwealth v. Haight, 332 Pa. Super. 269, 481 A.2d 357 (1984), as that which “logically or reasonably tends to prove or disprove a material fact in issue, or to make such a fact more or less probable, or if it affords the basis for a logical or reasonable inference or presumption as to the existence of material fact in issue.” Id., 332 Pa.Super. at 271, 481 A.2d at 359. See also Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976). Since appellant failed to establish that he viewed the pornographic tapes or magazines or that the materials were similar to those which he viewed, we conclude that the trial court acted properly in excluding the exhibits from evidence on the basis of relevance.

Appellant next challenges the sufficiency of the evidence to support the charges of criminal homicide of Melissa Baker and Penny Ansell and the charge of rape of Melissa Baker. Addressing the homicide charges first, we find appellant’s argument to be entirely without merit. The well-established standard in conducting an inquiry into the sufficiency of the evidence is whether “the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish the element of that offense beyond a reasonable doubt.” Commonwealth v. Jermyn, 516 Pa. 460, 466, 533 A.2d 74, 77 (1987), citing Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). Further, a jury may believe all, part, or none of the evidence. Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990).

Viewed in accordance with these standards, the evidence presented in the instant appeal established the following facts. Appellant and a friend, Michael Gionta, picked up Melissa Baker and Penny Ansell at a shopping center on the evening of August 2, 1988, and transported them in appellant’s truck to appellant’s home. The four went upstairs to'appellant’s room to listen to music and after a short time, appellant and Melissa left the room together. Gionta and Penny returned downstairs to the living room. Appellant then appeared on the stairway and informed Penny that Melissa wished to speak with her in the bathroom. Upon hearing a scream from upstairs, Gionta ran up and found Melissa bleeding to death in the bathtub with her throat cut.

Appellant then wrapped the victims’ bodies in garbage bags and carried them to his truck. During this time, Gionta left appellant’s home and while en route to his home, encountered appellant in his truck. Appellant insisted that Gionta get into the truck, and the two travelled to a remote area where appellant dumped the bodies, still wrapped in garbage bags, over the side of a hill. Appellant then drove Gionta home where Gionta immediately informed his parents about the murders. Gionta’s parents took him to the authorities where he informed them of what had transpired that evening. N.T., 3/15/89, at 295-327.

Police arrested appellant at his home at approximately 3:40 a.m. on August 3, 1988. After his arrest, appellant admitted to the police that he picked up the victims that evening and took them to his home. He admitted to wrapping the bodies in garbage bags and removing them to a dump. He also informed police of the location of the murder weapon. N.T., 3/14/89, at 169, 203-205.

Physical evidence introduced during the trial confirmed the information provided by Gionta and appellant. Blood was found in appellant’s truck, in the living room of appellant’s home, on the basement steps, and on a mop and sponge in the basement. Blood consistent with that of Penny Ansell was found on appellant’s right tennis shoe. Blood consistent with both victims was found behind the towel rack on the bathroom wall and on the throw rug on the bathroom floor in appellant’s home. N.T., 3/16/89, at 560-61. Additionally, head hair consistent with that of appellant and inconsistent with that of Gionta was found in Penny Ansell’s hand. During the trial, appellant also presented testimony from Herbert Levit, a psychologist, who testified that appellant admitted to killing Melissa Baker. N.T., 3/20/89 at 1146-1148. The autopsies indicated that Melissa Baker died of stab wounds to her chest and transverse wounds to her neck, and Penny Ansell died of incised wounds to her neck. N.T., 3/15/89, at 398, 407.

Viewing the evidence in accordance with our standard for testing the sufficiency of evidence, we concur with the trial court’s conclusion that there is overwhelming evidence that appellant killed Melissa Baker and Penny Ansell. Appellant’s argument is that the lack of direct eyewitness evidence that he murdered both victims renders the mountain of circumstantial evidence of his guilt insufficient. This argument ignores the law and is totally facetious. The law in Pennsylvania has long recognized that circumstantial evidence may be sufficient to uphold a conviction where the inferences arising therefrom establish facts beyond a reasonable doubt. Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978); Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976). The massive amount of circumstantial evidence in this case is sufficient to support appellant’s conviction of first degree murder.

Appellant also challenges the sufficiency of the evidence to support the charge of rape of Melissa Baker. Appellant contends that there is insufficient evidence that his sexual relations with Melissa Baker were committed by “forcible compulsion.” We are constrained to agree. Section 3121 of the Pennsylvania Crimes Code defines rape as follows: “A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse: (1) by forcible compulsion; ...” 18 Pa.C.S. § 3121.

The Commonwealth did produce sufficient evidence that appellant engaged in sexual intercourse with Melissa Baker in that he admitted this in his statement to Detective Manning. N.T., 3/14/89, at 204. He also told Dr. Levit, a psychologist who testified on his behalf, that he had sexual relations with Melissa. N.T., 3/20/89, at 1147. Furthermore, appellant’s admissions were confirmed by physical evidence produced by the Commonwealth. The coroner testified that seminal fluid consistent with appellant’s fluid was found on the vaginal swabs taken from Melissa Baker and that lacerations, contusions and a ruptured hymen were found during a vaginal examination of her. N.T., 3/15/89, at 375.

While the evidence presented by the Commonwealth clearly established that it was appellant who engaged in sexual relations with Melissa Baker on the night she was murdered, the evidence was insufficient to establish that he did so by “forcible compulsion.” In its effort to establish the element of force, the Commonwealth relied exclusively on the evidence of vaginal, neck and facial injuries suffered by Melissa. The coroner testified that the autopsy revealed vaginal lacerations and contusions and a ruptured hymen. N.T., 3/18/89, at 375. The injuries to Melissa’s face and neck consisted of several minor facial contusions and linear cuts on her neck consistent with the murder weapon found at the scene. Id., at 372-75, 399-403.

The evidence of the vaginal injuries, however, was inconclusive in determining whether forcible rape occurred. Dr. Perper testified that the injuries were as consistent with a first consensual sexual experience as with a forcible rape. Id., at 397-98. Similarly, the evidence of the victim’s facial and neck injuries could not establish the element of force conclusively in view of the fact that the Commonwealth could not establish whether the injuries were inflicted before sexual relations occurred, or at the time the murder took place. The coroner testified only that they occurred prior to Melissa’s death. Id., at 375.

In ruling that the evidence supporting the rape conviction was sufficient, the trial court emphasized the victim’s vaginal and facial injuries. Citing Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978), the court stated, “lacerations in the area of the vagina and injury to the mouth have been held sufficient to show forcible compulsion.” Trial court opinion at 73. Williams, however, is clearly distinguishable from the case at bar in that it involved an eight-year-old victim who was incapable of consenting to the unspeakable acts inflicted upon her. The evidence established that the injuries to her mouth occurred during the sexual assault, as she was asphyxiated by penile choking. Thus, the evidence in Williams of forcible compulsion was overwhelming.

In contrast, the uncontroverted evidence in the case herein established that the victim was an adolescent girl who willingly accompanied an eighteen-year-old boy to his bedroom where she was observed kissing and embracing him. She also was observed voluntarily leaving the bedroom with him while holding his hand. She ultimately wound up in his mother’s bedroom where she engaged in sexual relations with him. She was murdered brutally after the sexual act occurred. She suffered minor abrasions to her face and scratch marks on her neck prior to her death but the evidence is unclear as to whether the injuries were inflicted prior to sexual relations or when she was murdered. There is no evidence of forcible rape other than the vaginal injuries which the coroner testified were as consistent with consensual sex as with forcible rape. The injuries suffered by the child in Williams were not consistent with consensual sexual relations.

The trial court also relied upon the differences in the parties’ age and size as well as the atmosphere and physical setting in determining that the prosecution’s evidence established forcible compulsion. Once again, the cases cited by the trial court in support of its conclusion are inapposite. In Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), the victim was an eight-year-old child who was raped by a twenty-year-old neighbor in an abandoned neighborhood house. The court held that an eight-year-old child under those coercive circumstances was incapable of voluntarily consenting to sexual relations. The victim in another case cited by the trial court, Commonwealth v. Dorman, 377 Pa.Super. 419, 547 A.2d 757 (1988), was older, thirteen years of age, but was raped by her thirty-eight-year old uncle. In Dorman, there was no evidence of consensual intimate contact prior to sexual relations.

Finally, in Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985), the last case cited by the trial court and the only one relied upon by the Commonwealth, the victim was an adult but the evidence established that she was abducted from a parking lot by a stranger who subsequently raped her, bruised her rectum, scratched her over her entire body and tore her brassiere before strangling her. Again, there was no evidence of consensual intimate contact between the victim and the defendant prior to the rape.

The elements which distinguish all of the cases relied upon by the Commonwealth and the trial court and the facts of the case before us are the evidence of consensual and intimate contact between the victim and appellant prior to sexual relations and the absence of any reliable evidence of force. The inconclusive physical evidence presented herein coupled with the eyewitness observation of the intimate nature of the contact between the victim and appellant prior to sexual relations lead us to conclude that the evidence presented by the Commonwealth was insufficient to prove beyond a reasonable doubt that appellant committed rape by forcible compulsion. This does not mean we have determined that sexual relations were consensual. It means merely that the evidence does not establish the element of forcible compulsion under the circumstances of this case.

Appellant next contends that the prosecuting attorney unfairly prejudiced him during his closing remarks to the jury by commenting improperly on his right to remain silent, by making reference to two tests which were not administered to appellant, and in questioning the scientific basis of the evidence supporting appellant’s claim of diminished capacity. Upon review of the record of the closing statement by the prosecution, we find appellant’s arguments to be without merit.

Appellant first contends that the prosecuting attorney improperly commented upon appellant’s decision to exercise his fifth amendment rights by pointing out the inconsistency between appellant’s behavior with the first individuals to speak with him following his arrest and with what he told the psychologist who examined him six months later. During trial, appellant presented psychological testimony that he was in a dissociative state of mind when the murders were committed. The prosecuting attorney merely argued that if appellant truly had been in a dissociative state when he committed the murders, his calm, controlled, and cooperative behavior during discussions with the police within hours of the killings was inconsistent with his description of his state of mind at that time.

As the supreme court observed in Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980), the prosecuting attorney must have reasonable latitude in presenting a case to the jury and must be permitted to present his or her argument with logical force and vigor. Furthermore, if the prosecutor’s remarks were improper in any way, their prejudicial effect must be evaluated in the context in which they occurred. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Crittenton, 326 Pa. 25, 191 A. 358 (1937).

Evaluating the comments by the prosecutor herein in accordance with the above-stated principles, we conclude that the remarks did not infringe upon appellant’s right to remain silent. Contrary to appellant’s assertion, the prosecutor did not argue that appellant’s silence following arrest was inconsistent with the description he provided to the psychologists of his state of mind at that time. The reference was to appellant’s behavior during the period in which he had waived his right to remain silent and was discussing, in great detail, the events surrounding the commission of the murders. There is an obvious distinction between a reference to a calm but expressive demeanor and silence. Since the prosecutor’s comments did not constitute an unconstitutional reference to appellant’s post-arrest silence, it is unnecessary to engage in the four-pronged evaluation set forth in Commonwealth v. Gbur, 327 Pa.Super. 18, 474 A.2d 1151 (1984), as urged by appellant. We find that the prosecutor’s remarks regarding appellant’s post-arrest behavior were not improper.

Likewise, we view the two remaining claims by appellant regarding the prosecution’s closing remarks as unpersuasive. The reference to the use of hypnosis and sodium amytal in the psychologists’ evaluation of appellant was not improper in that it resulted from proper cross-examination in which the prosecutor challenged the reliability of the psychologists’ conclusion that appellant was in a dissociative state of mind when he committed the murders. The fact that the tests are not admissible as evidence in a court of law does not invalidate their use in conducting a psychological evaluation of a patient. Similarly, the reference to the tenuous relationship of pornography, heavy metal music, and satanism to appellant’s conduct in committing the offenses was proper. Contrary to appellant’s assertion, the defense was permitted to present testimony on the subliminal influence of these factors on appellant’s behavior through the testimony of Wilson Bryan Key. N.T., 3/20/89, at 1237-1274, 1297-1311. In his closing remarks, the prosecutor discussed the defense’s failure to establish a causal relationship between Key’s theory and appellant’s conduct. As such, his remarks were fair comment on appellant’s defense.

Appellant finally contends that the trial court erred by consistently displaying hostility toward the defense in the presence of the jury. We strongly disagree. A review of the record reveals that Orlando N. Prosperi, one of appellant’s trial attorneys, engaged in a course of improper and extremely irritating conduct throughout the proceedings. During voir dire questioning, Attorney Prosperi repeatedly deviated from the approved questions in violation of the court’s order to obtain the court’s permission before asking supplemental questions. He also refused to accept the court’s rulings on Commonwealth objections to his questions and repeatedly engaged in extended arguments with the court over its rulings.

During trial, Mr. Prosperi persisted in asking questions to which objections had been made and sustained, remarking sarcastically at one point that “a lack of memory” caused him to forget that he had asked essentially the same, objectionable question several times. N.T., 3/19/89, at 1019-1022. This exchange prompted the trial court’s retort regarding the advisability of consulting with his younger co-counsel, which appellant now finds objectionable. It was Mr. Prosperi, not the court, as appellant claims, who raised the issue of his own infirmity before the jury. Indeed, the trial court exercised tremendous restraint in its dealings with an extremely disruptive presence in the courtroom. Nearly all admonishments to Attorney Prosperi were made at sidebar and appear to be calm and reflective.

We agree with one observation by appellant concerning the record of the trial proceeding. It does indeed “speak for itself.” Appellant’s brief at 48. However, every instance of hostility and ridicule identified in the record was precipitated by Mr. Prosperi, without the court’s involvement. We conclude that due to the trial court’s valiant efforts to maintain order, however, appellant received a fair trial despite his counsel’s improper behavior.

Appellant’s contention regarding the order of closing presentations on the penalty phase of the proceedings is moot in that appellant received a life sentence.

Judgment of sentence on the two counts of criminal homicide and one count of statutory rape affirmed. Judgment of sentence on the one count of rape vacated. We decline to remand in light of the fact that the sentence on the rape was identical and concurrent to the sentence on the statutory rape. Thus, vacating the sentence on the rape has no effect on the sentences on the remaining counts. Appellant’s sentence remains at two consecutive life sentences followed by a consecutive term of imprisonment of five to ten years.

POPOVICH, J., files a concurring opinion.

POPOVICH, Judge,

concurring:

While I find much of my distinguished colleague’s opinion thorough and correct in application of the law, I can concur only in the result that defendant’s inculpatory statements were properly admissible under the Mosley decision. See ante, at pp. 4-7. My concern lies with the Majority’s characterization of the holding in Mosley in a manner which distracts the inquiry from where it rightfully belongs, viz., whether the defendant’s “ ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Owing to the need for particular clarity in Fifth Amendment jurisprudence, disturbing in the Majority opinion are the following statements:

In Mosley, the defendant stated that he did not want to talk about his involvement in the offenses that the police were discussing with him. He cut off questioning absolutely. The second interrogation related to a different crime, which the Court considered significant due to the fact that defendant absolutely invoked his right to remain silent as to those first offenses.
In the present case, appellant did not absolutely invoke his right to remain silent.

Ante, at p. 6 (emphasis added).

The Majority cannot be faulted for their reliance on the “separateness” of the subject matters of questioning. To be sure, the significance of this “separateness” to the Mosley decision is not simply a matter of literary happenstance, but rather fits neatly into the test offered by the Court to preserve a defendant’s right to cut off questioning. Where the police, as in Mosley, question the arrestee about a crime that he has not previously declined to discuss, this can be viewed as less like an attempt to wear down the arrestee and to persuade him to change his mind about confessing. But to conclude further that Mosley invoked “absolutely” his right to silence as to the robberies—but not the murder—appears an unwarranted extension of the Court’s holding.

Instantly, while the Majority ascribes particular importance to the circumstances obtaining during defendant’s invocation of his right to silence, namely, that it was the defendant who had suggested to the police that he might wish to speak about certain matters at a later date, this has no talisman-like quality. The police might still coerce an arrestee to comply with his or her implication that a statement will be forthcoming in violation of the Fifth Amendment. The contrary would seem equally true. If a defendant states unequivocally that he wishes to remain silent, the police may still attempt to resume questioning subsequently so long as this can be seen as nothing more than affording defendant the opportunity to make a voluntary confession as he clearly has a right to do. See Mosley, 423 U.S. at 109, 96 S.Ct. at 329 (White, J., concurring) (to deny defendant the right to make a voluntary confession would be to entrap him in his own privilege). To focus exclusively on the circumstances of defendant’s invocation of the right, and whether it was “absolute,” distracts the inquiry, for the question is not whether the invocation was “absolute” in some abstract sense, but rather whether through the resumption of questioning, defendant’s rights were scrupulously honored.

The principles behind Mosley suggest that the judicial inquiry is not so narrowly confined, nor limited, as the Majority suggests, to an exercise in absolutes. Rather, judicial inquiry in each instance should focus on the circumstances attending the defendant’s invocation of his or her right to silence, as well as the circumstances attending any further attempt at questioning. Hence, the test should ask whether the official purpose of resuming questioning was to entice the arrestee to abandon his right to remain silent, or simply to find out whether he or she had a change of mind. Only then can it be concluded whether, in fact, the defendant’s “ ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Mosley, 423 U.S. at 104, 96 S.Ct. at 326; see also Vujosevic v. Rafferty, 844 F.2d 1023 (3rd Cir. 1988).

Instantly, as Judge Hester properly concludes, the facts clearly indicate that questioning was resumed merely as an effort to establish whether the defendant had changed his mind. The circumstances attending defendant’s invocation of his right to silence suggested that defendant might desire to waive his right at a later date. This can be seen as bolstering the claim that defendant’s subsequent statement was derived absent official coercion. But most importantly, as a whole the police tactics attending the subsequent attempt at questioning were irreproachable and can be seen as nothing more than affording defendant the opportunity to make a voluntary confession. Thus, while the case sub judice does not technically fit the Mosley factual paradigm, i. e., the suspect herein involved was questioned about the same offense after invocation of his right to silence, the court can and does remain faithful to the principle and spirit of both the Mosley and Miranda decisions in sanctioning the resumption of questioning on the instant facts. Any reference to the possibility that a defendant might “absolutely” invoke his or her right to silence is unnecessary to the Majority’s position and serves to send improper signals to our law enforcement officers.

Thus, I concur in the result only.

      . Nonmajority decisions of the supreme court are not binding. Commonwealth v. Davenport, 462 Pa. 543, n. 3, 342 A.2d 67, 75 n. 3 (1975); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971).

      . We note that appellant moved for a directed verdict, which the trial court treated as a demurrer. See Pa.R.Crim.P. 1124. We will treat appellant's argument in the same fashion.


text:
    585 A.2d 16
    GOULD, INC. v. CONTINENTAL CASUALTY COMPANY, H.S. Weavers (Underwriting) Agencies, Ltd., Walbrook Insurance Company, Ltd., “Winterthur” Swiss Insurance Co., Mutual Reinsurance Company, Ltd., St. Katherine Insurance Co., Ltd., London & Edinburgh General Reinsurance Company, Ltd., Bermuda Fire & Marine Insurance Company, Ltd., Yasuda Fire & Marine Insurance Company, Ltd., Turegum Insurance Company, Bellefont Insurance Company, C.E. Heath & Co. (Agencies) Ltd., North Atlantic Insurance Co. Ltd., Leslie & Godwin Agencies, Ltd., Mentor Insurance Company (U.K.) Limited, Mentor Underwriting Agents (U.K.) Limited, C.T. Bowring & Co., (Insurance), Ltd., Dominion Insurance Co., Ltd., Slater, Walker Insurance Company, Limited, Syndicate No. 417, Syndicate No. 772, Syndicate No. 943, Syndicate No. 989, Syndicate No. 279, Syndicate No. 618, Syndicate No. 278, Syndicate No. 219, Syndicate No. 190, Syndicate No. 199, Syndicate No. 604, Syndicate No. 235 and National Union Fire Insurance Company of Pittsburgh, Pa. v. PENNSYLVANIA MANUFACTURERS INSURANCE COMPANY, Travelers Insurance Company, the Aetna Casualty Company, Standard Fire Insurance Co., St. Paul Fire & Marine Insurance Company, Stonewall Insurance Co., First State Insurance Company, Midland Insurance Company, Prudential Insurance Company, Firemen’s Fund Insurance Co., Pine Pop Insurance Company. Appeal of NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1990.
    Filed Jan. 8, 1991.

      B. Alan Dash, Philadelphia, for appellant.
    Wayne A. Schaible, Philadelphia, for Travelers Ins., appellee.
    Before McEWEN, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

Gould, Inc. (“Gould”) brought this action against appellant National Union Fire Insurance Company of Pittsburgh (National Union) and several other insurance companies, seeking indemnification for substantial sums paid by Gould in settlement of claims of 80 former employees of Gould and its predecessor, Bers and Company, Inc. (Bers). The employees had suffered injuries due to exposure to heavy metals, lead and toxic chemicals during the course of their employment in a lead smelting facility operated by Bers from 1946 to 1969 and Gould from 1969 to 1979. From the period of January 1, 1978 to March 1, 1979, National Union insured Gould to the extent of 20% second layer excess employer liability for bodily injury occurring to Gould’s employees. Because the limits of the underlying general liability policy were exhausted, Gould has demanded indemnification from National Union and other insurers providing umbrella coverage for the remaining amount paid by Gould in settlement of the suits. National Union has denied coverage of any part of the amount paid in settlement of the claims.

National Union joined appellee Travelers Insurance Company (Travelers) as an additional defendant pursuant to Pa.R.C.P. 2252(a) on the basis that Travelers also provided insurance to Bers or Gould sometime during the 33 year period in question. National Union therefore claims entitlement to contribution from Travelers for amounts National Union would be required to pay. Travelers filed preliminary objections, asserting inter alia that all issues regarding outstanding coverage between Travelers and Bers and Gould were settled in exchange for a $600,000 payment made by Travelers to Gould for indemnification of the lead poisoning claims. National Union brings this appeal from an order granting appellee Travelers Insurance Company’s preliminary objection and dismissing the Complaint of National Union against Travelers. We affirm.

Where no issues of fact are raised, the court shall dispose of the preliminary objections as a matter of law on the basis of the pleadings alone. Matter of D.L.S., 278 Pa.Super. 446, 420 A.2d 625 (1980). In ruling on Traveler’s preliminary objections, the trial court stated:

... [T]he Court would note that the third issue raised by Travelers does warrant the dismissal of the complaint against it. Specifically, Gould, the plaintiff in the instant matter, has settled earlier with Travelers and at that time had agreed that should any of Gould’s insurers obtain a judgment for contribution or indemnity for any amount, that Gould would credit Travelers for any amount as to which Travelers would otherwise be responsible, whether that amount was less than, equal to or more than the $600,000 that Travelers paid to Gould initially.
Under those circumstances, the Court is satisfied, whatever the outcome of this case, Travelers would have no responsibility and there could be no prejudice suffered by any of the other insurers, who would receive credit in that regard.
Under those circumstances, there would be no reason to add Travelers to this case and for that reason I would grant the preliminary objections filed by Travelers.

Bench Opinion, Dec. 21, 1989 at 4-5.

The version of Pennsylvania Rule of Civil Procedure 2252(a) which was in effect when the trial court ruled on Travelers’ preliminary objection provides:

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.

Pa.R.C.P. 2252(a). Rule 2252(a) is to be “ ‘broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of the transaction or occurrence on which the plaintiffs cause of action is based.’ ” Somers v. Gross, 393 Pa.Super. 509, 574 A.2d 1056, 1058 (1990), citing Garrett Electronics Corp. v. Kampel Enterprises, Inc., 382 Pa.Super. 352, 555 A.2d 216, 217 (1989). The rule has been interpreted to permit the joinder of an additional defendant where it is established:

(1) that the additional defendant is solely liable to the plaintiff; (2) that the additional defendant is liable over to the adjoining party on the cause of action alleged; (3) that the additional defendant is jointly or severally liable with the joining party on the cause of action alleged by the plaintiff; or (4) that the additional defendant is liable to the joining party on any cause of action asserted by the joining party which arises out of the same transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.

Svetz For Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986), allocatur denied 515 Pa. 584, 527 A.2d 544.

Gould’s complaint against National Union is based on a theory of contractual liability arising out of the insurance policy between Gould and National Union under which National Union agreed to insure Gould for 20% of the second excess layer of coverage. We therefore agree with Travelers that joinder under Rule 2252(a) would be improper on the basis that Travelers is solely liable or jointly and severally liable along with National Union to Gould, or liable over to National Union on the cause of action in contract, as Travelers was not a party to the insurance contract between Gould and National Union. A contract cannot legally bind a person or entity which is not a party to the contract. Matter of Estate of Barilla, 369 Pa.Super. 213, 535 A.2d 125 (1987). Further, the release agreement between Gould and Travelers discharges Travelers

from all actions, causes of action, suits, debts, accounts, reckonings, covenants, contracts, agreements, claims and demands whatsoever, whether at law or in equity, that Gould and Bers or either or them now have or ever had, or that they or either of them can, shall or may have against PMA and Travelers, their successors, subsidiaries and affiliates or any of their officers, directors or employees for insurance coverage of the claims which were or could have been asserted against Gould and Bers, or either of them in the Suits [brought by the former employees].

R.R. at 149a. Thus, in order for joinder of Travelers to be proper under Rule 2252(a), Travelers must be liable to National Union on some cause of action which National Union has against Travelers arising out of the same transactions or occurrences upon which Gould’s cause of action is based. See Pa.R.C.P. 2252(a).

National Union argues that joinder of Travelers is proper because National Union may be entitled to contribution from Travelers because National Union is responsible only for excess coverage whereas Travelers was a primary insurance carrier for Gould and National Union, and also that the absence of Travelers from this suit makes it impossible for National Union to take advantage of the settlement payment made by Travelers. Travelers responds that joinder of Travelers is improper because as a matter of law, Travelers is not “contributorily” liable to National Union in this action. We agree.

The instant action is based on National Union’s liability to Gould under the insurance contract between National Union and Gould. The terms of the insurance policy will determine the amount of coverage that National Union is obligated to pay. In the event that the policy contains an “other insurance” or “pro rata” clause, and the coverage for which National Union is being held liable is covered by the insurance provided by Travelers, National Union will be entitled to prorate the amount of coverage. See Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858 (1952). Regardless of whether the other insurers have paid their obligated sums, National Union cannot be made to pay coverage for which the other insurers are liable or any other amount, unless National Union agreed to such payment in its insurance policy. National Union’s right to prorate any applicable policy limits and to receive credit for amounts paid by Travelers does not depend upon the joinder of Travelers in this suit.

The “other insurance” clause does not give National Union a right of contribution against Travelers. Travelers cites Cooper Industries, Inc. v. Aetna Casualty, et al, Vol. 24, No. 22 Mercer County L.J. 163 (1989) in support of its position that National Union has no right of contribution against another co-insurer, but instead has the right to prorate its coverage based on the terms of its own policy, depending upon the amount of co-insurance. Although we are not bound by Cooper Industries, we find the case to be instructive, as the court in Cooper Industries was faced with the identical question as the issue before us. The court held that the proration of the defendant-insurers liability would not be impaired by the dismissal of those insurers who had settled with the plaintiff. Id. at 166. The court held that no insurer could be held liable for more than its pro rata share and no right of contribution against a co-insurer could arise, noting that “the applicable limits and pro rata shares pertaining to the policies issued by [the settling insurers] will be examined and their proportionate share of liability determined, even if they are no longer parties to the action.” Id. We find the reasoning set forth in Cooper Industries to be persuasive, and likewise con-elude that the trial court did not err in dismissing Travelers from this action.

Order affirmed.