author: TAMILIA, Judge:

text:
    525 A.2d 1242
    Laurel NICHOLS v. Richard HORN, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 20, 1987.
    Filed May 12, 1987.

      Marc S. Drier, Pittsburgh, for appellant.
    Dudley N. Anderson, Williamsport, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

On May 14, 1979, a child was born to appellee, Laurel Nichols. She instituted an action for support on September 19,1985 alleging appellant, Richard Horn, was the father of the child. Appellant filed an answer and new matter raising the statute of limitations as an affirmative defense and on January 24,1986, moved for summary judgment. Appellee, on January 28, 1986, filed a praecipe to discontinue and the court, by Order dated January 29, 1986, dismissed the petition without prejudice. Appellee then filed a new petition on January 30, 1986. Appellant filed a motion to strike the discontinuance pursuant to Pa.R.C.P. 229(c). The court, by Order, denied the motion and this appeal followed.

The particular circumstance which prompted appellee’s action was the expansion of the statute of limitations for paternity actions from six to eighteen years. The statute in effect at the time appellee filed her original action was 42 Pa.C.S.A. § 6704(e) which provided:

(e) Limitation of actions. — All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgement by the reputed father.

23 Pa.C.S.A. Chapter 43 was enacted by Act 1985, October 30, P.L. 264, No. 66, § 1. This repealed the statute of limitations established under 42 Pa.C.S.A. § 6704(e) and provided for an expanded limitations period. The statute became effective on January 28, 1986 and provided in pertinent part:

23 Pa.C.S.A. § 4343. Paternity
(b) Limitation of actions. — An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.

The court, in denying appellant’s motion to strike the discontinuance, reasoned that the new statute of limitations should apply to all cases not finally decided on its effective date. In so holding, the court rejected appellant’s argument that application of the eighteen year statute of limitations deprives him of a remedy he would have under the prior statute. The court concluded that a remedy refers to a right of recovery and not to a defense and also noted that public policy in paternity actions supports allowing the action to go forward rather than be terminated by a procedural rule.

On appeal, appellant maintains that the court abused its discretion in refusing to strike the discontinuance. He asserts he is sufficiently prejudiced, by the resultant loss of the summary judgment he would have been entitled to under the six-year statute of limitation, to meet the requirements of Pa.R.C.P. 229(c).

We agree with appellant that the court acted improperly in refusing to strike the discontinuance.

Pa.R.C.P. 229(c) provides:

(c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice.

We think prejudice has been shown where, as here, a motion for summary judgment has been filed and the party seeking to strike the discontinuance would be entitled to summary judgment if the discontinuance was not allowed. Under these circumstances, the court abused its discretion in refusing to find prejudice. See Innovate Inc. v. United Parcel Service, 275 Pa.Super. 276, 418 A.2d 720 (1980).

We also find support for our holding in the recently filed decision of the Superior Court en banc in Paulussen v. Herion, 359 Pa.Super. 520, 519 A.2d 473 (1986) (Concurring Opinion, Brosky, J.; Concurring Opinion, Kelly, J.).

In Paulussen, a petition in paternity and child support was filed in February of 1980, nearly eight years after the birth of the child. The statute of limitations under 42 Pa.C.S.A. § 6704(e) was raised as an affirmative defense and a motion for summary judgment filed.

Summary judgment was granted and a subsequent challenge to the constitutionality of the statute was brought, ultimately reaching the United States Supreme Court. Before a ruling was made, the limitations period was expanded by enactment of 23 Pa.C.S.A. § 4343(b) and the Supreme Court remanded to this Court for a determination of the new statute’s effect upon the old. (Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d. 521 (1986)).

Upon remand, this Court, relying on the decisions in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982); Commonwealth ex rel. Pugh v. Callahan, 312 Pa.Super. 246, 458 A.2d 607 (1983) and Hatfield v. Hazelbaker, 306 Pa.Super. 555, 452 A.2d 863 (1982), held that “the statute in force when the complaint is filed is controlling as to timeliness,” Paulussen, supra, and affirmed the summary judgment. Also in Clark v. Jeter, 358 Pa.Super. 550, 518 A.2d 276 (1986), we have held that if the action would have been barred under the old statute of limitations (six years), new life cannot be breathed into the barred action retroactively, by enactment of a new longer statute of limitations (eighteen years). Thus, in this action, the matter was barred by the six-year statute of limitations and discontinuance of the present action and reinsituting the action under the eighteen-year statute (if ultimately approved) would be of no avail. Also see Grassmyer v. Coleman, 345 Pa.Super. 358, 498 A.2d 441 (1985) where we thoroughly reviewed the history of statutes of limitations as they relate to paternity actions.

Finally, we think to refuse to strike a discontinuance in situations such as this would enable a party who had instituted an action, when confronted with a successful affirmative defense, to terminate the action without allowing the defendant to end any future litigation of the matter by having a final judgment entered. It is conceivable that the party seeking to discontinue could then wait, hoping that the legislature would, at some time in the future, expand the statute of limitations and then institute another action. We do not think this is desirable as it prevents finality and continually exposes the defendant to potential litigation. Statutes of limitation are designed to alleviate such a circumstance, and to prevent application of a statute by allowing a discontinuance would frustrate the purpose of the statute.

Implicit in our decision is the determination that the public policy argument put forth by the lower court does not rise to such a level as to overcome our objections to allowing the discontinuance to stand. Although the interests of the child are important, we agree with the court in Paulussen, where it stated:

... there is no persuasive theory available to justify the application of a statute of limitations effective in 1986, to an action commenced in 1980. The court in Astemborski, supra[] declined to address the wisdom of a legislative scheme which “prevented forever [a child] from asserting a successful claim for support.” Id., 502 Pa. at 417-18, 466 A.2d at 1022, simply because its mother neglected to protect its rights. We are in much the same position.

Paulussen, 359 Pa.Superior Ct. at 524, 519 A.2d at 475.

The public policy considerations in matters such as these cut several ways. Unquestionably, the state has an important interest in encouraging, if not compelling, mothers to pursue support actions for children born out of wedlock. The burden of support of such children weighs heavily on soceity and the father, if possible, should be made to assume at least some part of that burden. The mother has the responsibility, with the father to maintain the child and in the majority of the cases, she assumes the burden of disproportionately or is forced to turn to the state for assistance. Finally, and perhaps above all, the child has a right to be maintained and supported by both parents. In a world that is at best hostile and overwhelming to the child born out of wedlock from the social, cultural and psychological aspects, at least in the economic, there should be relief. Recognizing these considerations, the United States Supreme Court, in Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed. 770 (1982), has held that a one-year statute of limitations is inadequate to protect these interests in striking down the Texas statute and held soon thereafter, in Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed. 372 (1983), that a two-year statute was no better.

The prejudice and injustice inflicted upon the child born out of wedlock has been substantially stripped away in recent years. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) which held that a putative father has a constitutionally protected right to participate in the support, maintenance and upbringing of his minor child; Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) where the statutory classification (illegitimacy) imposes a civil disability, and there is no legitimate state interest involved, the Equal Protection Clause requies it be struck down; Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) state may not grant a judicially enforceable right to support of children by their natural father and at the same time deny it to illegitimate children; Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) held that a state could not limit intestate inheritance of a child born out of wedlock to cases where the father acknowledged paternity, however, Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) provides that paternity must have been established before the father’s death to permit intestate inheritance because of important state interests.

Due process requires that to the degree possible, children born out of wedlock be given treatment equal to that of children born during marriage. Having said that, other considerations that have a substantial bearing on the rights of the father and perhaps on his family stability must be weighed. It is not infrequently the case that the mother of the out of wedlock child wants nothing to do with the father and wishes not to be involved with correlary rights of visitation, partial custody and a legal say in the child’s upbringing. If she marries, that contact could have a deletorious affect on that relationship and undermine a sound relationship, perhaps even adoptive possibilities with the stepfather. The putative father has the right, after a reasonable period of time has passed without a claim of paternity against him, to the expectation that commitments to family are not going to be unsettled by unforeseen and unanticipated financial burdens. The harm to the father’s family could well exceed the benefit to the child after 8, 10 or 15 years. See Grassmeyer, supra. The man who sires children during marriage has committed himself to their rearing. Only by tortured logic can we compel the same result, without the commitment, on the putative father. The unfortunate consequences of this timeless problem cannot be eliminated entirely by legislation and equal protection rulings by the courts.

Formerly, an important consideration that mitigated against an extended window of legal susceptability, was the difficulty of proof as time passed. This has been considerably reduced with the advent of sophisticated blood and tissue matching procedures such as the Homologous Lucocyte Antigen test. In the foreseeable future, it is likely that techniques will be capable of establishing, with certainty, the identity of the father instead of indicating the probability of paternity or exclusion of a man as the child’s father. Thus the matter of proof is less a consideration than the need to have finality as to liability and reasonable expectation that a life and lives will not be badly disrupted after a certain time.

In light of the discussion set forth above, the Order denying appellant’s motion to strike the discontinuance is reversed. The motion is granted and the court directed to rule on the motion for summary judgment.

WIEAND, J. concurs in the result.

      . The appellant filed a second action following the enactment of the new statute of limitations, but the court in Paulussen held that matter not to be before it as no adjudication had been made below.

      . Astemborski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983). In Astemborski, the Pennsylvania Supreme Court upheld the constitutionality of 42 Pa.C.S.A. § 6704(e).


source: Caselaw Access Project

author: M0NTEMUR0, Judge:

license: Public Domain

text:
    526 A.2d 359
    Concetta GALLO v. YAMAHA MOTOR CORPORATION, U.S.A., Bruce Ott, Steven J. Polansky and Pocono West, Inc., A Pennsylvania Corporation and Yamulla Trucking, Inc. and Yamulla Enterprises, Inc., t/a Lake Harmony Estates. Appeal of YAMULLA TRUCKING, INC. and Yamulla Enterprises, Inc. t/a Lake Harmony Estates.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1986.
    Filed March 26, 1987.
    Reargument Denied June 8, 1987.

      Robert E. Simpson, Jr., Easton, for appellants.
    James C. Hogan, Easton, for Gallo, appellee.
    Barbara L. Hallenbach, Easton, for Yamaha Motor Corp., appellee.
    Before CAVANAUGH, McEWEN and MONTEMURO, JJ.
   M0NTEMUR0, Judge:

Appellant challenges the denial of its post-trial motions by the Northampton Court of Common Pleas. Because the trial court committed several errors of consequence, we reverse and remand for a new trial.

This case arises from a January 28, 1978 collision between an automobile and the snowmobile upon which appellee Concetta Gallo was riding as a passenger. Ms. Gallo filed an action against appellees Bruce Ott, driver of the snowmobile, Steven J. Polansky, driver of the automobile, and Yamaha Motor Corporation, U.S.A., manufacturer of the snowmobile. Yamaha joined appellants Yamulla Trucking, Inc. and Yamulla Enterprises, Inc., both trading as Lake Harmony Estates (Lake Harmony). Lake Harmony owned the road on which the collision occurred. The road, which was covered with snow and ice at the time of the mishap, meanders through a residential resort that Lake Harmony had developed in the Pocono Region of Carbon County. Ms. Gallo alleged in her first amended complaint that Mr. Polansky and Mr. Ott had operated their respective vehicles negligently. She further alleged that Yamaha had defectively designed the fateful snowmobile. In its complaint joining Lake Harmony as an additional defendant, however, Yamaha charged that Lake Harmony, as a landowner, had caused Ms. Gallo’s injuries by negligently failing to keep its road safe for automobile and snowmobile traffic.

The ten day trial of these claims began on February 25, 1985. At its conclusion, after the jury had received the court’s instruction but before it retired to deliberate, the court ruled on the parties’ suggested points for charge. Three of these rulings concern us here. First, the court denied Lake Harmony’s request for an instruction on the Recreation Use of Land and Water Act, 68 P.S. § 477-1 et seq. Lake Harmony had asserted in new matter that the Act immunized Lake Harmony from all liability for Ms. Gallo’s injuries. Second, the court refused to caution the jury expressly against awarding damages for delay. Lake Harmony had requested the court pursuant to Pa. R.C.P. 238(d) to instruct the jury not to award Ms. Gallo any damages for delay “because this is a matter for the court.” Third, the court refused to instruct the jury not to compensate Ms. Gallo for those losses covered by the now-repealed Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., which was in effect at the time of Ms. Gallo’s injury. The court had ruled immediately prior to trial that it would admit evidence of any medical expenses or lost wages Ms. Gallo suffered as a result of the accident. Several of the defendants had argued that the No-fault Act precluded recovery in tort of any medical expenses or lost wages that fell within the required limits of No-fault coverage. In deciding to admit the evidence, the court reserved for later disposition the issue of whether the No-fault Act applies to this case. The court indicated that, if required, it would mold the verdict to remove any amounts recoverable under No-fault.

The jury returned with a special verdict on March 8, 1985. The verdict absolved Mr. Polansky and Yamaha of all liability to Ms. Gallo and attributed negligence 70% to Mr. Ott, 25% to Lake Harmony and 5% to Ms. Gallo. The jury awarded damages of $80,000 for medical expenses, $248,000 for lost earnings and $325,000 for such non-economic injuries as pain, suffering, disfigurement and embarrassment. Following a hearing on March 29, 1985, the court added delay damages of $352,620 and then reduced the total verdict to $953,339 to reflect Ms. Gallo’s contributory negligence. Lake Harmony filed a timely motion for post-trial relief in which it asked the court to grant judgment n.o.v. or a new trial or to mold the verdict downward. The court en banc denied the motion. Lake Harmony’s timely appeal followed entry of judgment on April 7, 1986.

We need address only three of the six issues that Lake Harmony presents:

I. Whether the trial court should have instructed the jury on the applicability of the Recreation Use of Land and Water Act, even though Lake Harmony did not invite the public onto its land.

II. Whether the trial court, when requested to do so, should have cautioned the jury expressly against awarding damages for delay.

III. Whether the partial abolition of tort liability in the now-repealed No-fault Act bars Ms. Gallo’s claims for medical expenses against Lake Harmony, a landowner.

I.

Lake Harmony argues that it is entitled to immunity from liability as a landowner in this case because of the Recreation Use of Land and Water Act., 68 P.S. § 477-1 et seq. The General Assembly passed the Act in 1965 expressly “to encourage owners of land to make land and water areas available to the public for recreational purposes.” 68 P.S. § 477-1. The Act promotes this goal by limiting landowner liability for injuries that occur on the land as a result of recreational activity. Section 3 of the Act limits traditional landowner liability as follows:

Except as specifically recognized or provided in section 6 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

Id. at § 477-3. For landowners who by some means invite or permit recreational activity on their land, Section 4 of the Act contains a slightly different formulation of the immunity standard:

Except as specifically recognized by or provided in section 6 of this act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose.
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty or care is owed.
(3) Assume responsibility for or incur liability for any injury to persons or property caused by an act or omission of such persons.

Id. at § 477-4. As these provisions indicate, however, the immunity is not absolute. Section 6 of the Act preserves landowner liability for “wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” Id. at § 477-6(1). This section also preserves the usual, negligence-based standard of care for those cases in which the landowner has charged the plaintiff a fee or admission price to use the land. Id. at § 477-6(2).

Lake Harmony maintains that the trial court should have instructed the jury on these provisions. Ms. Gallo does not dispute that she entered Lake Harmony’s land, without charge, to pursue “recreational purposes.” Nevertheless, the trial court concluded, and Ms. Gallo now argues, that a landowner can take advantage of immunity under the Recreation Use Act only if he or she has “donated” the land in question to the public. Because the evidence at trial indicated that the road on which the injury occurred was private, the trial court refused Lake Harmony’s points for charge on the applicability of the Act. Both the trial court and Ms. Gallo suggest that a landowner must at least indirectly invite the public to recreate on the landowner’s otherwise private property. We disagree. Nothing in the plain language of the Act imposes this kind of strict quid pro quo.

Of course, our supreme court has cautioned that we must construe the Recreation Use Act narrowly. See Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986). Grants of immunity from suit are “out of harmony, generally, with the modern trend in tort law.” Id., 510 Pa. at 12, 507 A.2d at 7. We cannot, however, substitute our own judgment for that of the General Assembly. No court of this Commonwealth can disregard the plain letter of a statute “under the pretext of pursuing its spirit.” 1 Pa. C.S.A. § 1921(b). Moreover, as did the court in Rivera, we must consider the Act as a whole. We must presume that “the General Assembly intends the entire statute to be effective.” Id. at § 1922(2). See also id. at § 1921(a).

In holding that the Recreation Use Act immunizes only those landowners who directly or indirectly “donate” their land to the public, the trial court appears to have relied exclusively on language in Section 4 of the Act. Section 4 applies to the “owner of land who either directly or indirectly invites or permits” others to use his or her land for “recreational purposes.” Although this language by itself would support the trial court’s conclusion, the Act contains two separate grants of immunity: one in Section 4 and the other in Section 3. By its terms, Section 3 grants immunity to the “owner of land” without reference to whether the owner “invites or permits” others onto his or her property. Section 4 extends the same immunity to the owner who does somehow invite or permit recreational activity. Unlike Section 3, however, it further provides that those owners who “invite or permit” recreation do not thereby assure the safety of their premises or confer “the legal status of an invitee or licensee” upon persons using their premises. The need for this further grant of immunity arises from the complexity of landowner liability in our common law. A landowner traditionally has greater responsibility to persons whom the owner invites or permits onto the land than to mere trespassers. See Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Restatement (Second) of Torts §§ 328 to 343B (1965). The Act makes sense as written only if we view Section 3 as a general grant of immunity and Section 4 as an extension of that immunity to cover the special circumstances long recognized in the case law. If we ignore the plain language of these provisions and hold that the Act as a whole applies only to landowners who “invite or permit” others to recreate on the land, we will reduce Section 3 to mere surplus-age. The trial court in effect concluded that Section 3 grants the same immunity under the same circumstances as Section 4 does. We decline to attribute such redundancy to the General Assembly. We must remain faithful to the plain letter of the law and to the presumption that the General Assembly intends every provision of a statute to have effect.

In the overall scheme of the Recreation Use Act, Section 3 is the threshold. A defendant landowner crosses this threshold and is therefore entitled to immunity when three conditions coalesce: (1) the landowner did not wilfully or maliciously fail “to guard or warn against a dangerous condition, use, structure, or activity” on the land, 68 P.S. § 477-6; (2) the landowner did not charge the plaintiff for the recreational use of the land, id.; and (3) the injured plaintiff entered the land for “recreational purposes,” id. at § 477-3. The grant of immunity in Section 3 simply does not depend on whether the landowner has encouraged the plaintiff to enter the land. A jury therefore could have found, on the evidence presented in this case, that Lake Harmony was immune from liability. Ms. Gallo certainly did not offer legally conclusive proof that Lake Harmony deliberately disregarded a dangerous condition, structure or activity on its road. Moreover, the evidence presented would easily support a finding that Ms. Gallo entered Lake Harmony’s land, without charge, for recreational purposes. The instructions of the trial court “should not exclude any theory, right or defense” that has support in the evidence. Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 80, 459 A.2d 417, 419-20 (1983). See also Speer v. Barry, 349 Pa.Super. 365, 503 A.2d 409 (1985); 38 P.L.E., Trial §§ 288-89 (1961). We therefore conclude that the trial court erred in this case when it refused to instruct the jury on the applicability of the Recreation Use Act.

Our supreme court’s holding in Rivera does not alter our conclusion. The Rivera court held that the Recreation Use Act does not immunize from liability the owner of an indoor pool located in an urban area. In a footnote, the court observed that “[t]he need to limit owner liability derives from the impracticability of keeping large tracts of largely underdeveloped land safe for public use.” Rivera, supra, 510 Pa. at 15-16 n. 17, 507 A.2d at 8 n. 17. It added that “[t]he same need does not arise in the case of indoor recreational facilities which, in contrast, are relatively easy to supervise and monitor for safety hazards.” Id. Thus, the Act does not protect the owners of enclosed and easily supervised realty even though that realty falls within the literal meaning of the word “land” as the Act defines it, 68 P.S. § 477-2(1).

Although the accident in this case occurred on a paved road in a residential development, the Act applies to more than pristine woodlands. The definition of “land” in Section 2 of the Act includes such improvements as “roads ..., private ways and buildings, structures and machinery or equipment when attached to the realty.” Id. at § 477-1(1). Ms. Gallo’s accident, moreover, occurred outdoors on what the evidence suggests was a large tract of land. Lake Harmony’s development in the Poconos is far removed from the indoor swimming facility that the court considered in Rivera.

II.

Lake Harmony further argues that the trial court should have cautioned the jury expressly against awarding damages for delay. In its points for charge, Lake Harmony had requested the court to instruct the jury as follows: “If you find for the Plaintiff, you shall not award the Plaintiff any damages for delay because this is a matter for the Court.” The proposed instruction borrows almost verbatim from Pa. R.C.P. 238(d), which provides that “[t]he court may, and on request of a party shall, charge the jury that if it finds for the plaintiff, it shall not award the plaintiff any damages for delay because this is a matter for the court.” Rule 238 in general requires the trial court to add delay damages to any compensatory verdict in actions “seeking monetary relief for bodily injury, death or property damage.” Pa. R.C.P. 238(a). The trial court must include delay damages only if the defendant has failed before trial to make a written settlement offer that at least approximates the amount of the compensatory award. Our supreme court recently noted in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 62, 515 A.2d 1350, 1352 (1986), that it promulgated Rule 238 “to clear dockets cluttered by unreasonable refusals to pay what was owed.” When the rule applies, however, it precludes any recovery of delay damages from other sources. See Robert Wooler Co. v. Fidelity Bank, 330 Pa.Super. 523, 479 A.2d 1027 (1984) (double recovery “is not permitted”). The cautionary instruction in subdivision (d) therefore serves a critical purpose. It protects “defendants in jury trials from possible incurrence of double damages for delay.” 1 Goodrich-Amram 2d § 238:1 (Supp.1986). Absent the instruction, the jury might include damages in its verdict, which the court might then increase by adding further delay damages pursuant to Rule 238(a). Id. For this reason, Rule 238(d) requires the trial court, upon request of a party, to give the cautionary instruction that Lake Harmony sought in its points for charge.

The trial court ignored this mandate, thereby exposing Lake Harmony to the very risk that subdivision (d) exists to prevent. Nevertheless, the trial court believes that it adequately cautioned the jury against awarding delay damages. We recognize that a trial court may refuse an otherwise valid point for charge if the court’s charge to the jury, when viewed in its entirety, adequately covers the point. See Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985); Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983). Moreover, even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant. See Mickey v. Ayers, 336 Pa.Super. 512, 485 A.2d 1199 (1984).

In its opinion, the trial court directs our attention to the following language from its charge to the jury:

Now, the only items of damage recoverable by the plaintiff, Concetta Gallo — I will discuss each of them in more detail in a moment — are as follows: damages for her medical expenses; damages for her lost earnings; damages for her pain, suffering, her loss of pleasures of life, disfigurement, embarrassment; and the permanency of her injuries.

Trial Court Opinion at 7 (emphasis supplied by trial court). The court suggests that use of the word “only” to introduce this exhaustive enumeration of recoverable damages sufficiently warned the jury not to award damages for delay. We disagree. Any negative inference the jury might have drawn from the court’s language was insufficient to forestall the possibility that the jurors included damages for delay in their verdict. Rule 238(d) anticipates that jurors will act on their sympathies when asked to compensate the long-suffering victim of a begrudging tortfeasor. The cautionary instruction assures the jury that, if appropriate, the court itself will assess damages to compensate for any delay in the victim’s recovery. By requiring the trial court to give this instruction when a party requests it, our supreme court has indicated that negative inferences will not substitute for a direct warning on delay damages. The court certainly realized when it promulgated Rule 238(d) that in most cases an adequate instruction on damages implicitly warns the jury not to award damages beyond those which the trial judge discusses. Nevertheless, the possibility of prejudice to the defendant in the form of a double assessment of delay damages was great enough to justify the cautionary instruction. We therefore conclude that neither the above-quoted language nor the instruction as a whole adequately covered Lake Harmony’s requested point for charge.

Ms. Gallo argues that this error did not prejudice Lake Harmony. She points out that the jury returned a special verdict in which it awarded specific sums for specific kinds of damage and that these sums correspond to the evidence of damages presented at trial. We find, however, that the form of the verdict in this case did nothing to reduce the possibility of double recovery. The verdict slip required the jury to award damages separately for “medical expenses,” for “lost wages” and for “pain, suffering, loss of pleasures, disfigurement and embarrassment.” The slip thus echoed the language that the court had used in its instructions. The negative inference that arises from this language, as we have indicated already, does not by itself bar a visceral response from the jury. Acting on their emotions, the jury very well could have compensated Ms. Gallo for delay by inflating any or all of the specific items of damages. As with a general verdict, we can only speculate about the intent of the jury. Even if we assume that the amounts the jury awarded for “medical expenses” and “lost wages” are anchored solidly in the evidence, damages for “pain, suffering, loss of pleasures, disfigurement and embarrassment” defy precise quantification. Use of the special verdict in this case does not assure us that the jurors kept their hearts and their minds in the proper perspective. If we are able to conclude that an erroneous charge might have prejudiced the appellant, we must grant a new trial, even though we cannot ascertain the extent to which the error influenced the jury. See Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965); Murphy v. Publicker Industries, Inc., 357 Pa.Super. 409, 516 A.2d 47 (1986).

We recognize, of course, that in Craig v. Magee Memorial Rehabilitation Center, supra, our supreme court suspended the “mandatory provisions” of Rule 238. The Craig court held that Rule 238 transgresses due process “by denial of a forum to assess fault for the delay.” Id., 512 Pa. at 65, 515 A.2d at 1353. “In short,” the court concluded, “Rule 238 has become an uncontestable presumption that all fault lies with a defendant.” Id. In place of the rule, the court established an interim procedure for the assessment of delay damages. The new procedure is not automatic. A party now must petition for delay damages, and the court must consider which, if any, of the parties is responsible for delaying the recovery. This procedure will remain in effect until the court promulgates a new rule on delay damages.

The suspension of Rule 238, however, is prospective only. The Craig court indicated that “[tjhose parties whose cases are now in the appellate or post-trial process, who have not asserted attacks on the Rule 238 aspect of the damage award, may not now assert such challenges.” Id., 512 Pa. at 66, 515 A.2d at 1353. The present case had moved well into the appellate process before the supreme court filed the Craig decision on October 8, 1986. Moreover, the only issue that Lake Harmony raises concerning Rule 238 is whether the trial court should have read the cautionary instruction. Lake Harmony does not challenge the addition of delay damages to the jury’s verdict. The Craig case therefore does not apply to this appeal. Even if we regard the “mandatory provisions” of Rule 238 as suspended for purposes of our review, we nonetheless find that the supreme court did not intend to suspend subdivision (d). By suspending the “mandatory provisions” of the Rule and replacing them with a fault-based assessment procedure, the court sought to avoid punishing defendants qua defendants. The cautionary instruction serves the same purpose. It reduces the possibility that the jury will compensate a plaintiff for delay when the plaintiff very well could have caused the delay. In fact, the instruction is all the more important in light of the determination that Rule 238 unfairly prejudices defendants.

III.

Lake Harmony also contends that the trial court should have informed the jury of Ms. Gallo’s eligibility for “basic loss benefits” under the No-fault Act, which was in effect at the time of the accident. “Basic loss benefits” include all reasonable medical expenses and up to $15,000 for “work loss.” See 40 P.S. § 1009.202(a) and (b). The trial court denied Lake Harmony’s requested point for charge on this issue. The court also refused to mold the verdict to eliminate those amounts that Ms. Gallo could recover as “basic loss benefits” under No-fault. We find that the trial court erred by denying the requested instruction.

In Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984), we upheld a charge to the jury in which the trial court had indicated that plaintiff’s No-fault carrier would pay for plaintiff’s medical expenses and work loss. The trial court warned the jury not to compensate plaintiff for these items. We concluded that “[u]nder the no-fault law it is not only proper, but necessary, to instruct the jury as to the receipt of certain collateral benefits by a plaintiff involved in an automobile accident who is seeking recovery for injuries allegedly sustained therein.” Id., 329 Pa.Superior Ct. at 476, 478 A.2d at 888. The need for this instruction arises from Section 301(a) of the No-fault Act, 40 P.S. § 1009.301(a), which partially abolished tort liability for both “economic” and “non-economic” losses suffered in motor vehicle accidents. Between July 19, 1974, the date of enactment, and October 1, 1984, the effective date of repeal, common law tort remedies ceased to exist in Pennsylvania for the motor vehicle accident victim, unless the No-fault Act itself specifically preserved them. See Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983); Singer v. Sheppard, 464 Pa. 397, 346 A.2d 897 (1975); D. Shrager, The Pennsylvania No-fault Motor Vehicle Insurance Act § 2:32 (1979). Section 301(a)(4) of the Act contained an important exception to this general abolition. Accident victims could still recover in tort those economic losses that exceeded the required “basic loss benefits” coverage. See 40 P.S. § 1009.301(a)(4). This meant, of course, that the No-fault Act abolished any action in tort to recover damages for work loss under $15,000 or for medical expenses. See Martin v. Soblotney, supra. We therefore concluded in Holland that the trial court properly instructed the jury not to award these damages. The instruction ensures that the accident victim will not recover that which the No-fault Act has forbidden. If the trial court believes an instruction on the applicability of No-fault will confuse the jury, the court can provide the same assurance by molding the verdict to exclude amounts recoverable under the Act. See Wilson v. Jones, 341 Pa. Super. 280, 491 A.2d 262 (1985); Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080 (1984). In the case now before us, the trial court neither instructed the jury nor molded the verdict.

Ms. Gallo contends, however, that Lake Harmony, as a landowner, cannot take advantage of the No-fault Act to avoid liability. The Act nowhere required landowners, as such, to maintain No-fault security. Ms. Gallo therefore reasons that the General Assembly could not have intended to eliminate the liability of landowners upon whose premises a motor vehicle accident occurs. We disagree. Section 301(a) extinguished the right to recover for “any injury” that occurred within the Commonwealth as long as the injury arose “out of the maintenance or use of a motor vehicle.” 40 P.S. § 1009.301(a). As one commentator has recognized, this broad abolition of tort liability differs from those no-fault laws of other jurisdictions that exempt only secured motor vehicle owners from liability. See D. Shrager, supra, at § 2:3.2 (citing the no-fault laws of Connecticut, Florida, Massachusetts, New Jersey and North Dakota). It also differs from the “exclusiveness of remedy” provision in Section 303(a) of the Pennsylvania Workmen’s Compensation Act, 77 P.S. § 481(a), which eliminated the tort liability of employers in exchange for a “more equitable and certain system of compensation” for injured employees, Kosowan v. MDC Industries, Inc., 319 Pa.Super. 91, 98, 465 A.2d 1069, 1072 (1983). The No-fault Act did not establish a trade-off between two classes of potential litigants such as “employers” and “employees.” It simply abolished one system of injury compensation in favor of another, supposedly more efficient and less costly system. See 40 P.S. § 1009.102 (“Findings and purposes”). Unlike the Workmen’s Compensation Act, Section 301(a) of the No-fault Act did not specify whose tort liability was abolished. The General Assembly therefore must have intended to abolish the liability of all potential defendants in motor vehicle accident cases unless a specific exception applied.

The plain language of Section 301(a) bolsters our conclusion. Subsection 301(a)(2) provided in part that “[a] person in the business of designing, manufacturing, repairing, servicing, or otherwise maintaining motor vehicles remains liable for injury arising out of a defect in such motor vehicle which is caused or not corrected by an act or omission in the course of such business.” 40 P.S. § 1009.301(a)(2). Thus, the Act expressly preserved intact the liability of motor vehicle manufacturers and repairers. The General Assembly, however, need not have excepted this class of defendants from the abolition of tort liability if, as Ms. Gallo urges, the abolition applied only to those defendants whom the Act required to maintain No-fault security. Manufacturers and repairers are as removed from the No-fault system as landowners. The General Assembly nonetheless deemed necessary the express retention of manufacturer and repairer liability in tort. We can only conclude from this language that the abolition of tort liability in the No-fault Act did not hinge on whether the Act required the defendant to maintain security. The Assembly did not intend to benefit a particular class of defendants.

The trial court in its opinion asserts that it denied the requested No-fault instruction because, at the time, Ms. Gallo had not actually received “basic loss benefits” from a No-fault carrier. We reject this rationale for two reasons. First, it lacks any support in the language of the Act. Second, if we condition the abolition of tort liability upon the actual receipt of “basic loss benefits,” we would, in effect, reinstate a cause of action against Lake Harmony merely because the responsible No-fault carrier had not yet paid Ms. Gallo at the time of trial. This would reward Ms. Gallo with a potential double recovery and punish Lake Harmony for a misfortune it did not cause. We presume that the General Assembly did not intend such an absurd and inequitable result. See 1 Pa.C.S.A. § 1922(1).

IV.

For the above reasons, we reverse the order of the trial court and remand for a new trial in which only Ms. Gallo, Lake Harmony and Mr. Ott will participate. The errors in the charge to the jury did not affect that portion of the verdict which exculpated Yamaha and Mr. Polansky. As we recognized in Potenburg v. Varner, 284 Pa.Super. 19, 23, 424 A.2d 1370, 1372 (1981), “[a] defendant whom the jury has exculpated should not be subject to a new trial unless there was trial error as to him.” See also Sternberg v. Dixon, 411 Pa. 543, 192 A.2d 359 (1963).

Order reversed and case remanded for a new trial limited to the claims between Concetta Gallo, Bruce Ott and Lake Harmony Estates.

      . Ms. Gallo initially sued Pocono West, Inc. as the owner of the road. When discovery revealed that Lake Harmony actually owned the road, counsel agreed by stipulation to drop Pocono West as a party. On appeal, only Ms. Gallo and Lake Harmony filed briefs and argued. Yamaha filed a brief. Mr. Polansky and Mr. Ott, although nominal appellees, did not participate.

      . Lake Harmony did not raise their Recreation Use Act immunity until January of 1983. Although the trial court denied Lake Harmony* s motion to amend its answer to include this defense, we reversed and remanded to allow the amendment. See Gallo v. Yamaha Motor Corp., 335 Pa.Super. 311, 484 A.2d 148 (1984). We did not venture an opinion, however, on the merits of the proposed defense.

      . In a separate action, Ms. Gallo sought to recover medical expenses and lost wages from her own No-fault carrier. The carrier denied the claim on the ground that the snowmobile on which Ms. Gallo was injured was not a “motor vehicle” within the meaning of either the insurance contract or the No-fault Act. The trial court agreed with the carrier and granted judgment on the pleadings against Ms. Gallo. On appeal, this court held that snowmobiles are “motor vehicles,” but only in certain circumstances. We therefore remanded to the trial court for a determination of whether those circumstances existed in this case. See Gallo v. J.C. Penny Cas. Ins. Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984). We note that in the current appeal we need not consider which particular No-fault carrier is liable to Ms. Gallo. We need only consider the threshold question of whether Ms. Gallo’s No-fault remedies preclude recovery in tort of amounts recoverable under No-fault.

      . For purposes of the Act, "land” means “land, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty." 68 P.S. § 477-2(1). Our supreme court recently held that the Assembly intended the Act “to encourage the opening up of large, private land holdings for outdoor recreational use by the general public." Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 15, 507 A.2d 1, 8 (1986). The court therefore concluded that the words “buildings” and "structures," as they appear in Section 2(1) of the Act, 68 P.S. § 477-2(1), mean "ancillary structures attached to open space lands made available for recreation and not to enclosed recreational facilities in urban regions." Id.

      . Lake Harmony also maintains that the trial court erred in ruling immediately before trial that the Act does not apply in this case. Although we agree that the Act does apply, Lake Harmony has failed to show how this pre-trial ruling prejudiced the presentation of its case.

      . We note that despite this cautionary language in Rivera, the supreme court did not hesitate to apply Recreation Use Act immunity to the Commonwealth in Commonwealth, Department of Environmental Resources v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986).

      . Three federal district courts have concluded in recent years, as we conclude now, that the Recreation Use Act immunizes landowners from liability even when the landowner does not "directly or indirectly invite or permit” recreational activity on his or her land. See Barrett v. Pennsylvania Gas & Water Co., 631 F.Supp. 731 (M.D.Pa. 1985); Livingston v. Pennsylvania Power & Light Co., 609 F.Supp. 643 (E.D.Pa.1985); Hahn v. United States, 493 F.Supp. 57 (E.D.Pa.1980). Although these decisions do not bind us, the unanimity of result certainly suggests that the language of the Act is clear on this point.

      . Even if the Recreation Use Act does only apply to those landowners who either directly or indirectly invite or permit recreational activity on their land, we note that the trial court, in its instruction to the jury, characterized Ms. Gallo as a licensee. The definition of ‘‘licensee" that the court read derived from the Restatement (Second) of Torts § 330, which defines "licensee” as “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” If Ms. Gallo was a licensee at the time of the accident, she certainly was on Lake Harmony’s property with at least indirect permission from Lake Harmony. In Wiegand v. Mars National Bank, 308 Pa.Super. 218, 454 A.2d 99 (1982), we held that the Act shielded a landowner from liability to a licensee who had entered the landowner’s property for recreational purposes.

      . We note that in some instances the trial court can cover a requested point for charge with a negative inference. For example, in Sprague v. Walter, 357 Pa.Super. 570, 516 A.2d 706 (1986), appellant in a libel case asked the trial court to instruct the jury that it could not award presumed damages absent clear and convincing evidence. The trial court had instructed that clear and convincing evidence was required to establish damages. We concluded that this instruction, "by necessity, would negate the award of presumed damages.” Id., 357 Pa.Superior Ct. at 612 n. 21, 516 A.2d at 728 n. 21.

      . Both Ms. Gallo and the trial court assert that Lake Harmony waived the delay damages issue when counsel failed to take a specific exception to the denial of the requested point for charge. Although Pa. R.A.P. 302(b) requires that parties take specific exception to erroneous language or omissions in the jury charge, a party can preserve his or her objection by submitting a specific point for charge on the disputed point. See Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984).

      . Cf. Shellhamer v. Gray, 359 Pa.Super. 499, 519 A.2d 462 (1986) (appellant challenged award of delay damages as "unfair, confiscatory, and unreasonable”; case remanded for proceedings consistent with Craig); Dale v. Baltimore & Ohio R.R. Co., 359 Pa.Super. 477, 519 A.2d 450 (1986) (appellant argued that it was not liable for payment of any delay damages under Pa.R.C.P. 238; same disposition).

      . No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), eff. October 1, 1984.

      . Lake Harmony also suggests that the court should have informed the jury that a health insurance carrier, Blue Cross and Blue Shield, paid Ms. Gallo’s medical bills. We disagree. In Pennsylvania, a tort victim can recover for his or her injuries regardless of whether he or she has received compensation for those injuries from a collateral source. See Denardo v. Carneval, 297 Pa.Super. 484, 444 A.2d 135 (1982). This “collateral source" rule prevents the wrongdoer "from taking advantage of the fortuitous existence of a collateral remedy.” Greenwood v. Hildebrand, 357 Pa.Super. 253, 264, 515 A.2d 963, 968 (1986). We therefore conclude that reference to the Blue Cross and Blue Shield payments would have been irrelevant and prejudicial. Of course, the collateral source rule does not exclude information concerning the receipt of No-fault benefits. See Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984).

      . The Act abolished liability for "non-economic" injuries, such as pain and suffering, unless the injuries met one of four conditions. See 40 P.S. § 1009.301(a)(5)(A)-(D). This appeal does not challenge Ms. Gallo's right to recover for her non-economic inflictions.

      . Lake Harmony alleges that Ms. Gallo has since received $35,000 in No-fault benefits.

      . We need not consider issues III, IV and V in Lake Harmony’s brief. Issue III challenges the sufficiency of the evidence for purposes of proving that Lake Harmony breached a duty of care owed to Ms. Gallo. Because we have granted a new trial at which the parties will present their evidence de novo, we decline now to reach the merits of Lake Harmony's arguments. Issue V challenges the trial court’s decision to allow what Lake Harmony labels "undisclosed expert testimony.” Again, our grant of a new trial renders this point moot. The trial court adequately disposed of issue IV in its opinion.


author: KELLY, Judge:

text:
    526 A.2d 369
    COMMONWEALTH of Pennsylvania v. Jessie Bell GROVE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1986.
    Filed May 18, 1987.

      John R. Merrick, Public Defender, Murray K. Smith, Assistant Public Defender, West Chester, for appellant.
    Thomas J. Wagner, Assistant District Attorney, Phoenix-ville, for Com., appellee.
    Before CIRILLO, President Judge, and MONTEMURO and KELLY, JJ.
   KELLY, Judge:

At approximately 11:00 p.m. on Thursday, October 8, 1981, appellant, Jessie Bell Grove, entered the master bedroom of her home where her husband, Israel Grove, lay drunk and asleep. Appellant removed approximately four hundred dollars from his trouser pocket and then shot her husband in the back with a twelve gauge shotgun. She then tied his legs together, poured gasoline about his body and ignited it. The fire charred Israel Grove’s remains, and destroyed the family residence. Appellant’s daughter, Diane Denise Grove, assisted her mother in the commission of these acts. The next day, appellant went to Lukens Steel Company, her husband’s employer, and asked about receiving his back pay, vacation pay, and insurance benefits. During her initial contacts with the police, she lied about her activities on the night of her husband’s death. However, appellant eventually confessed to the murder in a sworn statement to the Pennsylvania State Police.

On October 4, 1982, following a jury trial, appellant was found guilty of first-degree murder and conspiracy. She was acquitted of a charge of arson. Post-verdict motions raising fifty-seven allegations of error were filed and denied. On September 24, 1984, appellant was sentenced to life imprisonment on her first-degree murder conviction and a consecutive sentence of five to ten years imprisonment on the conspiracy conviction. A timely notice of appeal was filed. Appellant’s motion for reconsideration of sentence was filed, argued and denied.

On appeal, appellant contends that: the trial court improperly prevented appellant from presenting her self-defense claim; the trial court erred in failing to suppress appellant’s statements to the police; the jury charge was unclear, inadequate, and inaccurate; the trial court abused its discretion with regard to adverse rulings made throughout appellant’s trial; and the sentence imposed on the conspiracy charge was excessive and illegal. Upon review of the voluminous record, the briefs of the parties, the relevant caselaw, and the thorough and well-reasoned opinion by the Honorable John E. Stively, Jr., we find no merit in this appeal, and accordingly affirm judgment of sentence.

I.

Appellant’s theory of self-defense was that she actually and reasonably believed that deadly force was necessary to protect herself and her daughter from death or serious bodily injury. She based her claim upon her allegation that throughout her twenty-two year marriage, she and her children were physically abused by the victim, Israel Grove, her husband. Appellant contended that her perception of danger on the day of this incident was directly affected by the cumulative impact of years of abuse. On appeal, appellant contends that the trial court erroneously excluded evidence of specific violent acts of the victim as well as evidence of his general reputation for violence. Appellant argues that this evidence was essential to establish both the sincerity and reasonableness of appellant’s fear of death or serious bodily injury. (Appellant’s Brief at 8). We cannot agree.

“The trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination and cross-examination of witnesses. Such matters are committed to the sound discretion of the trial judge.” Com monwealth v. Pittman, 320 Pa.Super. 166, 172-173, 466 A.2d 1370, 1373 (1983) (eitation omitted). Decisions regarding such matters will not be reversed on appeal absent a clear abuse of discretion. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984).

The trial court held that while there was a possible basis for a self-defense claim, the excluded evidence was, nonetheless, inadmissible under the two-prong relevancy test announced in Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971). The court reasoned that because appellant admitted that the victim was asleep, no evidence of the victim’s violent propensities (acts or reputation) could be admitted to establish that the victim was the aggressor. The court further reasoned that evidence of the victim’s violent propensities (acts or reputation) would only be admissible to establish the reasonableness of appellant’s perception of an actual threat if she knew of the acts or the reputation at the time she used the deadly force. Applying this reasoning to the appellant’s various proffers, the Court concluded that some but not all of appellant’s evidence was admissible; the remainder was excluded because appellant failed to establish a proper foundation for its admission. See Trial Court Opinion at 13-19. While we agree with the trial court’s analysis and application of the rule in Commonwealth v. Amos, supra, we do not find such analysis necessary. Instead, we would find that the evidence was properly excludable because self-defense was not properly at issue in this case.

In Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980), the Pennsylvania Supreme Court stated:

‘While there is no burden on the defendant to prove a claim of self-defense, it is nevertheless required that before such a defense is properly in issue at trial, there must be some evidence, from whatever source, to justify such a finding.'

491 Pa. at 512, 421 A.2d at 662. (Citations omitted) (emphasis omitted and added).

In Commonwealth v. Simmons, 504 Pa. 565, 475 A.2d 1310 (1984), our Supreme Court stated:

Pursuant to 18 Pa.C.S. § 505(a):

The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
Additionally a claim of self-defense is further proscribed by the following conditions:
(1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing;
(2) The slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to kill in order to save himself therefrom;
(3) The slayer must not have violated any duty to retreat or avoid the danger.

504 Pa. at 569, 475 A.2d at 1312-13. (Citing cases) (emphasis added).

We find that self-defense was not properly at issue because there was no evidence presented to establish that appellant reasonably believed that she or any other person was in imminent danger of death or serious bodily injury on the present occasion when the deadly force was used. In reaching this conclusion we are mindful of the unique questions and considerations which arise in cases involving intra-familial, and especially intra-spousal, violence or abuse. In the context of a claim of self-defense by a battered spouse, our Supreme Court has explained:

A woman whose husband has repeatedly subjected her to physical abuse does not, by choosing to maintain her family relationship with that husband and their children, consent to or assume the risk of further abuse. That woman faces a difficult choice: she must decide whether to endure continued abuse, or whether to leave her home or otherwise terminate her family relationship in order to avoid further mistreatment. Not surprisingly, some of those women who have “decided” to suffer years of abuse suddenly reach the “breaking point” and react violently.
In a case such as this, in which there has been physical abuse over a long period of time, the circumstances which assist the court in determining the reasonableness of a defendant’s fear of death or serious injury at the time of a killing include the defendant’s familiarity with the victim’s behavior in the past. See A. Eisenberg & E. Seymour, The Self Defense Plea and Battered Women, 14 Trial Nos. 7, 34, 41 (1978) (“If she had knowledge, at the time, of prior specific acts of violence by the victim ..., that knowledge had to work on her mind, causing greater fear than if she had lacked such knowledge.”); Comment, 6 Pepperdine L.Rev. 213, 223 (1978) (“[T]here is no reason why a finding of self-defense should not consider the mental state of a reasonable person who has suffered repeated previous beatings at the hands of the victim.”). Further, in determining the reasonableness of a defendant’s belief, we must also take into account any changes in her husband’s behavior towards her immediately before the killing.

Commonwealth v. Watson, 494 Pa. 467, 472-73, 431 A.2d 949, 951-52 (1981); Commonwealth v. Zenyuh, 307 Pa.Super. 253, 257-58, 453 A.2d 338, 340 (1982); cf. Commonwealth v. Eberle, 474 Pa. 548, 555-56, 379 A.2d 90, 95 (1977) (self-defense claim of woman who was attacked by drunken boyfriend).

In Watson and Zenyuh, battered wives used deadly force when their unarmed husbands attacked them. In both cases, a history of abuse, coupled with a contemporaneous increase in their husbands’ threats and use of violence, was relevant evidence in determining whether the defendant-wives reasonably believed that they were in imminent danger of death or serious bodily injury on the present occasion. In Watson, the defendant “shot her husband only after he had placed his hands around her neck, ....” 494 Pa. at 474, 431 A.2d at 952. (Emphasis added). In Zenyuh, the defendant stabbed her husband with the kitchen knife that she grabbed to defend herself after he had just beaten her, while he was still in a rage, and as he was coming at her again. 307 Pa.Superior Ct. at 256-257, 453 A.2d at 339-340.

Distinguished Justice Oliver Wendell Holmes, Jr., reasoned that, “the law does not require detached reflection in the presence of an upraised knife.” Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961 (1921). In Watson and Zenyuh, Pennsylvania courts recognized that battered wives, viewing the facts through a filter of fear caused by past beatings, might reasonably perceive the approach of their threatening but unarmed husbands in the same way that another person would view the approach of a stranger with an upraised knife.

However, reliance upon Watson and Zenyuh by the appellant in the instant case is misplaced. Unlike the battered wives literally under seige in Watson and Zenyuh, the appellant in the instant case offered no evidence whatsoever to establish that she or any other person was in imminent danger of death or serious bodily injury on the present occasion when the deadly force was used. The victim was not threatening in any manner; rather, it is undisputed that he was drunk and asleep. While a history of spousal abuse is certainly a factor to be considered in determining whether an accused’s alleged fear of imminent death or serious bodily injury is genuine and reasonable, it does not alter the requirement that the threat of death or serious bodily injury be imminent on the present occasion. Assuming that appellant was genuinely and reasonably afraid of her husband, the fact remains that whatever danger he presented was not imminent on the present occasion as he lay sleeping.

Appellant attempts to cloud this issue with a semantical smokescreen regarding alleged differences between the time frames encompassed by the terms “immediate” and “imminent,” as used in the self-defense statute (immediate), and the caselaw (imminent). Appellant contends that there is a conflict between the caselaw and the language of the statute in that the statutory phrase “immediately necessary ... on the present occasion” was intended to be an expansion of the caselaw term “imminent.” Appellant cites Model Penal Code § 3.04, Comment 2(c) in support of this argument and concludes:

Thus, ‘plain meaning’ of the language to the contrary, the Crimes Code drafters intended to provide a defendant with greater ‘latitude’ than the term ‘imminent’ implies.

(Appellant’s Brief at 23). (Emphasis supplied). Succinctly stated, appellant contends that the statutory limit on the right of self-defense (“immediately necessary on the present occasion”) is longer than the caselaw standard (“imminent”) and that the court erred by instructing the jury in accordance with the more restrictive caselaw standard.

In Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (1986), an undivided en banc panel of this Court stated:

The legislative history is devoid of any reference to a legislative intent to adopt the radical change in the law of self-defense which the appellant contends that the enactment of 18 Pa.C.S.A. § 505(b)(2)(i) accomplished. We note that while the legislature appears to have borrowed language from § 3.04 of the Model Code, the statute does not follow the Model Code verbatim, nor did the legislature adopt or even discuss the Comments to the Model Code upon which the appellant so heavily relies.
Our Supreme Court has consistently stated that, ‘[f]or the most part, section 505 of the Code merely codifies the common law of this Commonwealth.’ Commonwealth v. Cropper, 463 Pa. 529, 534, 345 A.2d 645, 647 (1975); see also [Commonwealth v. Black, 474 Pa. 47, 53 n. 3, 376 A.2d 627, 630 n. 3 (1977); Commonwealth v. Walley, 466 Pa. 363, 367 n. 3, 353 A.2d 396, 398 n. 3 (1976); Commonwealth v. Light, 458 Pa. 328, 334 n. 4, 326 A.2d 288, 292 n. 4 (1974); Commonwealth v. Jones, 231 Pa.Super. 300, 304 n. 4, 332 A.2d 464, 466 n. 4 (1974)]. The Official Comment to 18 Pa.C.S.A. § 505 provides in pertinent part: This section is derived from Section 3.04 of the Model Penal Code, and makes no substantial change in existing law. The intent of this section is to codify existing case law pertaining to ‘self-defense' and to cover in a single rule the law governing the use of defensive force against both attack and in crime prevention.
Reprinted at 18 Pa.C.S.A. § 505, at 23 (Purdon’s Supp. 1986). We note that where the Code provisions clarified, liberalized or changed the existing law, the Official Comment to . those provisions unequivocally announced such intent.
Consequently, we reject the appellant’s argument that, while for the most part the law was not changed, the statute did alter the law of self-defense such that the instruction given by the trial court constituted reversible error.

357 Pa.Superior Ct. at 521-522 & n. 3, 516 A.2d at 383 & n. 3. (Emphasis supplied). The same reasoning applies to appellant’s claim in the instant case. To the extent that Model Penal Code comments are inconsistent with the case-law regarding self-defense as it existed in 1972 (when 18 Pa.C.S.A. § 505 was adopted), the caselaw and not the Model Penal Code comment controls as to the construction of the statute.

Moreover, appellant testified that the threat to kill her or her daughter, Sissy, was contingent upon Sissy’s return to the house the next day. (N.T. 10/14/82 at 1449-50, 1465, 1470 & 1479-80). As a matter of law, any imminence to appellant’s perceived risk of death or serious bodily injury ended, as did the conflict on the “present occasion,” when the victim went to bed and fell asleep. Because her sleeping husband presented neither an immediate nor an imminent threat of death or serious bodily injury on the present occasion when the deadly force was used, self-defense was not properly at issue in the instant case.

II.

Appellant next contends that the trial court erred in failing to suppress all oral and written statements made by appellant to the police during their investigation. Appellant argues that she was subjected to three unconstitutional custodial interrogations on October 9, 1981 and October 10, 1981. Appellant further contends that later statements, made after receiving full Miranda warnings and signing a waiver form, were tainted by the illegality of the earlier interrogations. We cannot agree.

The scope of our review of the suppression court’s decision is well-settled:

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985) (citing cases).

The trial court found that the defendant was not taken into custody or otherwise deprived of her freedom in any significant way during the interviews on October 9, 1981 and October 10, 1981. (N.T. 10/8/82 at 576). The trial court also found that on October 14, 1981, appellant was given full Miranda warnings and that she knowingly and intelligently waived her rights before giving oral and written statements. (N.T. 10/8/82 at 577).

Upon review of the voluminous record of the suppression hearing (N.T. 8/6/82 at 261-461; N.T. 8/7/82 at 464-566; N.T. 8/8/82 at 574-578), the briefs of counsel, and the opinion of the trial court, we find that the trial court’s findings are supported by sufficient credible evidence and that the trial court made no errors of law in denying the motions to suppress. We note with approval the trial court’s reliance upon Commonwealth v. Anderson, 253 Pa.Super. 334, 385 A.2d 365 (1978). Appellant’s second contention is without merit.

III.

Appellant next contends that the charge to the jury was unclear, inadequate and incomplete. Appellant argues that the trial court abused its discretion by: sua sponte charging the jury on the Slayer’s Act; by failing to instruct the jury regarding their mercy dispensing powers; by giving a confusing charge on voluntary manslaughter; by giving an incomplete charge on the defense of diminished capacity; and by giving inaccurate instructions on the law of justification. We cannot agree.

In Commonwealth v. Alvin, supra, this Court summarized the law regarding alleged errors in instructing the jury as follows:

In reviewing jury instructions for prejudicial and reversible error, the charge must be read and considered as a whole; error cannot be predicated on isolated excerpts, and it is the general effect of the charge that controls. Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). Moreover, there is no right to have any particular form of instruction given; it is enough that the charge clearly and accurately explains the relevant law. Commonwealth v. Dozier, 294 Pa.Super. 249, 439 A.2d 1185 (1982). Where the charge given properly covers the requested point, it is not error for the trial court to refuse to give additional instructions. Commonwealth v. Hayes, 314 Pa.Super. 112, 460 A.2d 791 (1983).

357 Pa.Superior Ct. at 518-519, 516 A.2d at 381.

Appellant’s argument that the trial court abused its discretion in sua sponte issuing a charge as to the Slayer’s Act is without merit. The jury, in writing, requested the trial court to tell them whether a corpse was a person, and to define arson. (N.T. 10/23/82 at 2864). After protracted discussion with counsel, and after giving counsel an opportunity to research the issue, the trial judge determined that in answering the jury’s questions fully he would have to supplement his original charge with an explanation of the Slayer’s Act, and how it would affect the jury’s factual determination of whether the Grove family residence could be considered a building or occupied structure of another. (N.T. 10/23/82 at 2881-91). After completing his supplemental instructions, the trial judge entertained argument from appellant’s counsel and then clarified his supplemental instructions with respect to the defenses of justification and insanity. (N.T. 10/23/82 at 2892-95). We find no error of law or abuse of discretion in either the decision to give the supplemental instructions or in the instructions themselves. We note that appellant was acquitted upon the charge to which the instructions applied. We note also that appellant’s argument that the instructions upon this issue may have confused the jury with regard to unrelated issues is without basis. A fair reading of the instructions as a whole reveals no such potential for confusion or prejudice.

Appellant next argues that the trial court abused its discretion in failing to instruct the jury concerning its inherent mercy dispensing powers. At the time of appellant’s trial, Pennsylvania appellate decisions held that, “a defendant under indictment of murder will be entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter.” Commonwealth v. Jones, 457 Pa. 563, 573-74, 319 A.2d 142, 148 (1974) (Opinion in Support of Affirmance) (emphasis supplied); see also Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978), overruled Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983); Commonwealth v. Schaller, 493 Pa. 426, 426 A.2d 1090 (1982). The jury was, in fact, given instructions regarding Murder of the First Degree (N.T. 10/22/82 at 2785), Murder of the Third Degree (N.T. 10/22/85 at 2788), Voluntary Manslaughter (N.T. 10/22/82 at 2789), and Involuntary Manslaughter (N.T. 10/22/82 at 2793).

Appellant argues, however, that:

Recent Pennsylvania Supreme Court decisions have made it clear that the trial court, when instructing the jury on their inherent [mercy dispensing powers] must explain the nature of the power as well as the scope. Commonwealth v. Cain, [471 Pa. 140, 162, 369 A.2d 1234, 1245 (1977)]. In elaborating upon this duty, the Court in Schaller [stated]:
It is clear that the jury should be instructed on the full extent of its power so it may exercise its common sense judgment in determining not only the guilt or innocence of the accused, but also, the degree of guilt if guilt is found.
Commonwealth v. Schaller, supra 493 Pa. at 430, 426 A.2d at 1092.

(Appellant’s Brief at 63). Appellant, however, neglects to acknowledge that neither Cain nor Schaller commanded the support of a majority of the Supreme Court. Appellant also neglects to acknowledge that the Supreme Court has virtually abandoned Commonwealth v. Jones, supra, and all its progeny, including Cain and Schaller.

In Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), Justice Larsen, writing for the majority, summarized the current status of Jones and its progeny as follows:

There is little or no vitality left to this practice which stems from this Court’s decisions in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974) and Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978). The continuing validity of the rule was seriously undermined by our decision holding that an instruction on involuntary manslaughter may be given only where the evidence would support such a verdict. Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980); Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980). The death knell to the practice regarding instructions on voluntary manslaughter was sounded in Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) wherein a majority of this Court held that a trial court may charge on the ‘unreasonable belief’ sub-class of voluntary manslaughter, 18 Pa.C.S.A. § 2503(b), only where evidence exists that would support such a verdict. 466 A.2d 1328. The majority did not decide the propriety of the practice of charging the jury on ‘heat of passion’ voluntary manslaughter, 18 Pa.C.S.A. § 2503(a) in the absence of evidence, 466 A.2d 1331, n. 8, although the concurring opinions of this author and Mr. Justice McDermott would have abolished that practice as well.

504 Pa. at 450 n. 10, 475 A.2d at 711 n. 10.

Commonwealth v. Jones, supra, was intended to eliminate the arbitrariness which then existed in murder trials, by removing from the discretion of trial judges the decision of whether to give instructions regarding lesser included offenses. Despite its laudable aims, Jones merely shifted the power to be arbitrary from trial judges to juries. The core of the problem, the invitation to a jury to base its verdict upon an arbitrary decision to grant or withhold mercy, rather than upon the facts and law presented, remained.

It now appears, however, that a defendant in a murder case (or any other type of case) will be entitled to a charge upon a lesser included offense or legal defense only when there has been some evidence presented to support the charge. See Commonwealth v. White, supra, 490 Pa. at 181, 415 A.2d at 400; Commonwealth v. Brown, supra, 491 Pa. at 512, 421 A.2d at 662; see also Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273 (1976) (en banc). In no case will a defendant be entitled to a charge which invites the jury to return its verdict based upon mercy rather than fact. See Commonwealth v. Hathaway, 347 Pa.Super. 134, 147, 500 A.2d 443, 449-50 (1985); Commonwealth v. Brown, 273 Pa.Super. 468, 470-71, 417 A.2d 743, 744-45 (1980).

Appellant argues further that the instructions with respect to Voluntary Manslaughter, Diminished Capacity, and Justification (self-defense), were confusing, incomplete and incorrect. (Appellant’s Brief at 64-81). We have reviewed: the briefs of counsel; the Commonwealth’s suggested Points for Charge; appellant’s Points for Charge; the arguments of counsel prior to the charge (N.T. 10/21/82 at 2640-64; N.T. 10/22/82 at 2667-70); the original charge to the jury (N.T. 10/22/82 at 2765-2826); appellant’s exceptions (N.T. 10/22/82 at 843-44); and the written questions from the jury, the arguments of counsel, and the trial court’s supplemental instructions (N.T. 10/22/82 at 2844-58; N.T. 10/23/82 at 2865-2916). In light of the standard of review set forth, supra, we find no abuse of discretion.

IV.

Appellant next contends that the trial court abused its discretion with regard to various rulings adverse to appellant made throughout the trial. After citing a myriad of specific instances of alleged error or abuse of discretion (Appellant’s Brief at 81-89), appellant candidly admits that, “[standing in isolation many of these rulings may not constitute prejudicial error.” (Appellant’s Brief at 89). However, appellant argues that, “the cumulative impact of these rulings reaches the level of ‘manifestly, unreasonable’ or ‘bias, judgment.’ ” (Appellant’s Brief at 89). We cannot agree.

“It is well established that, ‘an abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will as shown on the record, discretion is abused.’ ” Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 102 (1982); see also Commonwealth v. Goldblum, 498 Pa. 455, 464, 447 A.2d 234, 239 (1982); Garrett’s Estate, 335 Pa. 287, 292, 6 A.2d 858, 860 (1939).

Appellant presents allegations with respect to the trial court's control of the order of proof, of the admission of evidence, and of the conduct of direct and cross-examination. We note that trial judges enjoy broad powers of discretion in these areas. See Commonwealth v. Pittman, supra, 320 Pa.Superior Ct. at 172, 466 A.2d at 1373 (admission of evidence, conduct of direct and cross-examination); Commonwealth v. Smallwood, 497 Pa. 476, 484, 442 A.2d 222, 225 (1982) (control of the order of proof); see also Commonwealth v. Stinnett, 356 Pa.Super. 83, 98, 514 A.2d 154, 162 (1986) (control of cross-examination); Commonwealth v. Johnson, 355 Pa.Super. 123, 141, 512 A.2d 1242, 1251 (1986) (control of the order of proof).

Upon review of each of the allegations individually, and all in the aggregate, we find no abuse of discretion. Rather, we find that the learned trial judge waded cautiously through a morass of complicated legal issues, and sagely exercised control where potentially prejudicial, inflammatory and inadmissible testimony was involved.

V.

Finally, appellant contends that the trial court abused its discretion in sentencing the appellant to a consecutive term of imprisonment of five to ten years on the conspiracy conviction. Appellant argues that: the information and verdict slip were defective in that they included two offenses — conspiracy to commit murder and conspiracy to commit arson; the trial court’s statement of reasons for sentencing were inadequate; and that the sentence was manifestly excessive. We cannot agree.

Appellant was not charged with two separate conspiracy offenses, rather she was charged with having committed one conspiracy offense with multiple objectives. See 18 Pa.C.S.A. § 903(c). Consequently, no violation of Pa.R. Crim.P. 228 (technical or otherwise) occurred. Cf Commonwealth v. Hill, 340 Pa.Super. 155, 165 & n. 6, 489 A.2d 889, 894 & n. 6 (1985).

Appellant’s motion for reconsideration failed to preserve the issue of whether the trial court’s statement of reasons for the sentence was adequate. See Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984) (en banc). Furthermore, our review of the sentencing transcript discloses that adequate reasons were stated on the record. (N.T. 9/24/84 at 17-20).

Appellant’s contention that the sentence is manifestly excessive is a challenge to the discretionary aspects of the sentence. Upon review of appellant’s brief, we find that appellant has failed to set forth the separate concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) required by Pa.R.A.P. 2119(f). See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Although this Court has the authority to grant leave to amend the brief, or to file a new brief to correct such an omission, no application has been made for permission to do so in the instant case. See Pa.R.A.P. 902; Pa.R.A.P. 2501. Thus, appellant’s challenge of the discretionary aspects of the sentence is not properly before this Court. We note that the sentencing factors which appellant claims were not considered by the court (Appellant’s Brief at 96-97) were in fact presented during the sentencing hearing and considered by the court in imposing sentence. (N.T. 9/24/84 at 4-20).

CONCLUSION

Based upon the foregoing reasons, judgment of sentence is affirmed.

      . We note, additionally, that appellant’s complaints regarding the trial court’s treatment of the self-defense issue permeate several of the other issues raised on appeal, and would otherwise require full treatment of this issue infra. (See, infra at n. 10).

      . Model Penal Code § 3.04, comment 2(c) provides:

        Nor does the draft limit the privilege of using defensive force to cases where the danger of unlawful violence is ‘imminent ’, as many formulations of the rule now do. The actor must believe that his defensive action is immediately necessary and the unlawful force against which he defends must be force that he apprehends will be used on the present occasion, but he need not apprehend that it will be immediately used. There would, for example, be a privilege to use defensive force to prevent an assailant from going to summon reinforcements, given belief and reason to believe that it is necessary to disable him to prevent an attack by overwhelming numbers —so long as the attack is apprehended on the ‘present occasion’. The latter words are used in preference to ‘imminent’ or ‘immediate’ to introduce the necessary latitude for the attainment of a just result in cases of this kind.
      (Appellant’s emphasis). Appellant argues that "[ujnder this theory, the jury could have found the defendant justified in killing her husband before he could attack her or her daughter with overwhelming odds (M.P.C. § 3.04), or they could have found that her assessment of the situation was bona fide, but her reaction was unreasonable. Therefore, finding her guilty only of voluntary manslaughter, [sic]” (Appellant's Brief at 23).

        See, for example, the Official Comments to 18 Pa.C.S.A. § 110 (This section modifies present law ...); § 305 (Subsection (b): There is no similar provision in existing law. The purpose is to 'tone down ’ absolute or strict liability in penal law as a whole.); § 306 (Subsection (g); This subsection changes existing law ...); § 309 (Subsection (a); § 504 (This section is intended to define more precisely .. .); § 901 (The purpose of this ... section is to change existing case law ...); § 907 (This section broadens existing law ...); § 908 (This section broadens and consolidates the various existing provisions). The Official Comments are reprinted following the Code sections to which they apply in 18 Pa.C.S.A. §§ 101-908 (Purdon’s Supp.1986).

      . With respect to appellant’s contention that the Model Penal Code comment indicates an intent to provide greater latitude despite the “ ‘plain meaning’ of the language to the contrary," supra, we note that 1 Pa.C.S.A. § 1939 provides in pertinent part, "... the text of the statute shall control in the event of a conflict between its text and such comment or report.” See also 1 Pa.C.S.A. §§ 1903, 1921(b), 1922(b).

      . Appellant apparently overlooks the fact that even the Model Penal Code comment requires that attack be "apprehended on the ‘present occasion.’ ’’ (Supra, at note 2).

      . Cf. Commonwealth v. Reiff, 489 Pa. 12, 413 A.2d 672 (1980) (appellant failed to show that wife’s paramour was armed or otherwise presented an imminent threat of death or serious bodily injury); Commonwealth v. Black, supra, 474 Pa. at 54, 376 A.2d at 630-31 ("the victim had not reached a position relative to where appellant was standing to have posed an immediate threat....”); Commonwealth v.

        Walley, supra (pursuit and use of deadly force after repelling attack was not privileged); Commonwealth v. Daniels, 451 Pa. 163, 301 A.2d 841 (1973) (same); Commonwealth v. Cropper, supra, 463 Pa. at 538, 345 A.2d at 650 (“even if appellant’s testimony as to his fear was believed, it was a fear not justified by the immediate circumstances.”).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We note generally that: appellant’s presence was requested rather than compelled; each of the interviews was conducted in a hotel room (not a police station or squad car); officers were not in uniform and displayed no weapons; the interviews were brief, the first lasted two minutes, the other two lasted ten minutes each; the first interview was conducted in front of family and friends; during the second interview appellant was accompanied by a friend; and, appellant was not placed under arrest and was permitted to leave after the first and second interviews.

      . 20 Pa.C.S.A. § 8801 et seq.

      . Chief Justice Nix, the author of the Jones decision, has since stated:
      I am also unimpressed by ... arguments offered by those who advocate vesting in the jury some undefined quantum of ‘mercy dispensing power.’ As noted in [Commonwealth v. Gartner and Pfaff, 475 Pa. 512, 381 A.2d 114 (1978) (Nix, then J., dissenting], 'the term ‘mercy dispensing power’ is merely a euphemism to justify a rationally unsupportable verdict.’ ‘Not only does this approach invite arbitrary action by juries, it also leaves a reviewing court powerless to ascertain and to remedy discriminatory verdicts.'

        Commonwealth v. Manning, supra, 384 A.2d at 1201 (Nix, then J., dissenting); Cf. California v. Brown, — U.S. -, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987).
      Justice McDermott has reasoned:
      If the Commonwealth charges murder, they should be obliged to prove all the elements or fail of their charge. The jury ought not be invited to compromise a defendant into a lesser charge of homicide because they are doubtful of the proofs. Both the Commonwealth and defendant are entitled to the charge proved, or nothing. To say that the jury may show ‘mercy by reducing murder to voluntary manslaughter is a watery ‘mercy if it results from an available compromise of the truth of the occasion____
      “Mercy” is not a factor to be considered. "Mercy” is a quality that strains the truth determining process. It overlooks, it forgets, it forgives, it has its place, but certainly not in the determination of facts.

        Commonwealth v. Carter, supra, 502 Pa. at 446, 466 A.2d at 1333 (McDermott, J., concurring).

      . We note that appellant's arguments under this section regarding self-defense and the jury’s "mercy dispensing power” have also been considered and rejected elsewhere in this opinion.


text:
    526 A.2d 380
    COMMONWEALTH of Pennsylvania v. Lamont THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1987.
    Filed May 18, 1987.

      Irene H. Cotton, Philadelphia, for appellant.
    Deborah Flesher, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence following appellant’s conviction of robbery, aggravated assault and Conspiracy. Appellant was sentenced to ten to twenty years incarceration for robbery and consecutive five to ten year terms for each of the other two offenses for a total sentence of twenty to forty years incarceration.

The underlying facts indicate that on January 12,1985, at approximately 12:00 midnight, the female victim, while returning home from work, was robbed of her purse and then shot in the back. The victim had parked her car on the corner of Hollywood and Mifflin Streets and proceeded up Hollywood Street towards her home when she noticed two black males walking towards her. As they passed her, she was pushed and a struggle over her handbag occurred. The victim was knocked to the ground, kicked and then heard one of the assailants say “shoot her.” She proceeded to roll over onto her stomach and was shot in the back. The two men then fled.

The victim, while hospitalized for her injuries, identified appellant and another individual from a photo array as her attackers. The second individual was subsequently released but the victim later identified appellant from a lineup.

At trial, Walter Martin, who had entered a guilty plea to charges stemming from the attack on the victim, in exchange for a twelve to twenty-five year sentence, testified that he and the appellant were the attackers. He explained that he shot the victim at the urging of appellant.

On appeal, trial counsel is alleged to have been ineffective and the identification testimony is claimed to have been improperly admitted. Appellant also maintains the sentence was imposed without sufficient reasons being set forth.

Appellant first contends it was error to admit identification testimony based on the photos shown to the victim because they were displayed in an unduly suggestive manner. Appellant maintains that showing the pictures one by one to the victim was inherently unreliable because the detective unknowingly and unconsciously, but perceptively, cued the victim. This argument is based on what appellant terms the “Clever Hans effect”, which was discussed in an article in Science Digest, January 1986. Appellant next maintains the in-court identification was a direct product of the prior tainted identification and thus should also have been suppressed.

We are unable to agree with appellant that the identification testimony should have been suppressed. In reviewing such a claim, we must determine whether the identification procedure was so suggestive and conducive to irreparable mistaken identity so as to deny the accused due process. Commonwealth v. Voss, 333 Pa.Super. 331, 482 A.2d 593 (1984); Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376 (1984). We find the procedure used in displaying the photo array to the victim did not amount to a denial of due process. Merely handing photographs to the victim, without comment and with no evidence of overt suggestive presentation, cannot be construed to be improper. The “Clever Hans effect” espoused by appellate counsel, whereby the trainer of a horse by subtle signs between him and the horse could influence the response, would require substantial prior interaction to approach that degree of influence. While humans are smarter than horses, it would be unthinkable that such a degree of interaction could possibly develop in one session between the officer and the victim. We also point out that this specific rationale for improper identification is different than that relied on during post-trial motions and is, therefore, not a proper consideration on appeal. Having made this finding, we must also reject appellant’s contention that the in-court identification was improperly admitted because it was tainted by the initial identification. Williams, supra; Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980).

We next turn our attention to the claims of ineffectiveness of counsel raised by appellant. When reviewing allegations of ineffectiveness of counsel, we must first determine if the underlying issue is of arguable merit. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). Only when the issue is of arguable merit do we then proceed to determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate the client’s interest. Maroney, supra; Buehl, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). In addition, appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986).

Appellant initially asserts that counsel was ineffective for failing to object to the jury charge because the judge omitted those parts of the definition of robbery which do not involve serious bodily injury. He also maintains counsel should have objected to the court’s failure to define “in the course of a theft” in its robbery charge.

Although these claims have arguable merit, upon review, it is our determination that counsel’s actions had a reasonable basis designed to effectuate appellant’s interests. The failure to seek a jury charge on second and third degree robbery could reasonably be based on a strategic decision to attempt to obtain an acquittal rather than accept a conviction on a lesser charge. See Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. Morris, 492 Pa. 565, 424 A.2d 1336 (1981).

The claim that counsel should have requested a charge on the definition of “in the course of a theft” must also be rejected. The court charged the jury in the following manner:

[D]ecide if the aggravated assault was an integral part or necessary element of the robbery. If you so find, it will not be necessary to pass on the aggravated assault charge. However, if you find that the robbery was completed and the shooting occurred thereafter, you may determine that the shooting was an act independent of the robbery and find the Defendant guilty of aggravated assault and you will then so state on the verdict sheet.

(N.T. 8/22/85, p. 94). Appellant maintains that the jury should have been instructed under 18 Pa.C.S.A. § 3701(a)(2), which provides:

§ 3701 Robbery
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

We think counsel could have concluded that under the charge given by the court, the jury was less likely to find that the shooting of the victim was a part of the robbery. Thus the jury would have to find the initial attack rose to the level of first degree robbery to convict appellant of that offense. We find such a strategy to be reasonable and thus unable to support a claim of ineffectiveness.

The final issue raised by appellant is his contention that the court based his sentenced on impermissible factors and failed to adequately state the reasons for the sentence. Based on the recent Supreme Court of Pennsylvania case of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (Larsen, J. dissenting, Hutchinson, J. dissenting), we must find that appellant has not properly presented this issue for appeal.

In Tuladziecki, the Supreme Court noted that 42 Pa.C. S.A. § 9781(b) provides for the filing of a petition for allowance of appeal of the discretionary aspects of sentencing. The procedural rules are then set forth indicating that Pa.R.A.P. 902 provides for the notice of appeal to operate as the petition for allowance required under the statute. Pa.R.A.P. 2116(b) and Pa.R.A.P. 2119(f) are also discussed with the language of Rule 2119(f) establishing the further action required.

Pa.R.A.P. 2119(f) provides:

(f) An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

The Opinion in Tuladziecki goes on to state:

[O]ur rules make a careful distinction between “questions relating to the discretionary aspects of the sentence” and “the issue whether the appellate court should exercise its discretion to reach such question.” Pa.R.A.P. 2116. Recognizing this distinction, the language from the Note to Pa.R.A.P. 902, ... speaks only to the fact that appellant is to supply his brief, with argument on the merits of the question, at the same time as he provides his concise statement of the reasons relied upon for allowance of appeal. It does not and cannot obviate the need for such a statement.
So long as the ... [appellant] is required at some point to demonstrate a “substantial question” in accordance with the statute to invoke Superior Court’s jurisdiction, this procedure is sound. Superior Court may not, however, be permitted to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists. If this determination is not made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence, ... [the appellant] has in effect obtained an appeal as of right from the discretionary aspects of a sentence. It is elementary that such an enlargement of the appeal rights of a party cannot be accomplished by rule of court. For this reason it is essential that the rule of procedure governing appeals such as this be followed precisely.

Tuladziecki, supra, at 513 Pa. 512-513, 522 A.2d 17.

Inasmuch as appellant has failed to set forth in his brief a concise statement demonstrating the existence of a substantial question concerning the discretionary aspects of sentencing, the issue is not properly before us and we cannot rule on the merits.

Having found all of the other issues raised by appellant to be without merit, judgment of sentence is affirmed.

Judgment of sentence affirmed.