text:
    582 A.2d 383
    COMMONWEALTH of Pennsylvania v. Tommie LIDGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 9, 1990.
    Filed Nov. 16, 1990.
    Petition for Allowance of Appeal Denied April 1, 1991.

      Mitchell A. Kaufman, Asst. Public Defender, Pittsburgh, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before ROWLEY, BECK and BROSKY, JJ.
   BROSKY, Judge.

Tommie Lidge appeals from the judgment of sentence of the trial court following her bench trial convictions of possession of a controlled substance and possession with intent to deliver a controlled substance. On October 12, 1989, appellant filed a motion to suppress evidence. The motion was denied after a suppression hearing before the Honorable Robert E. Dauer of the Court of Common Pleas of Allegheny County. Judge Dauer then recused himself. The case was reassigned to the Honorable Walter R. Little and appellant’s convictions followed.

Appellant claims on appeal that the trial court erred in failing to suppress cocaine seized from appellant. She argues that: (1) the police “illegally stopped” her in the Greater Pittsburgh International Airport; and, (2) she did not voluntarily consent to a search of her carry-on bag (the bag was found to contain one thousand seven and one-half grams of cocaine). Appellant avers that the discovery of the cocaine was the result of the illegal stop and search. We affirm the trial court:

In reviewing an order denying a motion to suppress evidence, this court must determine whether the factual findings of the suppression court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989) (Citations omitted).

The facts adduced at the suppression hearing are as follows. At approximately 11:05 a.m. on July 27, 1989, Allegheny County Police Officers Dean Kaminski and Jeffrey Korczyk were on duty at the Greater Pittsburgh International Airport. The officers were investigators assigned to a unit that attempted to interdict illegal drugs that passed through the airport. Their duties included monitoring “air traffic and passengers arriving from narcotics source cities [Cities and accompanying airports in close proximity thereto from which bulk quantities of drugs are subdivided and distributed to other parts of the country. New York City is considered a source city; Newark International Airport is considered a source city airport because of its proximity to New York City]____” N.T., 1/11/90, at 3. The officers had been assigned to the investigation of drug offenses for three and one-half years and had received specialized training in airport drug detection. Id. at 4. They ordinarily utilized a “drug courier profile” (characteristics that differentiate certain passengers from the majority of others and that may or may not be indicative of drug trafficking; examples of characteristics focused upon were manner of dress, limited luggage, tickets paid for in cash, etc.) in their attempt to ferret out drug couriers.

On this particular morning the officers were monitoring flights arriving from Newark. They noticed a woman disembarking from the airplane; she was the only female passenger on the flight. The majority of the other passengers seemed to be business travelers who were dressed in business suits. Id. at 20. Appellant was dressed in a worn and soiled tank-top and casual slacks. Her hair was styled in long braids. The carry-on bag that she possessed appeared new in contrast to her worn clothing. Id. at 8. Her appearance was “disheveled.” Id. She made a “concerted” stop at the bottom of the ramp and scanned the gate area. Id. at 9.

The officers noticed that appellant had no identification attached to her carry-on bag; that fact struck them as unusual since most passengers attach identification in case the bag is misplaced. Id. at 9-10. The officers followed her as she walked through the airport. Officer Kaminski stated, “[S]he almost broke into a jog going to ... the gate that commuter flights leave from.” Id. at 10. As the officers observed her check in for a commuter flight they noticed that, “there were no baggage tags on her ticket jacket.” Id. The import of this was that she possessed no luggage other than her carry-on bag. Appellant went into a women’s room for ten minutes. She then made a one and one-half minute telephone call; she never identified herself to the person called, never addressed the person called by name, gave “yes” and “no” answers to the person called and stated that, “I will be there at one-thirty.” Id. at 11. She then took a seat in the center of an empty passenger area.

“At this point, considering all that [the officers] had observed ..., [they] decided to approach her for the purpose of conversation____” Id. at 12. Officer Kaminski stated at the suppression hearing that he, “had some reasonable suspicion [but] there [was] no indication [that appellant was] committing a crime.” Id. at 26. The officers sat to one side of appellant (they did not surround her). They identified themselves as police officers and, “asked her if she would mind speaking to us, and her response was, no, she didn’t mind speaking to us [since], she would have to wait [there] for a while anyhow.” Id. at 12-13. When asked where she had traveled from she stated that she had come from Newark and was en route to Canton-Akron, Ohio. She stated that she had visited relatives in Newark and was returning home. The officers asked if, “she would mind showing [them] her [airline] ticket.” Id. at 13. She replied in the affirmative and complied with the request; the information on the ticket revealed that it was a one-way ticket, paid for in cash that morning and was issued to a T. Richmond (it was later revealed that appellant’s name is Tommie Lidge). The officers asked if appellant had any identification; she replied that she had none. At this point she asked if she had done anything wrong. The officers responded in the negative and explained to her their purpose in and duties while patrolling the airport. They told her that some of her characteristics matched the “drug courier profile” and that this had, “made [them] curious about her travel.” Id. at 14. They asked her, “in light of these observations would she mind if [they] made a search of her bag.” Id. She was told that she could deny permission to search and that if she did the inquiry would end. Her hands began to tremble and her respiration quickened. She indicated that they could search the bag but did not want it done in the center of the lounge.

Officer Kaminski suggested that a corner of the lounge area would offer more privacy; appellant carried the bag over to that corner of the lounge, opened it and began handing the officers the contents. As she handed over a pair of red sweat pants, the last item, her trembling increased. The sweat pants were folded over a solid object, “a parcel eight inches by eight inches by two inches thick completely wrapped in masking tape, a form of packaging that” the officers had observed to contain drugs in prior investigations. Id. at 17. Appellant was given her Miranda rights. She was taken to another gate at the terminal. The contents of the package field-tested positive for cocaine and appellant was again given her Miranda rights; she exercised her rights and would make no comment regarding the drugs. A further search of the bag revealed a one-way ticket from Canton-Akron to Newark two days prior, paid for in cash, in the name of T. Ledge (appellant’s name misspelled); there was also $651.00 in cash.

Appellant did not testify at the suppression hearing; the only two witnesses were the two police officers.

We first address whether the police “illegally stopped” appellant when they sat down beside of her and asked her questions. Appellant avers that the encounter amounted to a seizure or an investigatory detention; she further avers that the police did not possess reasonable suspicion to believe that she may have been involved in criminal activity and therefore the investigatory detention was improper.

The United States Supreme Court has stated that any assessment of whether police conduct amounts to a seizure implicating the Fourth Amendment must take into consideration all of the circumstances surrounding the incident in each individual case. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). Not all intercourse between policemen and citizens involves seizures of persons. Id. Only when the officer, by physical force or a show of authority, has in some way restrained the liberty of an individual may we conclude that a seizure has occurred. Id. A seizure occurs when, in view of all of the circumstances surrounding the encounter, a reasonable person would have believed that she was not free to leave. Id.

There was clearly no seizure involved in the instant case. Appellant was seated in the center of the passenger area of a gate at an airport. The officers sat to one side of appellant, identified themselves and politely asked her if she would mind speaking to them. The record does not indicate that appellant was restrained by physical force or a show of authority. She voluntarily answered their questions. Hence, no seizure occurred during the encounter between appellant and the police.

We now address whether appellant was subjected to an investigatory detention.

A police encounter with a suspect may properly be characterized as a mere encounter, an investigative detention, a custodial detention, or a formal arrest____ A ‘mere encounter’ (or request for information) need not be supported by any level of suspicion, but it carries no official compulsion to stop or to respond____ An ‘investigative detention’ must be supported by reasonable suspicion; it subjects the suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest____ A ‘custodial detention’ must be supported by probable cause; it is deemed to arise when the conditions and/or duration of an investigating detention become so coercive as to be the functional equivalent of arrest____ Formal arrest re-

quires probable cause, and needs no further definition. Commonwealth v. Douglass, 372 Pa.Super. 227, 238-39, 539 A.2d 412, 417-18 (1988) (Citations omitted).

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual ... in [a] public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen____ If there is no detention-no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed.... [Pursuant to Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968),] certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime____ [Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop____ Temporary detention for questioning on less than probable cause [is justified] where the public interest involved is the suppression of illegal transactions in drugs or of any other serious crime....

Florida v. Royer, 460 U.S. 491, 497, 498-99, 103 S.Ct. 1319, 1323, 1324-25, 75 L.Ed.2d 229 (1983). If an airline traveler proceeds under an assumed name, pays cash for a one way ticket, fails to place proper identification upon luggage, appears nervous and is casually dressed, the police trained in drug procedures have adequate grounds to suspect that the person may be carrying drugs. Florida v. Royer, supra. In such a case, the police may conduct an investigative detention in order to verify or dispel their suspicions. Id.

First, we find that the interaction between appellant and the police did not rise to the level of an investigative detention; appellant was not detained in any manner. She engaged in a consensual conversation in a public place with the police officers and, as will be explained, infra, voluntarily consented to a search of her carry-on bag. Under these circumstances, the police did not need to possess an articulable suspicion that appellant was committing a crime. Therefore, none of appellant’s Fourth Amendment rights were violated by the encounter.

Arguendo, even if appellant’s interaction with the police amounted to an investigative detention, we would still find that none of appellant’s Fourth Amendment rights had been violated. Appellant’s manner of dress and appearance, the fact that she arrived from Newark (a source city), the absence of any identification upon appellant’s carry-on bag, the absence of any other luggage, the one-way airline ticket paid for in cash, appellant’s lack of identification (the police did not determine until later that appellant was traveling under an assumed name) and her nervousness all combined to provide the police with an articulable suspicion that appellant was carrying drugs. Therefore, an investigative detention would have been permissible.

Appellant’s final claim is that she did not voluntarily consent to a search of her carry-on bag.

“[Wjhere the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given ____” Id. If a person is involved in a permissible police encounter in a public place or a justifiable Terry-type detention, the person’s consent, if voluntary, to search his or her luggage would allow the products of the search to be admissible against that person. Id.

We find that the Commonwealth has proven that appellant voluntarily consented to a search of her carry-on bag. We have already determined, supra, that the initial encounter between appellant and the police was proper. At the point immediately prior to the officers’ request to search the bag appellant was aware of the officers’ identity, function at the airport, belief that appellant possessed some of the characteristics of a drug courier and suspicion that appellant may have been committing a crime. The officers asked her if, in light of the aforementioned facts, she would mind if they searched her bag. She was told that she possessed the right to deny permission to search and that if she exercised that right the encounter would terminate. Appellant then consented to the search. The uncontroverted facts adduced at the suppression hearing clearly show that appellant did not feel that she was not free to walk away, that she was subjected to any type of coercion or duress or that she was misled regarding the purpose of or circumstances surrounding the encounter with the officers. Hence, appellant clearly voluntarily consented to the search and, therefore, the trial court properly refused to suppress the cocaine discovered in her carry-on bag.

Judgment of sentence affirmed.

BECK, J., concurs in the result.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    582 A.2d 387
    COMMONWEALTH of Pennsylvania v. Francine KREISER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1990.
    Decided Nov. 5, 1990.

      Thomas A. Thornton, Harrisburg, for appellant.
    Kathy G. Wingert, Deputy Dist. Atty., Harrisburg, for Com., appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

In this case, appellant appeals from the judgment of sentence rendered by the Dauphin County Court of Common Pleas, following her conviction for unlawful delivery of a controlled substance, cocaine. We affirm.

The charges against appellant arose out of her sale of .88 grams of cocaine to a confidential police informant in front of the Mansberger Elementary School. After appellant’s arrest, District Justice Judy held a preliminary hearing on March 20, 1989, and bound over the charge for court. The Commonwealth filed a criminal information on May 31, 1989, charging appellant with unlawful delivery of cocaine in front of Mansberger Elementary School.

On August 7, 1989, appellant appeared before the Honorable Sebastian Natale, and entered a plea of guilty. Immediately thereafter, the judge ordered a county pre-sentence investigation. After the pre-sentence investigation was complete, Judge Natale sentenced appellant to fifteen (15) to thirty (30) months in a state correctional institution. The judge stated: “Miss Kreiser, I want you to know that the Court could have sentenced you under the enhanced sentencing procedures for a minimum of not less than 18 months to 51 months, and the Court has elected to impose a minimum of 15 months. I want you to understand that.” Appellant answered, “I understand.” (N.T. sentencing, 12.)

Appellant filed a motion to quash enhanced sentencing on August 8, 1989. In that motion, appellant alleged that she was entrapped into making the sale in front of the school, and that the statute under which she was convicted, Act 31 of the Session of 1988, Section 6314(b)(3), was void for vagueness. In response, the Commonwealth answered that it was not seeking mandatory sentencing under Act 31, but was pursuing an enhanced sentence under the provisions of 204 Pa.Code § 303.9. The Commonwealth also answered that entrapment is an affirmative defense at trial, and that appellant had waived that defense by pleading guilty. The Court therefore denied the motion to quash enhanced sentencing, and appellant then filed a notice of appeal with the Superior Court.

On appeal, appellant argues that the trial court abused its discretion by imposing an enhanced sentence without a hearing. According to appellant, the Commonwealth must prove, by a preponderance of the evidence, that the defendant delivered a controlled substance within 1,000 feet of an elementary school. Appellant states that at a hearing, she could have proved that the transaction took place at the behest of a paid police informant, and that she was entrapped into the provisions of § 303.9(c)(2). Furthermore, appellant argues that the Commonwealth should have given notice before asking for enhanced sentencing.

Sentencing is a matter vested in the sound discretion of the trial court, and the lower court’s judgment of sentence will not be disturbed absent an abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987), alloc. den. 516 .Pa. 632, 533 A.2d 91 (1988). To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. When reviewing sentencing matters, we must accord the sentencing court great weight, since it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall nature of the crime. Commonwealth v. Fries, 362 Pa.Super. 163, 167, 523 A.2d 1134, 1135 (1987), alloc. den. 515 Pa. 619, 531 A.2d 427 (1987). The facts of this case do not suggest abuse of discretion.

No case authority exists to clarify § 303.9(c)(2). Thus, in order to understand the events in the instant case, it is necessary to examine cases construing 204 Pa. Code § 303.4(a), which begins in the same manner as § 303.9(c)(2):

(a) When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301, during the commission of a current conviction offense, at least 12 months and up to 24 months shall be added to the guidelines sentence range which would otherwise have been applicable.

204 Pa.Code § 303.4(a).

Defense counsel contends that the language “when the court determines” requires a hearing, and that therefore, the analogous language in § 303 also requires a hearing. A review of case law belies that contention. For example, in Commonwealth v. Septak, Pa.Super., 359 Pa.Super. 375, 518 A.2d 1284 (1986), the Superior Court examined whether notice must be given to a defendant concerning the enhanced provisions of the sentencing guidelines. The Court stated: “We know of no case law that requires that a defendant be advised of the specific sentencing guidelines which are applicable to his case prior to the court’s acceptance of his guilty plea, nor such notice specifically required by statute.” Id. 518 A.2d at 1287.

The Septak Court went on to distinguish enhanced sentencing guidelines from mandatory sentencing provisions. The Court stated that, under an enhanced sentence, the lower court still has discretion concerning penalties. The Court continued: “We refuse to require that a defendant must be advised of the suggested minimum sentences set forth in the sentencing guidelines.” Id. at 1287. (See also Commonwealth v. Pokorny, 360 Pa.Super. 384, 520 A.2d 511 (1987), affirming lower court refusal to apply enhancement provision of sentencing guidelines to appellant’s sentence.)

Our review of the foregoing case law leads us to conclude that appellant’s claim that a hearing must be held to determine the applicability of 204 Pa.Code § 303.9 is without merit. Under analogous provisions, there is no requirement that the judge hold any hearing on the issue of applicability, as long as the relevant facts are placed on the record, and the defendant pleads guilty to these events. The record reveals that the latter requirements were met in the present case.

Appellant came before the Honorable Judge Na-tale and pleaded guilty to unlawful delivery of a controlled substance in front of the Mansberger Elementary School. She does not deny her guilt, but claims entrapment. Appellant overlooks the fact that entrapment is an affirmative defense at trial and is not part of the sentencing process. Appellant's argument is thus without merit. Similarly, the Commonwealth does not have to give a defendant notice of the sentences he could receive under the sentencing guidelines. That function belongs to defendant’s counsel. The Commonwealth must give notice only in cases of mandatory sentencing.

We are satisfied from our review of the record that no abuse of discretion occurred in this case, and that the trial court imposed an appropriate sentence.

Judgment of sentence affirmed.


author: OLSZEWSKI, Judge.

text:
    582 A.2d 390
    AMERICAN NUCLEAR INSURERS, An Association by the Insurance Company of North America, Trustee Ad Litem and Lumbermen’s Mutual Casualty Company, Appellants, v. METROPOLITAN EDISON COMPANY and Jersey Central Power & Light Company and GPU Nuclear Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1990.
    Decided Nov. 9, 1990.

      Stephen A. Cozen, Philadelphia, for appellants.
    Steven E. Greenbaum, Reading, for appellees.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   OLSZEWSKI, Judge.

This is an appeal by American Nuclear Insurers (ANI) and Lumbermen’s Mutual Casualty Company (Lumbermen’s) from an order rendered by a three-judge panel of the Court of Common Pleas of Dauphin County, Pennsylvania. The order appealed from granted appellees’ preliminary objections to appellants’ declaratory relief action, dismissed appellants’ declaratory relief petition, relinquished jurisdiction and transferred the matter to the Supreme Court of the State of New York. The sole issue before this Court is whether the panel abused its discretion in dismissing appellants’ petition for declaratory judgment, concluding, inter alia, that appellants sought such relief in anticipation of commencement of suit by appellees, their insureds. We hold that the court below did not abuse its discretion, and affirm its dismissal of appellants’ petition for declaratory relief.

This case arises out of an insurance claim by appellees, co-owners of Three Mile Island (TMI) Nuclear Facility, against appellants, their property insurers, for damage caused by corrosion of several heat éxchanger tubes in two of the facility’s steam generators, which was discovered in the fall of 1981. Following an investigation and by letter dated September 20, 1985, appellants allegedly denied the claim on the basis that appellees’ insurance policy did not cover losses caused by such corrosion. For more than three years following this letter, the parties entered into a series of letter agreements extending appellees’ time in which to file proofs of loss and to institute suit for damages. By letter dated October 6, 1988, the parties agreed that appellees would be able to file suit until April 1, 1989. Appellees’ proofs of loss statement was presented to appellants on October 31, 1988.

The record indicates that on March 22, 1989, just nine days before appellees would be barred from filing suit, appellants filed a declaratory judgment action to determine whether appellees’ loss was covered under the policy. On the following day, March 23, 1989, appellants sent appellees notification that their proofs of loss statement filed on October 31, 1988, in addition to previous documents submitted under the policy, “are hereby rejected,” and their previous denial of liability “is reconfirmed.” After receiving this notification of claim denial from appellants on March 28,1989, appellees, on March 31,1989, filed a lawsuit in the state courts of New York asserting breach of contract against appellants for denial of the claim. The New York Court acknowledged jurisdiction but stayed further action pending the disposition of the declaratory judgment action in Pennsylvania.

On July 3, 1989, appellees filed preliminary objections to the declaratory judgment petition, arguing that the lower court should decline to accept jurisdiction because: (1) appellants (insurers) brought suit in anticipation of appellees’ (insureds’) action for damages; (2) the insurance companies sued prematurely and sought an advisory opinion through their petition; and (3) the pending New York action was the better, and only, vehicle for the resolution of the complex factual issues involved.

In response to appellees’ preliminary objections, by order and opinion dated February 28, 1990, the Pennsylvania trial court dismissed appellants’ declaratory judgment petition, relinquished jurisdiction and transferred the matter to the Supreme Court of New York. The trial court supported its refusal to entertain jurisdiction over the case by noting that the exercise of jurisdiction under the Declaratory Judgment Act is within the discretion of the court. With this in mind, the court declined jurisdiction, holding: (1) the action was filed by insurers (appellants) in anticipation of insureds (appellees) bringing suit; (2) there was then pending another action involving the same set of circumstances brought by the real parties seeking recovery; and (3) a full trial would provide a better vehicle to resolve the complex factual issues involved.

The long-standing rule has been that declaratory judgments are not obtainable as a matter of right. Whether the lower court should exercise jurisdiction over a declaratory judgment proceeding is a matter of sound judicial discretion. Clark, Inc. v. Township of Hamilton, 128 Pa.Commw. 31, 38, 562 A.2d 965, 968-969 (1989), citing State Farm Mut. Ins. Co. v. Semple, 407 Pa. 572, 180 A.2d 925 (1962); Smith v. County of York, 37 Pa.Commw. 47, 388 A.2d 1149 (1978), cert. denied, 441 U.S. 908, 99 S.Ct. 1999, 60 L.Ed.2d 377 (1979); Presbyterian-University of Pennsylvania Medical Center v. Keystone Ins. Co., 251 Pa.Super. 71, 380 A.2d 381 (1977). See also, State Automobile Insurance Association v. Kuhfahl, 364 Pa.Super. 230, 233, 527 A.2d 1039, 1040 (1987), appeal denied, 517 Pa. 618, 538 A.2d 500 (1988).

In Pennsylvania, declaratory relief is unavailable when it is sought merely in anticipation of an action at law by another party. Commonwealth, Department of General Services v. Frank Brisco Co., 502 Pa. 449, 458-459, 466 A.2d 1336, 1340-1341 (1983); Penox Technologies, Inc. v. Foster Medical Corp., 376 Pa.Super. 450, 454, 546 A.2d 114, 115 (1988). Appellants argue that the lower court erred in finding that they (appellants) filed for declaratory relief in anticipation of appellees’ action at law and, therefore, abused its discretion in dismissing appellants’ petition. We disagree.

Whether appellants filed the petition for a declaratory judgment in anticipation of appellees’ action at law is a factual determination. It is well established that:

When we review a decision by a lower court, we must accept findings of fact supported by the evidence, for the lower court is in a much better position than we are to resolve conflicts in the evidence and issues of credibility. However, we are not bound to accept findings not supported by the evidence; nor are we bound to accept the lower court’s inferences from the evidence, or its conclusions of law.

Interest of Miller, 301 Pa.Super. 511, 515-516, 448 A.2d 25, 27 (1982), citing Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981); Hankin v. Hankin, 279 Pa.Super. 179, 420 A.2d 1090 (1980), rev’d on other grounds, 302 Pa.Super. 295, 448 A.2d 1049 (1982).

Appellants argue that the lower court erred as a matter of fact in finding that the declaratory judgment action was filed in anticipation of appellee’s suit against them. Appellants vehemently argue that the insurance claim was officially denied by the September 20, 1985 letter to appellees. It follows, according to appellants, that either party was free to file suit at any time after this denial. Therefore, appellants contend, their petition for a declaratory judgment on March 22, 1989 was not motivated by an intent to prevent appellees from first bringing suit, because appellees could have brought suit any time after September 20, 1985.

The trial court, although determining that the declaratory judgment petition was filed in anticipation of suit, did not state exactly which facts on the record it relied upon to make such finding. We believe, nonetheless, that the record supports a finding that the claim was not officially denied until March 23, 1989, when appellants sent appellees notification that their proof of loss statement had been denied. The following facts on the record support the finding that the claim was not officially denied on September 20, 1985:

First, appellants, after September 20, 1985, continuously extended appellees’ time in which to submit proofs of loss statements and file suit. By implication, appellants never waived the requirement that proofs of loss be filed. Additionally, affirmative evidence exists which establishes that appellants at all times expected proofs of loss to be filed by appellees. By requiring proofs of loss to be filed, appellants had not officially denied the claim, thereby invoking appellees’ right to file suit. If the September 20, 1985 letter had been an official rejection of appellees’ claim, then appellants’ subsequent receipt of proofs of loss would have been redundant and unnecessary.

If [the insurer’s] representative ... states that it will not pay any loss, what would be the use of filing a Proof of Loss? A policyholder need not do a vain thing, nor is he prejudiced for failure to observe a technicality, the performance of which would be useless.

Fedas v. Ins. Co. of the State of Pennsylvania, 300 Pa. 555, 560, 151 A. 285, 287 (1930). Therefore, by requiring that proofs of loss be filed, it is evident that appellants did not consider them to be useless or unnecessary, but obviously intended that the claim would be further investigated upon their receipt.

Second, the early extension letters, from December 16, 1985 through October 27, 1986, granting extensions of appellees’ deadlines, expressly state that “the Insurers neither admit nor deny liability for the indicated claim.” (Emphasis added.)

Third, the record indicates that appellants themselves, in actuality, were not able to define the significance of the September 20, 1985 letter with respect to the subsequent proofs of loss requests, as demonstrated by deposition testimony of Mr. Erickson, a representative of ANI:

Q. If the proof of loss is not necessary to act as a precondition to the filing of suit, why do you want it?
A. Because the policy requires it.
Q. Policy also requires it as a pre-condition of suit but you apparently no longer wanted that. What other reason is there for a proof of loss as of October 18, 1988 in this case?
A. If they wanted to present a claim, then they would have to do it in the form of a proof of loss.
Q. Hadn’t they already presented a claim?
A. No.
Q. Then what was denied?
A. What was denied? Very clever.
Q. Thanks.
A. I guess what was denied was the opportunity to present a claim. I have no idea.

Given these above facts, the trial court may have properly determined that appellees’ claim was not officially denied until March 28, 1989, when appellees received a declination of coverage notice following their filing of proofs of loss.

Appellees were not, by the terms of the policy, permitted to institute suit until they received official notice of denial of the claim or until sixty days after appellants received their proofs of loss. Therefore, appellants’ declaratory judgment petition, which was filed on March 22, 1989, in effect blocked appellees from being the first to file suit on their claim, as appellees did not receive notice of their claim denial until six days after the declaratory judgment petition had been filed.

Even if it were true that appellees’ claim was officially denied on September 20, 1985, appellants have, in any event, failed to belie the fact that on March 22, 1989, when the petition for declaratory judgment was filed, appellants had full knowledge that appellees’ deadline to bring suit was nine days away, on April 1, 1989. Appellants would like this Court to believe that when they filed the petition, they did not expect that appellees would file suit by April 1, 1989. Appellants argue that on March 22,1989, the petition was filed in order to relieve themselves of the continuing “uncertainty and insecurity” concerning their rights under the policy. (Appellant’s brief at 24-25.) This argument implies that appellants did not expect appellees to file suit prior to April 1, 1989, because if they did expect appellees to sue, then they would have no reason to feel uncertain and file a declaratory judgment petition because their rights would soon be determined in the suit brought by appellees. Even if appellants honestly, however unrealistically, did not expect appellees to file suit prior to April 1st, then filing a declaratory judgment petition would have been senseless and financially risky. This is because appellees would be barred from filing suit after April 1, 1989. If appellants really believed that appellees would not file suit, then the most tactical decision would have been not to file the petition and wait for April 1st to pass, thereby avoiding liability entirely. Otherwise, appellants would have been unnecessarily taking the very expensive risk that the declaratory judgment panel would rule against them. It is clear that appellants, in filing the declaratory judgment petition on March 22, 1989, were well aware that appellees would not forego a claim in excess of 31 million dollars by failing to sue prior to April 1, 1989.

Additionally, appellants contend that the lower court’s ruling constitutes an abuse of discretion as a matter of law in failing to weigh forum non conveniens considerations in holding that appellants’ petition was anticipatory. However, we are unable to cite any authority for the proposition that a declaratory judgment cannot be dismissed as anticipatory unless there is also a finding of forum non conveniens. Appellants cite to Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599 (5th Cir.1983), to support their argument; however, nowhere in that case does the court hold that a declaratory judgment petition may not be dismissed as anticipatory absent a finding of forum non conveniens. To the contrary, the court determined that the district court did not abuse its discretion in finding the declaratory judgment to be anticipatory in nature, based only on the fact that the carrier denied the insured’s claim on the same day that the petition was filed and after the carrier had granted the insured an extended time in which to file suit. Id. at 602. The court then discussed the forum non conveniens doctrine as a separate ground for dismissal of the declaratory judgment petition. See also, Puritan Fashions at 602 n. 3; Pacific Emp. Ins. Co. v. M/V Capt. W.D. Cargill, 751 F.2d 801, 804 (5th Cir.1985).

Appellants are correct, however, in the assertion that anticipatory declaratory judgment actions are disfavored because they are an aspect of forum-shopping and are an attempt to gain some type of improper procedural advantage. See, Puritan Fashions at 602 n. 3; Pacific Emp. Ins. Co. at 804. Nonetheless, we disagree with appellants’ contention that they did not file the declaratory judgment petition in an attempt to gain an improper procedural advantage. As discussed above, the petition was filed nine days before appellees’ would be forever barred from filing suit. If appellants’ petition was filed merely in the course of seeking a declaration of their rights under the policies, they could have easily waited for appellees to file suit within the next nine days. There was simply no legitimate reason for filing the petition other than to prevent appellees from choosing a forum in which to litigate their suit.

We find that the lower court’s conclusion that the petition for a declaratory judgment was filed in anticipation of appellees’ bringing suit is supported by the record. The fact that appellants filed the declaratory action in a matter of days before appellees’ opportunity to file an action at law was to expire supports the trial court’s conclusion. Accordingly, the lower court did not abuse its discretion in declining jurisdiction on this basis.

Order affirmed.

      . The policies included the following provisions:
      WHEN LOSS PAYABLE. The amount of loss for which the Insurers may be liable shall be payable sixty (60) days after proof of loss, as herein provided, is received by the Insurers____
      SUIT. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve (12) months next after inception of the loss.
      These provisions were at no time waived by either party, as evidenced by a letter dated October 18, 1988 from ANI stating:
      Moreover, by virtue of agreeing to, and/or conducting such a meeting the Nuclear Insurers do not intend thereby to waive, modify, or otherwise amend their presently stated positions with regard to the requirements for the filing of Sworn Statements in Proof of Loss and/or the institution of suit.
      Therefore, as the proof of loss was received on October 31, 1988, appellants would have become responsible to pay the loss on December 31, 1988, sixty days after their receipt of the proofs of loss. However, by letter of December 22, 1988, appellants requested an extension of their time to respond to the proofs of loss. On December 28, 1988, appellees granted appellants another 30 days, until January 30, 1989, to respond to the proofs of loss. In early January, 1989, the parties engaged in settlement negotiations and discussed the possibility of an alternative dispute resolution should negotiations fail. To foster negotiations, appellees agreed to further extend the time for appellants to respond to the proofs of loss until February 27, 1989 and later another extension was granted until March 28, 1989. However, appellees’ deadline for instituting suit was not changed by these extensions and remained at April 1, 1989. (Appellants had previously set the deadline for instituting suit at April 1, 1989 by letter dated October 6, 1988.)

      . Appellees were precluded by the terms of the insurance policy from filing suit prior to complying with the requirements of the policy. One of these policy requirements was that a loss would not become payable until sixty days after proof of loss is received by the insurers (appellants). See n. 1. Appellees gave appellants numerous extensions in which to respond to the proofs of loss filed on October 31, 1988, the last of which was to expire on March 28, 1989. Hence, appellees would not be permitted to file suit until receiving appellants’ response to appellees’ proofs of loss (or until March 28, 1989), which was in fact received on March 28, 1989. Also, the record indicates that at the time they filed the declaratory judgment petition, appellants knew that appellees had prepared a complaint and were ready to sue in the event the dispute could not be resolved. It follows that appellants sought a declaratory judgment on March 22, 1989, prior to giving appellees formal notice of the claim denial, with the knowledge that appellees had only until April 1, 1989, to commence suit.

      . See, 42 Pa.C.S.A. § 7537.

      . See letter of October 18, 1988 from ANI stating:
      Moreover, by virtue of agreeing to, and/or conducting such a meeting the Nuclear Insurers do not intend thereby to waive, modify, or otherwise amend their presently stated positions with regard to the requirements for the filing of Sworn Statements in Proof of Loss and/or the institution of suit.

        See note 5 below for excerpts of letter agreements from appellants granting an extension of appellees’ deadlines (to file proofs of loss and institute suit) which expressly waive no rights under the policy and continue to insist on appellees’ compliance with all terms and conditions of the policy. This would implicitly include the requirement that proofs of loss be filed.

      . In the letter agreements of December 16, 1985, March 19, 1986, June 9, 1986 and October 27, 1986 granting extensions of appellees’ deadlines, appellants included the following language:
      The granting of these extensions are subject to the express understanding that the Insurers neither admit nor deny liability for the indicated claim, and that they will insist on compliance by the Insured with all of the terms and conditions of the contracts of insurance, and waive no rights thereunder, except as to the extension of time hereunder granted.
      In the letter agreements of February 12, 1987, April 27, 1987, August 13, 1987, October 30, 1987, April 8, 1988 and October 6, 1988 granting extensions of appellees’ deadlines, appellants substituted the following language in lieu of the above:
      Any extensions of time we have granted in our letters of ... and today’s letter, in no way change, modify, or amend the Pool's position on this loss as stated in Mr. Cozen’s letter of September 20, 1985. The insurers will insist on compliance by the Insured with all of the terms and conditions of the contracts of insurance, and waive no rights thereunder, except as to the extension of time hereunder granted.

      . See n. 1.

      . Because we decide that the trial court did not abuse its discretion in dismissing this anticipatory declaratory judgment action, we need not determine the propriety of the trial court’s remaining grounds for dismissal.


author: HUDOCK, Judge: WIEAND, Judge,

text:
    582 A.2d 648
    In re ESTATE OF Mildred E. HARTMAN, Deceased. Appeal of Floyd HARTMAN. In re ESTATE OF Mildred E. HARTMAN, Deceased. Appeal of Benjamin M. QUIGG, Jr. and Jean F. Doan, Executors of the Estate of Mildred E. Hartman.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed Sept. 10, 1990.
    Reargument Denied Nov. 19, 1990.

      Julia H. McLauaghlin, Philadelphia, for appellant (at 2509) and participating party (at 3037).
    Thomas W. Murrell, III, Philadelphia, for appellants (at 3037) and participating party (at 2509).
    Before WIEAND, McEWEN and HUDOCK, JJ.
   HUDOCK, Judge:

These consolidated appeals are from final orders of the Court of Common Pleas of Montgomery County, one ordering Floyd G. Hartman, (“Hartman”), to vacate the residence owned by the estate of Mildred E. Hartman, and one granting a stay of said order pending appeal. We affirm the order to vacate and vacate the order granting a stay.

Mildred E. Hartman, (the “decedent”), died testate on September 29, 1988, survived by Hartman, her second husband. A codicil to the decedent’s will provided that Hartman was permitted to continue residing in the home owned by the decedent for six months following her death. After the six months had passed, the codicil directed that the house and its contents were to be sold by the executors of her estate, (“the Executors”).

On March 30, 1989, the Executors filed a petition requesting that Hartman be ordered to vacate the premises so that it could be sold in conformity with the instructions in the codicil to the will. On June 19, 1989, a hearing was held on the petition to vacate. As part of their case in chief, the Executors entered into evidence an antenuptial agreement signed by the decedent and Hartman on March 23, 1970. According to this agreement, the parties each waived, relinquished and released all rights against the estate of the other by reason of their marriage. The agreement also explicitly stated that each party had made a complete disclosure to the other of his or her financial condition and that each had the benefit of legal advice prior to its execution. At the hearing Hartman wished to testify that the antenuptial agreement was invalid. The trial court, however, disqualified such testimony pursuant to the Dead Man’s Act, 42 Pa.C.S.A. § 5930.

By Opinion and Order dated August 16, 1989, the trial court held the antenuptial agreement valid and directed Hartman to vacate the property consistent with the dece-' dent’s last will and testament, taking one-half of the proceeds upon the sale of the home. On September 14, 1989, Hartman filed a Notice of Appeal from this Order, as well as an Application for Stay of the Lower Court Order Pending Appeal. On October 11, 1989, the trial court granted Hartman’s Application for Stay. On November 9, 1989, the Executors filed a Notice of Appeal of the October 11 stay order. By stipulation of the parties and approval of this court, the two appeals were consolidated for argument.

Hartman first claims that the trial court erred in upholding the validity of the antenuptial agreement. He claims that the agreement is invalid due to its failure to contain a reasonable provision for him, the lack of full and fair disclosure, the absence of a knowing waiver of statutory rights, fraud, and failure of consideration.

It is well-settled law in Pennsylvania that an ante-nuptial agreement is presumptively valid and binding upon the parties thereto. In re Hillegass Estate, 431 Pa. 144, 150, 244 A.2d 672, 675 (1968). In Hillegass Estate, supra, the Pennsylvania Supreme Court set forth the heavy burden a party seeking to invalidate an antenuptial agreement must carry:

The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the invalidity of the Agreement by clear and convincing evidence that the deceased spouse at the time of the Agreement made neither (a) a reasonable provision for the intended spouse, nor (b) a full and fair disclosure of his (or her) worth.

Id., 431 Pa. at 144, 244 A.2d at 675.

In the recently decided Simeone v. Simeone, 380 Pa.Super. 37, 551 A.2d 219 (1988), app. granted, 522 Pa. 584, 559 A.2d 528 (1989), this court, citing the plurality opinion of the Pennsylvania Supreme Court in Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987), explained that the Hillegass test provides that if either (but not necessarily both) of the above requirements are met the antenuptial agreement is valid. More importantly, in Simeone this court held that the concept of full and fair disclosure encompasses not only disclosure of assets but also disclosure of statutory rights. Thus, to prove the antenuptial agreement invalid in this case, Hartman had the burden of showing by clear and convincing evidence that at the time of the agreement the decedent made neither a reasonable provision for him, nor a full and fair disclosure of her worth and the statutory rights being waived.

The antenuptial agreement at issue did not contain a provision for Hartman; as stated above, the agreement merely stated the parties’ desire to prevent their rights, arising from their marriage, from interfering with their individual properties and their estates. Thus, the antenuptial agreement at issue is valid only if a full and fair disclosure of the decedent’s financial condition and the statutory rights being waived by Hartman was made.

At the June 19 hearing on the petition to vacate, Hartman called the scrivener of the agreement, Benjamin M. Quigg, Jr., Esquire, to testify as his witness. Quigg testified that at a March 10, 1970 meeting prior to the execution of the antenuptial agreement the parties disclosed their assets to one another. Quigg also had prepared a document memorializing his meeting with the parties. This document stated that he had suggested that the parties write down the properties which each had disclosed to the other. While such a writing was never created, each party later signed the antenuptial agreement which clearly stated that “Each has made a complete disclosure to the other of his or her financial condition.”

While disclosure between the parties need not be exact, it must be precise enough so as not to obscure the general financial resources of the parties. Geyer, supra. Hartman alleges that the failure of the parties to reduce to writing their respective financial disclosures clearly and convincingly establishes that no adequate disclosure was made. Such a proposition is not supported by Pennsylvania case law. On the contrary, Pennsylvania cases have found adequate disclosure of assets without their reduction to writing. See, e.g., Nigro v. Nigro, 371 Pa.Super. 625, 538 A.2d 910 (1988); In re Hillegass Estate, supra. Indeed, the Pennsylvania Supreme Court has found adequate disclosure even in situations where, unlike the present case, the agreement does not recite that full disclosure was made. Thus, the antenuptial agreement in the present case provided for a full and fair disclosure of the general finances of the parties.

Hartman next claims a lack of disclosure of the statutory rights which he waived by signing the agreement. The record does not support such an assertion. Rather, the record reflects that the initial draft of the agreement provided for the waiver of statutory rights by only Hartman and not the decedent. Indeed, the March 10 meeting that occurred between Mr. Quigg and the parties was a direct result of Hartman’s insistence that the decedent also waive any rights in his estate. Mr. Quigg also testified that each paragraph of the agreement was reviewed, in layman’s language, with Hartman, including the provision that he would be giving up any rights to his intended spouse’s property. Finally, the fact that Hartman was not represented by independent counsel does not mean that full and fair disclosure was not made. Review by independent counsel is not required. Simeone, supra. Thus, the evidence supports the trial court’s finding that full and fair disclosure was made to Hartman in regard to his statutory rights.

Hartman’s final claim regarding the antenuptial agreement is that it is invalid due to fraud, misrepresentation and failure of consideration. Hartman’s argument is that he was induced into signing the agreement by the decedent’s promise to devise the residence to him. The only evidence of such a promise is contained in the written memorandum prepared by Mr. Quigg the day after the March 10 meeting with the parties. Mr. Quigg testified that the only discussion, as reflected by the memorandum, was that the decedent was considering the possibility that after the passage of time she might consider leaving Hartman a pecuniary legacy or she might consider the possibility of transferring the property to joint names, or she might consider the possibility of leaving it to him in her will. Obviously, this evidence does not clearly and convincingly establish that such a promise was made. The agreement itself clearly recites that there were no collateral promises made as an inducement to execution. The agreement, signed under seal with the intention of being legally binding on the parties, contained the mutual promises of the parties to waive claims in the other’s estate and was thus fully supported by consideration. Thus, the trial court was correct in upholding the validity of the antenuptial agreement in the present case.

Hartman next claims that the trial court erred in disqualifying his testimony pursuant to the Dead Man’s Act, supra. As stated above, Hartman sought at trial to testify against the antenuptial agreement executed with the decedent. He offered to testify that he did not understand the agreement, did not have the opportunity to review it with counsel, was assured contrary to the agreement that he would get the decedent’s house if she died first, and that he did not receive an executed copy of the agreement after appearing before a notary public. Hartman claims that such testimony should have been permitted due to the devisavit vel non exception to the Act, as well as §§ 2209 and 3121 of the Probate, Estates and Fiduciaries Code, (the “Probate Code”), 20 Pa.C.S.A. §§ 101-8815.

The Pennsylvania Supreme Court has consistently held that the Dead Man’s Act precludes testimony by the surviving spouse against antenuptial and postnuptial agreements. In re Robinson’s Estate, 222 Pa. 113, 70 A. 966 (1908); In re Snyder’s Estate, 375 Pa. 185, 100 A.2d 67 (1953); Estate of Kester, 486 Pa. 349, 405 A.2d 1244 (1979). As stated by the Pennsylvania Supreme Court in In re Estate of Stauffer, 504 Pa. 626, 630-31, 476 A.2d 354, 356 (1984), the purpose of the devisavit vel non exception is to allow testimony as to the intent of the testator to be elicited from those who would otherwise be incompetent to testify under the Dead Man’s Act. This exception is usually applied when there are competing claimants to an estate. The exception clearly does not apply in the present case. Hartman did not offer to testify as to the decedent’s testamentary intent, rather the testimony he sought to present concerned the antenuptial agreement, a civil contract entered into with his wife during her lifetime. Testimony regarding a contractual relationship between the decedent and surviving spouse is clearly proscribed under the Dead Man’s Act. Stauffer, supra, 504 Pa. at 632, 476 A.2d at 357.

For this same reason Hartman’s reliance on § 2209 of the Probate Code (“the surviving spouse shall be a competent witness as to all matters pertinent to his rights under this chapter”) and § 3121 of the Probate Code (“the surviving husband or wife shall be a competent witness as to all matters pertinent to the issue of forfeiture of the right of exemption”) is misplaced. As stated above, an antenuptial agreement is a contract. The testimony offered by Hartman concerned the validity of that contract. Hartman’s proffered testimony simply did not deal directly with his right to take an elective share of the estate or the forfeiture of the right of exemption. Thus, neither § 2209 nor § 3121 permit Hartman to testify in the present case.

Having found that the trial court did not err in upholding the validity of the antenuptial agreement or in disqualifying the testimony of Hartman, the Executors’ appeal of the October 11 stay order must now be considered. The decision to grant or deny a stay pending appeal is vested in the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. Insilco Corp. v. Rayburn, 374 Pa.Super. 362, 370, 543 A.2d 120, 126 (1988) citing In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 479 A.2d 940 (1984). For the reasons stated below, we conclude that the trial court abused its discretion in granting the stay.

In Pennsylvania Public Utility Commission v. Process Gas Consumers, 502 Pa. 545, 553, 467 A.2d 805, 808-809 (1983), the Pennsylvania Supreme Court established that a stay may be granted only if: 1) the petitioner makes a strong showing he is likely to prevail on the merits; 2) the petitioner has shown that he will suffer irreparable injury without the requested relief; 3) the issuance of the stay will not substantially harm other parties; and 4) the issuance of a stay will not adversely affect the public interest. Given the above discussion regarding the substance of this appeal, the first criteria was not met. Hartman alleged in the court below that he would be irreparably harmed if he vacated the premises, was successful on appeal, and later regained ownership of the property by charging it against his elective share. Such a conclusion is in error. Even if Hartman was entitled to his elective share, he would not be able to take the property as his share because he never had ownership rights in the property. See 20 Pa.C.S.A. § 2204(c). Additionally, we find that there was substantial harm to the other interested parties since the issuance of the stay precluded the Appellees from selling the property and giving the other heirs of the decedent their rightful inheritance. Finally, the public interests in effectuating the unambiguous testamentary intent of decedents and the timely completion of estate administration was contravened by the grant of the stay in this instance.

The order at No. 2509 Philadelphia 1989, directing Hartman to vacate the residence, is affirmed. The order at No. 3037 Philadelphia 1989, granting a stay of the order at No. 2509 Philadelphia 1989, is vacated.

WIEAND, J. files a concurring opinion.

WIEAND, Judge,

concurring:

In this case, it is the husband who seeks to invalidate an antenuptial agreement on grounds that his wife failed to make full and fair disclosure of her financial condition. Thus, it is now the husband who is attempting to take advantage of a legal principle which was adopted originally to protect women who were, in earlier times, presumed to be the “weaker” partner in marriage. In my judgment, the old rule should now be discarded as having outlived its usefulness, and the courts should apply to antenuptial agreements, irrespective of gender, traditional principles of contract law. Under traditional principles of contract law, a party is bound by the contents of his or her written agreement in the absence of fraud or mistake. I would decide the instant case consistently with suggestions made by Justice Flaherty in his Dissenting Opinion in In re Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987), as follows:

Enlightened thinking has accorded equality between the sexes, and, with that equality, it has become inconsistent to preserve special protections that arose in response to perceived inequalities. Certainly, it is not surprising that persons may attempt to reap the benefits of being “equal,” while asserting the need for special protections in areas where it would be self-serving to assert certain limited inequalities. To enjoy the benefits of being equal, however, without sharing in the burdens thereof, would be unsupportable. In recognition of this, the law has accorded equal rights to all spouses, without reference to gender. In the context of the instant case, where the validity of an antenuptial agreement is at issue, there is no basis for allowing to stand an implicit presumption that spouses are of unequal status or not knowledgeable enough to understand the nature of the contracts they enter. If, in fact, there is fraud, misrepresentation, or overreaching, then traditional principles of contract law provide an adequate remedy.
[The majority applies a different rule.] Instead of applying the traditional rule of contract law that binds one to the contents of agreements entered, a contrary rule is applied, which, in effect, binds one only if it is determined that the terms, and effects, of the agreement were fully understood. This is a departure from longstanding, traditional principles of contract law. See Standard Venetian Blind Co. v. American Empire Insurance, 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (failure to read a contract does not warrant avoidance or nullification of its provisions); Estate of Brant, 463 Pa. 230, 235, 344 A.2d 806, 809 (1975); Bollinger v. Central Pennsylvania Quarry Stripping & Construction Co., 425 Pa. 430, 432, 229 A.2d 741, 742 (1967) (“Once a person enters into a written agreement he builds around himself a stone wall, from which he cannot escape by merely asserting he had not understood what he was signing.”); Montgomery v. Levy, 406 Pa. 547, 550, 177 A.2d 448, 450 (1962) (one is legally bound to know the terms of the contract entered). Based upon these principles, the terms of the instant antenuptial agreement should be regarded as binding, without inquiry into whether the significance of the agreement was understood by the party against whom enforcement is sought.

Id. 516 Pa. at 516-517, 533 A.2d at 435.

Until recently, the law was clear that an antenuptial agreement was valid and would be enforced unless there was both a failure to make reasonable provision for a spouse and a failure to make full and fair disclosure of a spouse’s financial condition. See: In re Hillegass Estate, 431 Pa. 144, 244 A.2d 672 (1968). In In re Estate of Geyer, supra, three justices opined that disclosure should include “both the general financial pictures of the parties involved, and evidence that the parties are aware of the statutory-rights which they are relinquishing.” Id., 516 Pa. at 506, 533 A.2d at 429-430 (footnote omitted). Because this was only a plurality view, it did not alter the prior law, as reviewed and articulated in Hillegass.

Despite the fact that Pennsylvania law was controlled by Hillegass, the majority of a panel of the Superior Court, in Simeone v. Simeone, 380 Pa.Super. 37, 551 A.2d 219 (1988), concluded that the Supreme Court had “expanded the concept of full and fair disclosure to encompass, not only disclosure of assets, but also, disclosure of statutory rights.” Id., 380 Pa.Superior Ct. at 43, 551 A.2d at 222. This, in my judgment, was erroneous. The majority in the instant case, although acknowledging that Geyer was a plurality opinion, concludes that the opinion by the Superior Court in Simeone is precedential and must be followed. I disagree. The law in Pennsylvania is that articulated by the Supreme Court in Hillegass. That law was not changed by the Supreme Court in Geyer and could not be changed by the Superior Court, an intermediate appellate court, in Simeone.

According to existing law, the antenuptial agreement in the instant case is valid if reasonable provision was made for appellant or, if not, execution of the agreement was preceded by a full and fair disclosure of his wife’s financial condition. It is clear that reasonable provision was not made for the husband. However, the trial court found that a full and fair disclosure had been made. This finding is supported by competent evidence; and, therefore, the record reveals no basis for disturbing the court’s finding.

For the foregoing reasons, I concur in the result. Whether one measures the antenuptial agreement according to traditional principles of contract law or by the law articulated in Hillegass Estate, supra, it passes muster. In either event, it is unnecessary to determine whether appellant was specifically advised of the statutory rights which he would otherwise have enjoyed in his wife’s estate.

      . In deciding the appropriateness of the stay, this court did not have the benefit of a trial court opinion written pursuant to Pa.R.A.P. 1925(a).


author: POPOVICH, Judge: BECK, Judge,

text:
    582 A.2d 655
    COMMONWEALTH of Pennsylvania, Appellee, v. Eugene DAY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed Sept. 21, 1990.
    Reargument Denied Nov. 27, 1990.

      Paul M. George, Asst. Public Defender, Philadelphia, for appellant.

      Eric Schoenberg, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. After a careful review of the parties’ briefs and the applicable law, we affirm.

The record indicates that sometime prior to April 24, 1987, the appellant Eugene Day was charged with receiving stolen property and theft. Julius Williams, the victim in the instant case, was scheduled to testify against Day regarding those charges. According to Williams, Day threatened him during the time that the charges were pending. N.T., May 3, 1989, at 45-81. Williams testified that Day frightened him with promises of bodily harm and repeatedly stated that he was going to “get him.” Id. at 47. Day denied these allegations. N.T., May 4, 1989, at 139-153.

Day was tried for receiving stolen property and theft on July 30, 1987. He was acquitted of both charges. That same day, he was arrested and charged with terroristic threats and intimidation of a witness. Following a jury trial, Day was convicted of making terroristic threats. He was acquitted of the charge of intimidating a witness. Post-trial motions were denied. Day was sentenced to three years probation. This appeal followed.

Day raises two issues for our review: (1) whether the trial court erred in limiting the admissibility of certain evidence from Day’s first trial and (2) whether Day was denied his right to a public trial when the trial court closed the courtroom during jury instructions.

Day contends that the trial court erred in ruling that the Commonwealth could introduce evidence to show that Williams was a witness against Day in a prior proceeding, but that neither the Commonwealth nor the defense could make reference to the underlying charges, facts of the case, or outcome of the trial. N.T., May 3, 1989, at 30-33. The trial court’s ruling was in response to the following Commonwealth position.

The Commonwealth argued that it needed to show that Williams testified against Day in the first criminal action in order to prove the elements of the instant charge: intimidation of a witness. The Commonwealth asserted that it did not want to confuse or unduly influence the jury; nor did it want to “re-try” the first litigation. Thus, the trial court precluded the entry of all information relevant to the first trial, short of the fact that the first trial occurred. See id. at 31 (“The only issue before the Court and this jury is did he harrass (sic) him. Whether there is merit or not in the case that was brought against your client is immaterial ...”).

Conversely, Day strongly opposed the trial court’s ruling. He posited that his case would be prejudiced if the jurors were not informed of the outcome of the first proceeding because they would be free to surmise that Day was convicted of receiving stolen property and theft. Day suggested that the court issue a cautionary instruction to the jury rather than exclude the evidence altogether. Finally, Day claimed that since he was acquitted after the first trial, Williams had a motive to fabricate his present testimony. He concluded that the jury’s knowledge of the result of the first trial was pertinent because “the outcome of the earlier trial ... was probative of the complainant’s motive for inventing new accusations against [Day] as part of a continuing pattern of harassment by the complainant against [Day].” Appellant’s brief, at 5.

Day’s main concern is that Williams’ testimony exceeded the limiting mandates of the trial court on three occasions. See N.T., August 3, 1989, at 44, 52, 70. He asserts that he should have been permitted to correct the deficiencies in Williams’ testimony by presenting evidence that he was not charged with burglary, was not jailed, and was subsequently acquitted in the first trial. Instantly, the trial court did not change its ruling. Day claims prejudice to his case. We disagree.

There are a number of competing legal propositions in this case which we need to clarify. First, the law is well established that the trial court enjoys broad discretion in admitting or excluding evidence. In Commonwealth v. Meadows, 381 Pa.Super. 354, 553 A.2d 1006 (1989), this Court held that:

[t]he admission or exclusion of evidence is a matter specifically within the discretion of the trial judge, and we will not reverse his decision absent an abuse of that discretion. ‘The test to be applied in determining the admissibility of such evidence involves weighing the inflammatory nature of this evidence against its essential evidentiary value.’

Id., 381 Pa.Superior Ct. at 366, 553 A.2d at 1012 (citations omitted); see also Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985) (the. admission or exclusion of evidence rests within the sound discretion of the trial court); Commonwealth v. Robinson, 332 Pa.Super. 147, 480 A.2d 1229 (1984) (trial court’s decision to admit or exclude evidence will not be disturbed absent an abuse of discretion).

Here, during a motion in limine, the trial judge explicitly set forth the narrow issue to be tried. N.T., May 3, 1989, at 18, 20-22, 29-31. The court clearly stated that “[t]he only issue before the court and this jury is did he harass him. Whether there is merit or not in the case that was brought against your client is immaterial.” Id. at 31. It is apparent, given the number of times that defense counsel renewed his position, that the trial court determined that the underlying facts of the prior case as well as its outcome were immaterial and, in fact, irrelevant to the instant prosecution. We will not disturb the trial court’s decision to exclude this evidence. Commonwealth v. Lane, 492 Pa. 544, 550, 424 A.2d 1325 (1981).

In Commonwealth v. Haight, 332 Pa.Super. 269, 481 A.2d 357 (1984), this Court defined “relevant evidence.” We stated that evidence is relevant if it “logically or reasonably tends to prove or disprove a material fact in issue, or to make such a fact more or less probable, or if it affords the basis for a logical or reasonable inference or presumption as the existence of material fact in issue.” Id. at 271, 481 A.2d at 359. See also Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976), appeal after remand 483 Pa. 195, 394 A.2d 978 (1978). See BLACK’S LAW DICTIONARY 881 (5th ed. 1979) (defines material evidence as “[t]hat quality of evidence which tends to influence the trier of fact because of its logical connection with the issue.”).

In the instant case, evidence that Day was acquitted of the crimes of receiving stolen property and theft is not probative of whether he harassed Williams. Moreover, the record indicates that Williams reported Day’s threats before the first trial commenced; thus, he had no motive at that time to retaliate against Day. See (N.T., May 3, 1989, at 52, 57-67, 73, 75, 78-81). We conclude that the trial court acted within its discretion in disallowing Day’s proposed testimony. See Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984) (trial court has a duty to weigh the value of evidence).

Second, both the Pennsylvania Supreme Court and this Court have held that evidence of a prior criminal action against a defendant is admissible for the purpose of proving an element of a presently-charged crime. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Markle, 245 Pa.Super. 108, 369 A.2d 317 (1976). See also Commonwealth v. Young, 321 Pa.Super. 553, 468 A.2d 1127 (1983) (the Commonwealth does not have to try its case in a vacuum). The instant case falls squarely within the purview of Young. In that case, this Court stated:

The shooting of Jefferson [the complainant] and the bringing of criminal charges against appellant because of the shooting were both relevant and material to prove the charge that appellant had attempted to intimidate the victim thereof. As such, the evidence of the earlier shooting was properly received. (Citations omitted). The Commonwealth was not required to try its case in a vacuum; It could show not only that Jefferson had been the victim of a crime but also that he had been in possession of relevant information concerning the crime when an attempt was made to intimidate him.

Id., 821 Pa.Superior Ct. at 556, 468 A.2d at 1128. Since we find that the holding in Young is applicable to the instant case, we conclude that the trial court did not err in permitting evidence of Day’s prior trial. Furthermore, we do not find that the trial court abused its discretion in limiting the discussion of the prior trial to the fact that the trial occurred and that Williams was a witness therein.

Third, the law is clear that the fact-finder is deemed to be in the best position to assess the credibility of a witness and to determine the weight of the evidence. Commonwealth v. Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1104-05 (1984); Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1113 (1981). We will not engage in a reevaluation of the testimony of witnesses found credible by the finder of fact. Commonwealth v. Parker, 387 Pa.Super. 415, 421-22, 564 A.2d 246, 248 (1989). Moreover, it is within the province of the trier of fact to believe all, part or none of the evidence presented at trial. Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984).

We have thoroughly reviewed the trial transcripts in the instant case. When evaluated in context, it is clear that the jury had ample testimony to consider from both the Commonwealth and the defense relative to the issue of whether Day threatened Williams. Day testified on his own behalf, and the jury was free to assess his credibility and to weigh his testimony. Williams also testified and presented a number of witnesses to corroborate his story.

After reading the trial transcripts, we hold that, even in spite of the trial court’s rulings, Williams’ passing references to the contents of Day’s prior trial were insignificant. In other words, we cannot say that the trial court erred in disallowing Day to introduce other evidence about the first trial in light of Williams’ comments, because, in addition to the foregoing discussion, any error that may have been caused by Williams’ fleeting remarks was harmless. See Commonwealth v. Bonace, 391 Pa.Super. 602, 607, 571 A.2d 1079, 1082 (1990) (“Mere ‘passing references’ to prior criminal activity will not necessarily require reversal unless the record illustrates definitively that prejudice resulted from the reference.”); Commonwealth v. Terry, 513 Pa. 381, 403, 521 A.2d 398, 409 (1987) (“Under our harmless error test, an error is harmless if it does not prejudice the defendant, or the effect on the jury is minimal.”). There is no reason that the facts of Day’s prior trial would have (or should have) entered into the jury’s deliberations in the present case. Additionally, the trial judge issued curative instructions after the infractions. See Commonwealth v. Gbur, 327 Pa.Super. 18, 24, 474 A.2d 1151, 1154 (1984) (“prompt and adequate cautionary instructions can cure what might otherwise be reversible error.”). We hold that the evidence supported the jury’s verdict in this case, and we do not find that Day was prejudiced merely because the trial court precluded the jury from knowing the underlying facts and outcome of his first trial.

Day also alleges that he was denied his right to a public trial because the trial court closed the courtroom doors during the jury charge. Day correctly states that “even if not absolute, this right of public access during all phases of a trial is great, and can be restricted only in the most limited circumstances.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982); Commonwealth v. Johnson, 309 Pa.Super. 367, 377-78, 455 A.2d 654 (1982). Appellant’s brief, at 32-33. Notably, the instant case reflects one of those circumstances.

Here, the court prevented ingress and egress during the jury instructions. However, the court did not instruct those already present to leave the courtroom. Additionally, the court did not prevent anybody from entering the courtroom before the instructions commenced. Since the court did not fully exclude the public, nor deny those present from hearing the proceedings, there was no violation of Day’s constitutional right to a public trial.

In Commonwealth v. Bullock, 384 Pa.Super. 269, 558 A.2d 535 (1989), this Court addressed the instant issue. We stated:

Appellant’s final argument is that he was denied his right to a public trial by the trial court’s refusal to allow spectators to enter or exit the courtroom during the court’s charge to the jury. In response to this claim, the trial court stated:
‘The doors of the courtroom squeak audibly on opening and closing causing a distraction. We believe we have the duty and discretion to protect the proceeding from interruptions. (Citations omitted). Moreover, our order did not exclude the public; those that were already inside the courtroom could remain; those that were not were not precluded from entering before the charge. During the charge a court officer was posted outside to admit any member of the public that had immediate business before the Court. The closing of the court was brief and reasonable under the circumstances, far from the hyperbolized complaint that defendant was denied a public trial. The witnesses, defendant’s family and friends and some spectators, as well as the jury, provided the elements of a public trial. The trial remained a public one at all times.’ Trial court opinion at 9-10.
Members of the public were free to remain in the courtroom during the court’s charge. Thus, the protections guaranteed by the right to a public trial were not offended, and we reject appellant’s claim.

Id., 384 Pa.Superior Ct. at 282-83, 558 A.2d at 541-42. We find Bullock to be controlling. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting.

I conclude that the trial judge abused his discretion in not permitting appellant Eugene Day to cross examine Commonwealth witness Julius Williams regarding the prior trial. I therefore dissent.

Appellant, who in the instant case was charged with intimidating a witness and terroristic threats, sought to cross examine Williams in this second trial regarding .the facts of the first trial in order to show Williams’ motive for giving false testimony. In the first trial appellant was acquitted of the charges of theft and receiving stolen property. Williams was the complaining witness in both trials. The majority addresses this argument as follows:

Day argues in his brief that the outcome of the first trial was relevant to his defense; to wit, that Day’s acquittal (or William’s supposed anticipation of an acquittal) motivated Williams to press the instant charges. See Appellant’s brief, at 25, 27-28. He theorized that Williams fabricated the threats in an effort to avenge his feelings of dissatisfaction with the outcome of the first trial. While we recognize that evidence of motive is always admissible, Commonwealth v. Jackson, 336 Pa.Super. 609, 622, 486 A.2d 431, 438 (1984), we fail to see how Williams was prompted to file threat and intimidation charges against Day as a result of his disappointment after the first trial, where the reports were lodged before the first trial began.

Op. at 406, n. 7.

The majority correctly notes that appellant’s reason for wanting to cross-examine Williams about the first trial was to show the reasons why Williams as complainant initiated the second trial. However, a careful reading of the record reveals that appellant sought to show that, in addition, he wanted to cross-examine Williams to show his bias in the content of his testimony in the second trial. Appellant argues in his brief that he was “entitled to explore whether [Williams’] anger or dissatisfaction with the results of the earlier case caused the complainant to magnify or embellish his accusations at trial; whether, despite the verdict, he still believed that appellant was guilty of the other charges and should be punished, or whether he was influenced by any lingering ill feelings toward appellant as a result of the acquittal.” Brief of appellant at 27-28. Appellant claims that cross examination about the prior trial would show that Williams was motivated in both the prior and instant trial by jealousy and desire for revenge against Day for his involvement with a woman. I therefore conclude the trial judge erred in limiting Day’s cross-examination of Williams to preclude this inquiry.

Criminal defendants have a constitutional right to cross examine witnesses against them. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Cross examination may be employed to test a witness’ story, impeach credibility, and to establish a witness’ motive for testifying. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The trial judge is not without discretion in this area, however, and he or she may limit cross-examination as to motive if the attorney is merely engaged in a baseless “fishing expedition.” Commonwealth v. Butler, 367 Pa. Super. 453, 457, 533 A.2d 105, 107 (1987), appeal granted, 520 Pa. 595, 552 A.2d 249 (1988); Commonwealth v. Ross, 345 Pa.Super. 571, 498 A.2d 972 (1985). Appellant was not on a mere “fishing expedition,” but asserted a valid basis for desiring to cross-examine Williams regarding the prior trial.

In Commonwealth v. Robinson, 507 Pa. 522, 528, 491 A.2d 107, 110 (1985), the Pennsylvania Supreme Court reiterated the settled rule that cross examination for the pupose of showing motive to give false testimony is a proper method of impeachment. Robinson involved a landlord who testified against two of her tenants in a trial for theft. The case arose out of a bitter dispute between the parties during the course of which the landlord had shut off the utilities, the tenants accused the landlord of stealing from them, and they withheld their rent. The dispute culminated in the landlord’s conviction for aggravated assault for throwing lye on one of the tenants. The tenants moved out of the apartment, and the landlord filed charges with the police against them for stealing items from the apartment when they moved. Id., 507 Pa. at 532, 491 A.2d at 109. At her trial for theft, Robinson, one of the tenants, sought to cross examine the landlord regarding the dispute, including the landlord’s prior conviction for aggravated assault, in order to establish a motive on the part of the landlord to lie. The trial judge would not allow cross examination in any of these areas. Id.

The Supreme Court held that precluding this inquiry was error because the defendant was entitled to cross examine the witness for the purpose of showing a motive to give false testimony. The Court stated that the disallowance of this type of cross examination is particularly prejudicial when, as in Robinson, the evidence consisted of testimony in which the witnesses on the two sides presented conflicting versions of the facts, and the outcome, therefore, depended on the credibility of the witnesses. Id., 507 Pa. at 534, 491 A.2d at 110.

I find the present case to be analogous to Robinson. The parties have an antagonistic relationship that reaches beyond the instant dispute. The nature and history of this relationship, as in Robinson, is a proper area of impeachment as it is relevant to establishing a motive on the part of the witness to give false testimony. The facts surrounding the first prosecution are an important part of what has passed between these two parties. And since appellant took the stand in this case and presented an entirely different version of the facts, the outcome, like in Robinson, depended on the credibility of the witnesses. See also Butler, supra, (error to preclude cross examination to establish motive of police officer-witness regarding defendant’s civil suit against him); Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978) (error to disallow cross examination designed to establish that there was “bad blood” between the witness and defendant).

I would therefore vacate judgment of sentence and remand for a new trial.

      . Williams claims that the threats began in the months previous to April 24, 1987; however, the criminal complaint only charged Day with threatening Williams between the dates of April 24, 1987 and July 30, 1987.

      . Day states in his brief:
      Counsel suggested that the prosecution’s concern about prejudice could be satisfied with a cautionary instruction from the court to the effect that the finding of the court in the first case should not 'be taken by them [the jurors] as binding on the veracity of Mr. Williams or as to whether the incident really happened,’ but only as it might relate to the complainant's motive to lie in this case.
      Appellant’s brief, at 4.

      . In pertinent part, Williams’ testimony was as follows:
      Q. [The prosecutor]: Mr. Williams, I’d like you to explain to the members of the jury exactly what occurred on or about the 24th of April, 1987 that brings you to court today to testify as a witness.
      A. Well, on that morning around 11, 11:30, Mr. Charlie Day drove up in his car. I assume he had gotten out of jail because—
      MR. MAAS: Objection, Your Honor, move for a mistrial.
      THE COURT: I’ll sustain your objection.
      THE WITNESS: Well, anyway, he drove up.
      BY MR. WINTER: Mr. Williams, let me ask you this—
      MR. MAAS: Your Honor—
      THE COURT: Please erase that from your minds, ladies and gentlemen.
      MR. MAAS: I move for a mistrial.
      THE COURT: I’ll deny your motion for a mistrial.
      N.T., August 3, 1989, at 44.
      Q. [Defense counsel]: Sir, this course of action that you’re talking about by Mr. Day started on April 24th of ’87; is that correct? ...
      Q. Well, is that the day on which you say Mr. Day threatened you?
      A. [Williams]: That’s the first day that he threatened me?
      Q. Yes, sir.
      A. No, it's not.
      Q. Now, this other case you say had started several weeks before—
      A. Excuse me?
      Q. The case in which you were a witness—
      A. That I charged him for burglarizing and stealing something out of my lot?
      MR. MAAS: Well, I’m going to object to that, Your Honor. That’s not responsive and I move for a mistrial.
      THE COURT: I’ll overrule your motion, deny your request for a mistrial, and I’d like to caution the jury and also this witness to respond as narrowly as you possibly can, and the ladies and gentlemen of the jury, please, I shall like you to exert every effort to erase that last remark of the witness from your minds.

        Id. at 51-52.
      Q. [Defense counsel]: Okay. You already said this happened every day at least once. I’m going to ask you up until what date did it happen every day?
      A. Well, if I had a calendar—I couldn’t actually put particularly two and a half months from the time he got the court order for him to stop from the Judge.
      MR. MAAS: I object to that and move for a mistrial.

        MR. WINTER: Your Honor, if I may respond? He’s trying to be responsive to the question.
      THE COURT: Ask the questions more carefully perhaps.
      MR. WINTER: Perhaps.
      THE COURT: I’ll sustain your objection.
      MR. MAAS: I move for a mistrial, your Honor.
      THE COURT: I'll deny your motion for a mistrial.

        Id. at 70.

      . As a corollary proposition, we note that the scope and manner of cross-examination are within the sound discretion of the trial court. Commonwealth v. Jackson, 336 Pa.Super. 609, 622, 486 A.2d 431, 438 (1984). Absent an abuse of discretion or an error of law, we will not disturb its rulings. Id.; see also Commonwealth v. Iafrate, 385 Pa.Super. 579, 585-86, 561 A.2d 1244, 1247 (1989), appeal granted 575 A.2d 109 (Pa. 1990). Moreover, in determining the extent of cross-examination, the trial court may consider whether a matter is collateral and whether the jury is likely to be confused or misled by the testimony. Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989), appeal granted 524 Pa. 625, 574 A.2d 67 (1990).

      . Moreover, during the charge to the jury, the trial court clarified the issues at trial. N.T., May 4, 1989, at 164-71.

      . Day cites Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989) in support of his position that full cross-examination should be permitted
      so long as it is relevant to the search for the truth of the matter under trial. This is especially true where the witness sought to be discredited as a major witness against the defendant and whose covert reasons for testifying in the matter must be allowed to be exposed.

        Hill, at 273, 566 A.2d at 253. However, the Hill Court also stressed that "we must review each fact situation on a case by case basis to determine the relevance of the proposed testimony of the witness, for without relevance the testimony is prohibited ab initio.” Id.

      . Day argues in his brief that the outcome of the first trial was relevant to his defense; to wit, that Day's acquittal (or Williams’ supposed anticipation of an acquittal) motivated Williams to press the instant charges. See Appellant’s brief, at 25, 27-28. He theorized that Williams fabricated the threats in an effort to avenge his feelings of dissatisfaction with the outcome of the first trial. While we recognize that evidence of motive is always admissible, Commonwealth v. Jackson, 336 Pa.Super. 609, 622, 486 A.2d 431, 438 (1984), we fail to see how Williams was prompted to file threat and intimidation charges against Day as a result of his disappointment after the first trial, where the reports were lodged before the first trial began. See N.T., May 3, 1989, at 57-67, 73, 75, 78-81, 106-111, 132, 88-90.

      . With reference to the Young case, we are persuaded by the Commonwealth’s observation that “[a]t best, [Day’s] argument establishes only that the evidence [about his prior trial] could have been properly admitted. It does not follow that admission was required." Appellee’s brief, at 4 n. 3.

      . Day contends that by testifying, he placed his character for truthfulness at stake. Since credibility became an issue, he asserts that he was entitled to have the jurors informed that he was not convicted in his first trial.
      In Commonwealth v. Bricker, 378 Pa.Super. 265, 548 A.2d 604 (1988), this Court fully discussed the principle of “harmless error.” It stated:
      However, assuming arguendo that the jury could infer from the testimony that Bricker had also been incarcerated, and that Bricker was therefore prejudiced, we would not find reversible error. Where this court is convinced beyond a reasonable doubt that the error did not contribute to the verdict, we may hold that reversal is not required because the error was harmless. [Citations omitted].

        Id., 378 Pa.Superior Ct. at 276, 548 A.2d at 609-10. The Bricker Court also cited Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), appeal after remand 497 Pa. 273, 440 A.2d 488 (1981) for the proposition that “the determination of whether an error is harmless based on overwhelming evidence of guilt is closely tied to the facts of the particular case, thus requiring examination of the entire record.” Bricker, 378 Pa.Super. at 278, 548 A.2d at 610, citing Story, 476 Pa. at 413 n. 24, 383 A.2d at 166 n. 24.