author: HESTER, Judge:

text:
    554 A.2d 919
    COMMONWEALTH of Pennsylvania v. Earl Joseph HALL, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1988.
    Filed Jan. 20, 1989.
    Reargument Denied March 15, 1989.

      Leonard J. Frawley, Jr., Towanda, for appellant.
    Mark Smith, Assistant District Attorney, Towanda, for Com.
    Before BECK, KELLY and HESTER, JJ.
   HESTER, Judge:

On September 19, 1985, appellant, Earl Joseph Hall, Jr., was convicted by a jury of first-degree murder, robbery and kidnapping. On September 4, 1987, judgment of sentence of life imprisonment was imposed on the first-degree murder convictions and a consecutive sentence of ten to twenty-five years imprisonment was imposed on the robbery and the kidnapping convictions. This appeal followed denial of appellant’s post-trial motions and of his motion to modify sentence. Rejecting all fourteen of appellant’s assignments of error, we affirm.

The facts may be summarized as follows. On October 29, 1984, appellant became acquainted with Joseph McCall, the victim, while drinking at the Lehigh Tavern in Sayre, Pennsylvania. Appellant’s friend, Paul Arnold, was also drinking at the bar, and the three began to converse. McCall indicated that he wanted some marijuana, and appellant and Arnold left, obtained the substance and returned to the bar. Appellant invited the other men to a marijuana party, and the three smoked the marijuana together while Arnold drove toward the party. Arnold stopped the car in an isolated area in order to perform a private function. As he performed this task, appellant dragged McCall from the car and began beating him severely. Appellant then picked up a large rock, and lifting it over his head, threw it down on the victim’s head, killing him. Later, Arnold helped appellant dispose of the body. Money was taken from the victim.

McCall’s body was discovered the following day. He was identified by the bartender at Lehigh Tavern, Ruth Schoonover, who described both Arnold and appellant to the police. Schoonover knew appellant, an area resident, prior to the incident in question. Police immediately located Arnold, who related the events of the previous evening. Police apprehended appellant on October 31, 1984.

Arnold was later tried and acquitted of robbery and murder, but was convicted of tampering with evidence due to his admissions to aiding appellant in disposing of McCall’s body.

Both Arnold and Schoonover testified against appellant at the trial, as did George Johnson, a friend of appellant’s. Johnson testified that he was drinking with appellant at a bar, when appellant confessed to killing McCall.

The first five of appellant’s issues relate to the validity of a search warrant that the police obtained in order to seize the clothing that appellant was wearing at the time he was arrested and taken into custody.

While appellant vigorously attacks the validity of the search warrant on five grounds, the fact remains that the warrant was entirely unnecessary. Appellant was incarcerated on charges of murder and robbery when police seized the clothing. Police may constitutionally seize a prisoner’s clothing following arrest and detention without obtaining a search warrant. This issue was discussed extensively in Commonwealth v. Aljoe, 420 Pa. 198, 216 A.2d 50 (1966), where the defendant challenged the constitutionality of police actions when they seized his trousers following his arrest. A subsequent analysis revealed that they contained brain tissue. The Pennsylvania Supreme Court stated:

Defendant’s trousers were taken (without objection) and examined for the purpose of identifying him with the slaying of Conway. Such a procedure or practice is similar to seizing any articles, instruments, fruits and other evidence of crime and similar to the Commonwealth’s right to fingerprint an accused or compel him to stand in a police lineup. Such procedures and practices and tests may result in freeing an innocent man accused of crime, or may be part of a chain of facts and circumstances which help ident'fy a person accused of a crime or connect a suspect or an accused with the crime of which he has been suspected or has been accused. The law is well settled that such actions, practices and procedures do not violate any constitutional right....
Defendant does not allege that his arrest was other than valid and lawful. A search and seizure incident to a valid and lawful arrest is not unreasonable and violates no constitutional guarantees. In such circumstances, officers “ * * * when making a lawful arrest with or without a search warrant may discover and seize any evidence, articles or fruits of crime found upon the prisoner or upon the premises under his control at the time of his lawful arrest.”

Id., 420 Pa. at 202-03, 216 A.2d at 52-53 (citations omitted); accord Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974) (police could validly seize defendant’s coat following his lawful arrest without violating any constitutional provisions); Commonwealth v. Mason, 327 Pa.Super. 520, 539, 476 A.2d 389, 398 (1984), rev’d on other grounds, 507 Pa. 396, 490 A.2d 421 (1985) (“The law is clear that where a defendant is in lawful custody of police as a result of a lawful arrest, ... the police are entitled to seize articles of clothing from the defendant which might possibly be used as evidence.”); see also Commonwealth v. Cope, 359 Pa.Super. 140, 518 A.2d 819 (1986).

The United States Supreme Court later analyzed the issue and came to the same conclusion reached by the Pennsylvania Supreme Court in Aljoe. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1284, 39 L.Ed.2d 771 (1974). Edwards was legally arrested, incarcerated, and his clothing seized ten hours later without the use of a warrant. Evidence obtained from the clothing aided in his conviction. The United States Supreme Court upheld the search as a warrantless search incident to Edwards’ valid custodial arrest, stating that “searches and seizures that could be made on the spot at the time of arrest, may legally be conducted later when the accused arrives at the place of detention.” Id. at 804, 94 S.Ct. at 1237. Noting that police have an interest in protecting evidence from destruction, the Court ruled that all of a prisoner’s belongings may be seized when he is incarcerated and that they may be subjected to laboratory analysis without offending the prisoner’s constitutional rights. Id. The Court also stated that it was irrelevant whether the clothing is taken upon arrival at the jail pursuant to administrative processing or whether it is taken later solely for use as evidence at trial. Id. at 808, 94 S.Ct. at 1239.

In this case, appellant’s arrest was lawful, and police constitutionally seized his clothing incident to that lawful arrest. The validity of the superfluous search warrant is, accordingly, irrelevant.

Issues six and seven relate to the prosecution’s closing argument. First, appellant argues that the prosecutor’s comments regarding the legal definition of reasonable doubt were inaccurate and that the trial court’s specific curative instruction regarding those remarks was both untimely and inadequate. The allegedly improper comments are as follows:

There was a lot of talk about reasonable doubt at this trial. I think you have all been asked that if there is a reasonable doubt, will you follow your duty to vote not guilty and I think most of you have been asked if there is no reasonable doubt, will you follow your duty, your absolute duty, to vote guilty if the Commonwealth has proven its case. Well don’t take our instruction for what a reasonable doubt is. That is the Judge’s job. He has the instruction. Don’t take our instruction for what a reasonable doubt is and what a reasonable doubt is not. The judge will tell you what a reasonable doubt is and what a reasonable doubt is not. Listen to the Judge’s instruction. The burden of proof for the Commonwealth, is it as heavy as it might have been argued? I suppose I would be about four foot three from trying to carry that burden around for a week, but isn’t a reasonable doubt that the judge tells you about any different from your own sense of fair play, common decency, your own feelings of justice?

Notes of Testimony (“N.T.”), 9/19/85, at 45-46 (emphasis added).

Second, appellant accuses the prosecution of improperly rendering an opinion as to his veracity with the following closing remarks:

I guess we could have cut the trial down to three witnesses because there are only three or four perhaps that you really need to consider, George Johnson has nothing to gain by testifying here. George Johnson who when he came forth with the truth is going to be faced with embarrassment and investigation. Paul Arnold the truth he told brought him into embarrassment and investigation and Earl Hall whose testimony that he bought had an interest. Earl Hall is the person that is on trial here. Earl Hall is the only one person that has something to gain, and nothing to lose by telling the truth. Nothing, has something to gain and nothing to lose by not telling the truth. Earl Hall.

Id. at 50-51.

The law in this area is settled:

A prosecutor, just as a defense attorney, must have reasonable latitude in presenting a case to the jury and “must be free to present his or her arguments with ‘logical force and vigor.’ ” ____ The prosecutor’s remarks to the jury “may contain fair deductions and legitimate inferences from the evidence presented during the testimony.” ____Moreover, “not every intemperate or uncalled for remark by the prosecutor requires a new trial.” ____ Rather, reversible error exists only if the “unavoidable effect” of the language used “would be to prejudice the jury forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict____ Finally, the effect of such remarks is largely dependent on the atmosphere at trial, ... and the proper action to be taken, upon objection, is within the discretion of the trial court.”____

Commonwealth v. Hamilton, 376 Pa.Super. 404, 410-11, 546 A.2d 90, 94 (1988) (citations omitted) (emphasis in original). Furthermore, the prosecutor may discuss the applicable law, Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178 (1988).

Here, the comments of the prosecutor regarding reasonable doubt were not inaccurate. He repeatedly told the jury to listen to the judge’s, not the attorneys’, definition of the term. To the extent he did discuss the concept of reasonable doubt, the discussion must be viewed as nothing more than fair response to defense counsel’s closing remarks, which contained extensive discussion of the Commonwealth’s burden of proof and which characterized that burden as inordinately heavy. See N.T., 9/19/85, at 5-7, 22, 25.

The prosecutor’s comments regarding appellant’s testimony were fair inferences from the evidence, and we have ruled that similar commentary was not improper. See Commonwealth v. Rozanski, 289 Pa.Super. 531, 433 A.2d 1382 (1981) (comments that prosecutor was going to analyze defendant’s testimony piecemeal to establish that defendant disobeyed his oath to tell the truth was not improper since prosecutor never stated that he disbelieved defendant, but analysis of testimony would establish defendant’s untruthfulness).

In conclusion, the two passages at issue were not improper. However, assuming that they were, neither would have so prejudiced the jury that it would not have been able to render a true verdict.

Appellant next argues that the consecutive sentences of imprisonment of four to ten years for kidnapping and six to fifteen years for robbery are excessive. This is a challenge to a discretionary aspect of his sentence.

In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Supreme Court of Pennsylvania indicated that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal (see Pa.R.A.P. 902 & note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and the appellant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S. § 9781(b) (see Pa.R.A.P. 2119(f)). See Commonwealth v. Darden, 366 Pa.Super. 597, 601-02, 531 A.2d 1144, 1146 (1987). Furthermore, “[i]t is only where a party can articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Commonwealth v. Tuladziecki, supra, 522 A.2d at 20 (emphasis added).

In the instant case, timely notice of appeal was filed, and appellant’s challenge to the discretionary aspects of the sentence was included in the statement of questions presented. Although appellant did not include in his brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal, the Commonwealth has not objected to this procedural defect and thus the defect is not fatal to consideration of whether there is a substantial question for review. See Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

Next, we must determine whether appellant has raised the appearance of a substantial question as to whether the sentence imposed is appropriate under the Sentencing Code as a whole, 42 Pa.C.S. §§ 9701-9781. Under 42 Pa. C.S. § 9781(b), the appearance of a substantial question determines whether this court may grant allowance of appeal of the discretionary aspects of sentence, while the sound discretion of the court determines whether the court will grant review. Commonwealth v. Darden, supra, 366 Pa.Super. at 603, 531 A.2d at 1147.

As we recently noted n Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987):

What constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process. See, e.g., Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980) (sentence must be adjudicated by fair and impartial judge); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (sentence may not be based in part on impermissible consideration).

369 Pa.Super. at 201 n. 7, 535 A.2d at 119 n. 7; see also Commonwealth v. Thompson, 377 Pa.Super. 506, 547 A.2d 800 (1988).

Appellant alleges that the sentences for kidnapping and robbery were excessive because “relatively speaking, the kidnapping was not serious,” and “the robbery did not involve a large sum of money.” Appellant’s brief at 44-45. In addition, “the defendant’s prior criminal record is minor. He is a financially, intelligently, and emotionally indigent person. Perhaps someday the state may consider commuting his sentence. The sentencing Court, by the sentence imposed, will be sending a very negative and improper message.” Id. at 45. Appellant has failed to advance a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the Sentencing Code, or contrary to the fundamental norms which underlie the sentencing process; he, therefore, has not presented a substantial question for review. We, accordingly, will not review appellant’s sentence.

Appellant’s next issue concerns the trial court’s failure to grant him a change of venue on the basis of pretrial publicity. However, the record does not contain a single newspaper article. Since there is nothing in the record regarding the publicity for us to review, we are compelled to affirm the trial court’!, determination, for it is the trial court which has discretion in this matter. Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983).

Appellant’s next assignment of error concerns jury deliberations. Initially, the jury returned a verdict of guilty of first-degree murder, robbery and kidnapping, but failed to return a verdict with respect to the remaining charges which involved lesser included offenses. The trial court then instructed the jury to continue deliberations and return a verdict on all charges. It did so, finding appellant not guilty of the remaining charges. Appellant suggests that the trial court limited further deliberations by failing to specifically instruct the jury that it could continue to deliberate on the charges as to which guilty verdicts had already been returned. This argument has been waived. Appellant did not request the trial court to instruct the jury to continue to deliberate on all charges, and cannot complain now about the absence of such instructions. Furthermore, the instruction given did not have the effect suggested by appellant. The trial court merely told the jurors to continue deliberations on the remaining charges, it did not forbid them from reconsidering their other verdicts.

Appellant also argues that the verdict is against the weight of the evidence due to the fact that Johnson was not a credible witness. Appellant attacks Johnson’s credibility on the grounds that he regularly used cocaine and probably did not accurately remember appellant’s confession. However, we are not permitted to disturb 'the fact finder’s decision as to the credibility of a witness. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Zankowski, 377 Pa.Super. 256, 546 A.2d 1254 (1988). The determination as to the credibility of a witness is within the sole province of the fact finder. Commonwealth v. Jackson, supra. The jury chose to believe Johnson’s testimony regarding his recollection of the contents of appellant’s confession, and we cannot reject its decision. Id. Moreover, Johnson’s testimony was collaborated both by Arnold’s testimony, which the jury also chose to believe, and by the blood stains found on appellant’s trousers. We will not disturb the jury’s determination that Johnson’s recollection of appellant’s confession was accurate despite his use of cocaine.

Appellant also argues that the trial court’s instruction defining murder in the first degree was inadequate. Although the court used the standard jury instruction in defining first-degree murder, appellant claims that the need to focus upon the concept of deliberation was especially important in this case in that he was drugged and intoxicated at the time of the murder and “although voluntary intoxication does not excuse murder, it is possible that someone is so intoxicated that [he is] incapable of deliberate action and thus ... incapable of committing murder one.” Appellant’s brief at 49. There is no indication that the jury received confusing or unbalanced instructions as appellant claims. The instructions used were the standard jury instructions for first-degree murder; they were given accurately; and they were sufficient in defining the elements of first-degree murder. Thus, there was no error in the trial court’s instructions.

Appellant’s thirteenth argument is that the verdicts were inconsistent since he was found not guilty of second and third degree murder, but was found guilty of first-degree murder and since he was found not guilty of theft and robbery where slight force was utilized, but was found guilty of robbery where serious bodily injury was used. The argument, although accurate, does not contain a basis for reversal of appellant’s convictions. The law in this Commonwealth is that inconsistent verdicts are not grounds for reversal. Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971); Commonwealth v. Franks, 271 Pa.Super. 278, 413 A.2d 404 (1978). We are powerless to alter the decisional law of our Supreme Court as requested by appellant. Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978). Accordingly, we reject this as grounds for reversal of appellant’s convictions.

Appellant’s final complaint is that the trial court improperly curtailed his direct examination. Appellant’s attorney wanted to ask him historical questions, such as who was President during the civil war. This would have allegedly demonstrated appellant’s limited intelligence, thus establishing why he did not go to the police following the murder. (As a witness, appellant should have gone to the police.) We affirm the trial court’s decision. The questions concerned historical data irrelevant to the issues in the case and to which appellant easily could have fabricated his ignorance of the correct response.

Judgment of sentence affirmed.

      . The medical evidence established that the victim died of three blows to the head.


source: Caselaw Access Project

author: JOHNSON, Judge: BROSKY, Judge,

license: Public Domain

text:
    554 A.2d 925
    PENN PIPING, INC., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA.
    Superior Court of Pennsylvania.
    Argued June 28, 1988.
    Filed Feb. 1, 1989.
    Reargument Denied March 20, 1989.

      Lee Y. Price, Pittsburgh, for appellant.
    Diane B. Quinlin, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge:

This is an appeal from an Order dismissing the instant action for failure to prosecute. We reverse.

This action arose as a result of dealings between Penn Piping, Inc., (PPI) a commercial contracting company, and Insurance Company of North America, (INA) who acted as surety on various payment and performance bonds issued to owners who had contracted for PPI’s services. PPI alleges that INA defaulted on its oral promise to continue to issue such bonds. On September 22, 1980 a Praecipe For a Writ of Summons was filed. On December 8, 1980 PPI filed for bankruptcy under Chapter 11. On December 12, 1980, pursuant to a Rule entered upon it, PPI filed its initial Complaint against INA. On June 12, 1981, pursuant to an Order of Court, PPI filed an Amended Complaint. INA has never answered or otherwise pleaded to this Amended Complaint. Six years later, on June 16, 1987, INA filed a Rule to Show Cause why the case should not be dismissed for lack of activity pursuant to Pa.R.J.A. 1901.

After oral argument before the Honorable R. Stanton Wettick an Order was issued on November 4, 1987 making the Rule absolute and dismissing the case for lack of activity. PPI appeals from this Order, raising the following issue:

I. May the court dismiss a case for an alleged lack of prosecution when the moving party has contributed to the delay and the moving party is not prejudiced?

It is well settled law that the grant of a non pros is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Gallagher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112, 228 A.2d 732 (1967). In properly exercising its discretion, the trial court considers whether, 1) a party to the case has shown a lack of due diligence in proceeding with the suit, 2) there has been no compelling reason for the delay, and 3) the delay has caused some prejudice to the adverse party such that a substantial diminution of his ability to present his case at trial exists. James Brothers Lumber Company v. Union Banking & Trust Company of DuBois, 432 Pa. 129, 247 A.2d 587 (1968).

The trial court concluded that since there was inactivity of record for more than two years without a showing of good cause the proceeding must be dismissed. The trial court based its decision on the case of International Telephone and Telegraph Corporation v. Philadelphia Electric Company, 250 Pa.Super. 378, 378 A.2d 986 (1977) which involved the dismissal of an action pursuant to a local rule of court of Philadelphia County. This rule mandated the automatic dismissal of any case whose docket entries evidenced inactivity for two successive years, upon sixty days notice to the parties. However, the instant action was instituted in Allegheny County where there has been no parallel rule in effect since Allegheny County Local Rule 229(e) was ruled ineffective and unenforceable for failure to provide for pretermination notice as required by Pa.R.J.A. 1901. Taylor v. Oxford Land, Inc., 338 Pa.Super. 609, 488 A.2d 59 (1985), aff'd 513 Pa. 34, 518 A.2d 808 (1986). Thus, the trial court misapplied the law in its finding that the case must be dismissed for lack of prosecution.

Notwithstanding the rationale of the trial court, it is well established in this Commonwealth that an appellate court may affirm a decision of a trial court if the result is correct on any ground. Green v. Juneja, 337 Pa.Super. 460, 487 A.2d 36 (1985), appeal denied. We therefore consider whether the grant of a non pros was correct in the instant case.

PPI first contends that it was error for the trial court to grant a non pros when INA contributed to the delay in prosecuting the case by not filing an Answer to the Amended Complaint. We disagree with this contention however, because it has long been established that the duty is on the plaintiff to proceed with the cause of action and the plaintiff, not the defendant, should bear the risk of not acting within a reasonable time. Kennedy v. Bulletin Company, 237 Pa.Super. 66, 346 A.2d 343 (1975), Metz Contracting, Inc. v. Riverwood Builders, Inc. 360 Pa.Super. 445, 520 A.2d 891 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987). In this case, where no Answer was filed to the Amended Complaint PPI could have exercised the remedy available through Pa.R.C.P. 287.1, a notice of intent to take a default judgment for failing to answer or otherwise plead to PPFs Amended Complaint. If this notice failed to bring a response from INA, a Praecipe for entry of a Judgment Upon Default, Pa.R.C.P. 1037(b), could have been instituted. Neither of these remedies was employed by PPI, the party squarely responsible for moving forward with the prosecution of the case. We therefore find that PPI has demonstrated a lack of due diligence.

In addition, we agree with the trial court that PPI has shown no compelling reason for its six-year delay. There is no evidence in the original court records to support PPFs assertion that settlement discussions between the parties have stalemated the progress of this litigation, or that PPI has even engaged in discovery. We have already established that PPI cannot use INA’s failure to file an Answer to the Amended Complaint as an excuse for its own delay. Thus, PPI having shown no compelling reason for its delay in prosecuting its case, the second prong of the James Bros. test has been satisfied.

After a thorough review of the record, however, we find that INA has made no showing that its case was prejudiced by PPI’s delay in prosecuting its case. The third prong of the James Bros, test, the showing that prejudice has occurred to the adverse party such that it has suffered a substantial diminution of its ability to present its case at trial, has not been met. INA, in its attempt at establishing that its case was prejudiced, merely pronounced, without explanation, that prejudice is “obvious” and that “witnesses (non-specific) have dispersed and memories faded.” (R.R. at 38a). Since no explanation has been offered concerning the specific witnesses affected or the evidence that is missing due to PPI’s delay, we refuse to speculate as to whether INA has incurred substantial prejudice.

The proper grant of a non pros necessitates a separate showing of all three prongs of the James Bros. test. James Bros. v. Union Banking, supra, Carroll v. Kimmel, 362 Pa.Super. 432, 524 A.2d 954 (1987) allocatur denied, 517 Pa. 613, 538 A.2d 496 (1988). To accept a lesser showing would be to create new law. While it is true that a lengthy delay may well impede a party’s ability to present his case, length of delay is not, in itself inherently prejudicial. In the case where prejudice to the adverse party’s case has occurred, it would not be burdensome for the moving party to make such a showing, and thus meet the criteria of the James Bros. tripartite test.

INA has failed to meet its burden of showing that it has been prejudiced in its efforts to conduct its case at trial by PPI’s delay in prosecuting. By granting a non pros without a showing of each element of the James Bros. test, the trial court committed an error of law. We therefore reverse the Order of the trial court.

Order reversed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I agree with the majority’s findings that the record exhibits a lack of due diligence on the part of appellant in failing to proceed with the instant litigation and that appellant has neglected to demonstrate a compelling reason for not doing so. My disagreement with the majority focuses on the third prong of the test — a demonstration of prejudice to the adverse party.

Appellee contends, without supporting case law, that this show of prejudice is unnecessary. This assertion is incorrect, for prevailing case law has established that the party seeking dismissal for failure to prosecute carries the burden of proving that a substantial dimunition of its ability to present its case at trial exists. Moore v. George Heebner, Inc., 321 Pa.Super. 226, 467 A.2d 1336 (1983), citing American Bank & Trust Co. v. Ritter, Todd and Haayen, 274 Pa.Super. 285, 418 A.2d 408 (1980).

The instant litigation involves a dispute between the parties arising from appellee’s alleged refusal to perform on bonds issued to guarantee completion of several construction projects for which appellant had subcontracted and to pay material suppliers in the event appellant could not fulfill its obligations. The projects which involved the bonds at issue spanned the years 1974, 1975 and 1976. Since the genesis of this litigation in 1980, no discovery has been undertaken.

I find it difficult to comprehend, in the absence of any discovery since the inception of this litigation, how, twelve to fourteen years after the events in question, either party to this litigation could garner any reliable facts from any witnesses to prepare for trial. Moreover, a delay as long as or longer than the applicable statute of limitations for commencement of the particular action warrants dismissal for lack of prosecution so long as the other prongs of the James Brothers test are met. Carroll v. Kimmel, 362 Pa.Super. 432, 524 A.2d 954 (1987), allocatur denied, 517 Pa. 613, 538 A.2d 496 (1988); Kennedy v. Bulletin Co., 237 Pa.Super. 66, 346 A.2d 343 (1975). To be sure, the bar of the limitations period has been construed under the diligence prong of that test. See Carroll and Kennedy, supra. But I see no reason why failure to prosecute over a period of time already exceeding the applicable statute of limitations for commencing an action should not be deemed inherently unreasonable and prejudicial to the proponent of the dismissal. Admittedly, the expiration of the limitations period is a circumstance to consider, albeit not the controlling one. Rather, the granting of a non pros is based upon the equitable principle of laches. James Bros. Lumber Co. v. Union Banking & Trust Co., 432 Pa. 129, 247 A.2d 587 (1968); American Bank & Trust, supra.

I would hold that a lack of prosecution for as long as or longer than the applicable statute of limitations for commencement of an action, absent a compelling reason therefor, constitutes such substantial dimunition of a party’s ability to present its case at trial as to satisfy the requisite showing of prejudice, especially where it is demonstrated by appellant’s admission that appellee was duty-bound to move forward with the case, coupled with appellant’s shunning of the Rules of Civil Procedure designed to prompt a recalcitrant defendant to answer the suit filed against it. To hold otherwise would obviate the necessity of and pay mere lip service to the purpose of a limitations period, which is to guard against stale claims and faded memories. A contrary holding would also place this court’s imprimatur on inactive, long-pending suits merely upon the non-showing of a separate allegation of prejudice. The equities governing the grant of a non pros would give way to a hypertechnical compartmentalization of the three-pronged James Brothers I Moore test. Such a result I cannot sanction.

As stated earlier, the instant litigation centers around appellee’s alleged default in performance and payment bonds relative to construction work performed by appellant in 1974, 1975 and 1976. Suit was commenced in September 1980, by a writ of summons. On June 12, 1981, an Amended Complaint was filed. No activity in pursuance of this suit appears as a matter of record from that date until June 16, 1987, when appellee filed its Petition to dismiss for inactive prosecution. The time from the filing of appellant’s Amended Complaint to the date of appellee’s Petition for dismissal represents an unexplained hiatus of six years absent a compelling reason therefor, a want of diligent prosecution and is well beyond the one-year statutory period of limitations for commencement of an action upon any payment or performance bond. See 42 Pa.C.S.A. § 5523(3).

The standard for appellate review of a trial court’s grant of a non pros or dismissal for lack of prosecution has been stated as follows:

It is well settled law that the question of granting a non pros because of the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the lower Court and the exercise of such discretion will not be disturbed on appeal unless there is proof of a manifest abuse thereof.

Carroll, supra, 362 Pa.Superior Ct. at 436-37, 524 A.2d at 956; Moore, supra, 321 Pa.Superior Ct. at 228-29, 467 A.2d at 1337, both quoting Gallagher v. Jewish Hospital Ass’n., 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). From the above, it appears that the scope of our review is narrowly confined to a determination of whether the trial court’s action constitutes a manifest abuse of its broad discretion to grant a non pros or dismissal based upon unreasonable, unexplained delay. See Carroll, supra, citing Gallagher, supra.

Without a doubt, the trial court did not abuse its discretion in dismissing the instant suit on the basis of inactive prosecution. A trial court possesses the inherent power to enter an order of dismissal or to render a judgment of non pros for unreasonable, unexplained delay. Carroll, supra, citing Gallagher, supra.

Moreover, Pa.R.C.P. 1037(c) provides that a trial court, on motion, “may enter an appropriate judgment against a party upon default or admission.” This Rule has been construed to encompass the power to enter a non pros or dismissal for lack of prosecution for an unreasonably lengthy period of time. Id. Under either its inherent power, as supported by the record and the applicable case law, or by virtue of the blanket authority of Rule 1037(c), the trial court properly dismissed the instant suit. Finding no abuse of discretion in the trial court’s action, I would uphold its Order of dismissal.

      . PPI refers to a deposition taken of Joseph Tice, an INA representative, on July 21, 1987. A copy of the alleged deposition has been included as part of PH's reproduced record. According to the official list of docket entries and the Allegheny County Prothonotary’s office, this deposition is not among the original documents contained in the record certified to this court. Only original papers filed in the lower court, including any transcripts and the certified copy of docket entries, constitute the record on appeal. Pa.R.A.P. 1921. An appellate court may consider only the facts which have been duly certified in the record. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974).
      Furthermore, PPI admitted in its second Answer to the Petition to Dismiss filed one day after the date of the alleged deposition, that no formal discovery had been conducted and that it was unaware if any action had been taken by INA concerning the conduct of discovery.

        . Both parties in their appellate Briefs rely on Pa.R.J.A. 1901 as supportive or not of dismissal of this matter. While Rule 1901 provides for termination of inactive cases, it is inapplicable to the matter at hand. Subsection (a) thereof calls for dismissal sua sponte by the court when a matter has been inactive for an unreasonably lengthy period of time. Here, the trial court dismissed the action after consideration of the parties' Petition and Answers, respectively. As I have noted elsewhere in the text, dismissal by this procedure was proper either under the trial court's inherent power or by virtue of its blanket authority pursuant to Pa.R.C.P. 1037(c).
      In accordance with subsection (b) of this Rule, the various common pleas courts of this Commonwealth are directed to implement local rules for dismissal of inactive cases. The two-year period of inactivity warranting dismissal referred to in appellee's Brief appears in the Comment following this Rule as part of the language for a suggested form of local rule. Allegheny County does not presently have a local rule of court concerning dismissal of inactive cases. Its former Rule 229(e), struck down as being inconsistent with Pa.R.J.A. 1901(c), was revoked in May 1985. See Taylor v. Oxford Land Inc., 338 Pa.Super. 609, 488 A.2d 59 (1985), aff’d 513 Pa. 34, 518 A.2d 808 (1986).
      Rule 1901(c) sets forth minimum standards for notice to parties of the proposed termination and the method for reinstatement of a matter after dismissal. Neither party calls into question the notice provisions of this subsection, nor is an application for reinstatement implicated here. See Metz Contracting, Inc. v. Riverwood Builders, Inc., 360 Pa.Super. 445, 520 A.2d 891 (1987).
      Finally, subsection (d) of Rule 1901 limits the court’s power to entertain an application for reinstatement after disposal of records. Once again, the situation contemplated by this subsection is not germane to the matter at hand.


author:
WIEAND, Judge:
      CIRILLO, President Judge,

text:
    554 A.2d 930
    Julia C. PERSIK, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 13, 1988.
    Filed Feb. 9, 1989.
    Petition for Allowance of Appeal Denied Aug. 14, 1989.
    Lee C. Swartz, Harrisburg, for appellant.
    Jonathan M. Crist, Harrisburg, for appellee.

      Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

The sole issue in this appeal is whether a person who is unemployed when a vehicular accident occurs may assert a claim under the income loss benefit provision of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). The trial court held that an unemployed person cannot recover lost income and entered summary judgment in favor of the defendant insurance company. We reverse. An injured person ma> recover income loss benefit by showing that “but for” the accident, he or she would have worked and earned income.

On July 20, 1985, Julia C. Persik, while operating an automobile insured by Nationwide Mutual Insurance Company (Nationwide) on Route 641 East in Cumberland County, Pennsylvania, was struck in the rear by a truck. Due to permanent physical injuries resulting from the accident, Persik was rendered physically incapable of engaging in gainful employment. She had separated from her husband six weeks before the accident; and on or about July 1, 1985, she had begun seeking full-time employment to support herself and her minor daughter. Although she had made several inquiries regarding specific clerical positions, including a law firm for which she had acted as a temporary receptionist during the previous summer, appellant had not obtained full-time employment when the accident occurred.

Persik made a demand on Nationwide for income loss benefits allowed by the MVFRL. Nationwide denied the claim. Persik then filed this action. The trial court granted a motion for summary judgment in favor of Nationwide because Persik had not been earning income at the time of the accident and had been unemployed for twelve consecutive months prior thereto. This appeal followed.

A motion for summary judgment may properly be granted only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. French v. United Parcel Service, 377 Pa.Super. 366, 370, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983); Dunn v. Teti, 280 Pa.Super. 399, 402, 421 A.2d 782, 783 (1980).

Under the provisions of the old, now repealed No-Fault Act, certain recoveries were allowed by the courts which had not been anticipated by the legislature. Thus, the old law was interpreted to permit the recovery of work loss benefits accruing after the death of a victim, Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), and even to permit recovery of post-mortem work loss benefits by the estate of a deceased victim who had been a minor at the time of death, Freeze v. Donegal Mutual Ins. Co., 504 Pa. 218, 470 A.2d 958 (1983). This caused Representative Michael Mathew Dawida to say during the House Debate on MVFRL that:

The escalation of costs has come in a number of ways: one, from court decisions that could never have been foreseen by those in the legislature 9 years ago who passed the no-fault law, court cases that allowed a 2-year-old to receive work loss benefits. I assure you, the members of the legislature did not intend that, and the costs that have been encumbered on the constituents from those court cases are a serious and particularly appalling part of the cost escalation.

See: House Debate, December 14,1988, Legislative Journal 2244. In response to these and other problems, the No-Fault Act was repealed and the MVFRL was enacted. See generally: J. Ronca, L. Sloane, J. Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, 11-16 (1986).

The new statute provides:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedalcyeles or like type vehicles, registered and operated in this Commonwealth, shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:
(2) Income loss benefit. — Includes the following:
(i) Eighty percent of actual loss of gross income.
(ii) Reasonable expenses actually incurred for hiring a substitute to perform self-employment services thereby mitigating loss of gross income or for hiring special help thereby enabling a person to work and mitigate loss of gross income.
Income loss does not include loss of expected income for any period following the death of an individual or expenses incurred for services performed following the death of an individual. Income loss shall not commence until five working days have been lost after the date of the accident.

75 Pa.C.S. § 1712. By this enactment the legislature made several obvious changes. First, it abandoned specific methods of calculating work loss for persons who were regularly employed, seasonally employed, and not employed, see No-fault Act § 205(a), (b), and (c), 40 P.S. § 1009.205(a), (b), and (c), now repealed, and instead adopted a singular, broad, nonspecific definition of income loss. Second, it expressly excluded the recovery of income loss benefits accruing after the death of a victim, and thus legislatively reversed the decision in Allstate Ins. Co. v. Heffner, supra. Finally, it provided for a cost-reducing waiting period of five working days before any income loss would be paid.

Although the legislature expressly excluded recovery of post-mortem income loss, it did not expressly provide that currently unemployed persons who could show that they would have been earning income “but for” a vehicular accident should be denied income loss benefits. The old, No-fault Act had specifically defined “loss of income” as “gross income actually lost by a victim.” No-fault Act, § 103, 40 P.S. § 1009.108, now repealed. The Act had also provided that the work loss benefit for a victim who was not employed at the time of the accident should be calculated by “determining Ms probable weekly income.” No-fault Act § 205(c), 40 P.S. § 1009.205(c), now repealed. Under these provisions, work loss benefits were held to be recoverable where a victim who had been unemployed at the time of the accident would have earned income but for the injuries received in the accident. See, e.g.: Marryshow v. Nationwide Mutual Ins. Co., 306 Pa.Super. 233, 452 A.2d 530 (1982); Erie Ins. Exchange v. Roule, 279 Pa.Super. 40, 420 A.2d 733 (1980).

The MVFRL has not purported to change this. Recovery of income loss benefits based upon “actual loss of gross income” requires only that the loss of income be “real,” that is that it have “a valid objective existence as opposed to that which is merely theoretical or possible.” See: Black’s Law Dictionary (5th ed. 1979). Under this standard, there can be no recovery for lost income merely because there has been a loss of earning capacity. Rather, the recovery allowed by the statute must be based upon a real, actual loss of income which would have been earned “but for” injuries received in the accident. A recovery for the loss of actual income, however, does not necessarily exclude recovery by one who, on the date of the accident, was unemployed. It excludes lost income benefits only for a claimant who, in any event, would not have earned actual income. Whether a claimant would have earned actual income but for injuries received in a vehicular accident is a matter of proof.

Like its predecessor statute, the MVFRL is to be liberally construed. Wolgemuth v. Harleysville Mutual Ins. Co., 870 Pa.Super. 51, 62, 535 A.2d 1145, 1151 (1988); 1 Pa.C.S. § 1928(c). The legislature, although aware of appellate court decisions interpreting the prior statute, made no affirmative attempt to disallow the recovery of actual income losses by persons who were unemployed on the date of the accident. Inasmuch as the legislature made no attempt to disallow the recovery of actual income loss by a person who was unemployed at the time of the accident causing injury, we perceive no valid reason for the judiciary to legislate a requirement that a victim be employed before he or she can recover for actual loss of gross income.

To impose such a requirement would not only fail to give the MVFRL the liberal construction which it is entitled to receive, but it would also permit results which would be both unfair and absurd. Such an interpretation, for example, would make it impossible for an employee to recover lost income benefits if he or she were temporarily on strike, or if he or she had been temporarily laid off. Under such an interpretation, a recent college graduate who was injured in an automobile accident immediately prior to accepting his first job offer would be unable to recover income loss benefits; whereas, another graduate who was injured in the same accident but who had started working the day before the accident would be able to recover 80% of the income which he would have earned had the injury not occurred. In our judgment, the legislature did not intend such an absurd result.

We hold, therefore, that the right to recover income loss benefits does not depend upon whether the claimant was employed on the date of the accident. It depends, rather, upon whether there has been an “actual loss of gross income.” To prove an actual loss of income it is necessary to show that income would have been earned but for the injury caused by the accident. Because this appears to be the approach intended by the legislature, we hold that the trial court erred when it summarily dismissed appellant’s claim for work loss benefits merely because she was unemployed on the date of the accident.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

Because I disagree with the majority’s definition of the scope of income loss benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701-1798, I respectfully dissent.

On July 20, 1985, Julia Persik was injured in an automobile accident in Cumberland County. Her automobile was insured by appellee Nationwide Mutual Insurance Company [Nationwide]. She was unemployed at the time of the accident. Due to her recent separation from her husband, Mrs. Persik was in the p^cess of seeking full-time employment. Since the accident, however, she has been unable to continue in her attempt to secure a job.

Persik’s most recent employment prior to the accident was a temporary position as a receptionist. For the twelve months preceding the accident, she had been continuously unemployed. Notwithstanding her previous employment status, Persik filed a claim to recover income loss benefits under her insurance policy pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, supra. Persik’s claim was rejected by Nationwide. Thereafter, she filed this action. After responsive pleadings were filed and discovery initiated, Nationwide filed a motion for summary judgment, averring that an individual who has been continuously unemployed for twelve months prior to an accident has not sustained an “actual loss of gross income.” The trial court agreed and granted Nationwide’s motion.

The issue raised in the instant cáse is one of first impression in this Commonwealth. This case calls on us to decide whether the Financial Responsibility Law provides for recovery of wage loss benefits by persons who are unemployed. The relevant portion of the law reads:

§ 1712. Availability of Benefits
An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, ... shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:
* * * * * *

(2) Income loss benefit. — Includes the following:

(i) Eighty percent of actual loss of gross income. 75 Pa.C.S. § 1712(2)(i). Persik argues that she is entitled to receive income loss benefits under this section. Nationwide maintains that Mrs. Persik is not entitled to recover as she had not suffered the “actual loss of gross income” required by the statute. Persik, however, asserts that, by analogy to the now-repealed No-fault Act’s provisions governing work loss benefits, income loss benefits under the Financial Responsibility Law should be held to be available to her. The Financial Responsibility Law gives us no explicit guidance on this point and, as a result, we must resolve this dispute by analyzing it in light of its definitions section and with reference to the intent of the General Assembly in enacting it.

The Financial Responsibility Law was enacted in response to perceived dissatisfaction with its predecessor, the No-fault Act. The legislative history of the Financial Responsibility Law reveals that the primary factors prompting its adoption and the repeal of the No-fault Act were the rapidly escalating cost of coverage under the No-fault Act and the rising numbers of uninsured motorists. Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988). The No-fault Act had been passed in 1975 to reduce insurance costs. J. Ronca, L. Sloane, J. Mundy, An Analysis of the Financial Responsibility Law, Pennsylvania Motor Vehicle Insurance, xvii-30 (1986) (hereinafter Ronca, Sloane & Mundy).

From the very start, we must acknowledge the fact that the Financial Responsibility Law repealed rather than amended the No-fault Act. Section 1971 of the Statutory Construction Act provides, in relevant part:

Whenever a statute purports to be a revision of all statutes upon a particular subject, or sets up a general or exclusive system covering the entire subject matter of a former statute and is intended as a substitute for such former statute, such statute shall be construed to supply and therefore to repeal all former statutes upon the same subject.

1 Pa.C.S. § 1971(a) (emphasis added). It is apparent that the goals of the No-Fault Act and the Financial Responsibility Law are similar. However, as specifically instructed in section 1971 of the Sti tutory Construction Act, we must now defer exclusively to the Financial Responsibility Law.

It is also important to note that unlike the Financial Responsibility Law, the No-fault Act contained an express statement of its purpose: “[I]t is hereby declared to be the policy of the General Assembly to establish at a reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b) (repealed). See also Crusco v. Insurance Company of North America, 292 Pa.Super. 293, 437 A.2d 52 (1981); Dull v. Employers Mutual Casualty Company, 278 Pa.Super. 569, 420 A.2d 688 (1980). This section has been relied upon by the courts of this Commonwealth in extending coverage to the insured in questionable cases. See Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 401 A.2d 1160 (1979) (in support of its holding, the court stated that “the tendency has been that if we should err in ascertaining the intent of the legislature or the intendment of an insurance policy, we should err in favor of coverage for the insured”). The Financial Responsibility Law, however, contains no such explicit statement of purpose to guide us in construing its provisions or in interpreting insurance policies governed by it. Our goal in the interpretation of this or any legislation is to “ascertain and effectuate the intention of the General Assembly.” 1 Pa. C.S. § 1921(a). We must, therefore, attempt to understand the reason for the repeal of the No-fault Act and the subsequent enactment of the Financial Responsibility Law, noting in particular that the motivation behind both was to reduce premiums.

When interpreting new law, we are guided by the Statutory Construction Act. 1 Pa.C.S. §§ 1501-1991. When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be "emedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon
the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921(c).

A general conclusion regarding the intent of the legislature in enacting the Financial Responsibility Law may be reached after careful consideration of these factors. My analysis suggests that one objective in the repeal of the No-fault Act and the enactment of the Financial Responsibility Law was reduction of the number of first party recoveries and a consequent reduction in the cost of coverage to the consumer. Specifically, the Financial Responsibility Law sought to remedy two trends which had developed under the No-fault Act: the rapidly escalating cost of coverage and the rising numbers of uninsured motorists. Thus, while the legislature’s basic goal of cost reduction remained unchanged, the repeal of the No-fault Act and the enactment of the Financial Responsibility Law recognized that the No-fault Act had failed to achieve its stated purposes and that new strategies would have to be employed if those goals were to be attained.

Although a considerable amount of the Financial Responsibility Law is modeled after language used in the repealed No-fault Act, there are many sections which appear for the first time and do not parallel present Pennsylvania law or the law of any other state. Ronca, Sloane & Mundy, supra, at xviii. There are also numerous provisions of the No-fault Act that do not appear in the Financial Responsibility Law. As I have already noted, the Financial Responsibility Law contains no section setting out the purpose behind its enactment. This omission and its meaning are important to my interpretation of the statute.

The problem is one of basic statutory interpretation. In order to determine whether Persik is entitled to recover, the terms set out by the Financial Responsibility Law in its definition of “income loss benefits” must be defined. It is important to note that both the Financial Responsibility Law and the repealed No-fault Act include a section entitled “Definitions.” The relevant terms defined by the No-fault Act included:

§ 103. Definitions.
* sK # si* * 0
“Basic loss benefits” means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act____
?H * * # sfc 0
“Loss” means accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor's loss. “Loss of income” means gross income actually lost by a victim or that would have been lost but for any income continuation plan, reduced by:
(A) eighty percent (80%) of any income which such individual earns from substitute work;
(B) income which such individual would have earned in available substitute work he was capable of performing but unreasonably failed to undertake.
* * * # * *
“Net loss” means loss less benefits or advantages required to be subtracted from loss in calculating net loss pursuant to this act.
* # # # * #
“Work loss” means:
(A) loss of gross income of a victim, as calculated pursuant to the provisions of section 205 of this act; and
(B) reasonable expenses of a victim for hiring a substitute to perform self-employed services, thereby mitigating loss of income, or for hiring special help, thereby enabling a victim to work and mitigate loss of income.

40 P.S. § 1009.103 (repealed) (emphasis added). The definitions section of the Financial Responsibility Law, in contrast, fails to define any of these terms. Consequently, these terms must be defined in the context of the Financial Responsibility Law. I will attempt to define “actual,” and “includes,” analyze the way in which the “but for” test referred to in the No-fault Act has been used and, finally, determine whether its use should continue under the Financial Responsibility Law.

In doing so, I would note the change in the designation chosen by the legislature to describe this type of benefit. Under section 1924 of the Statutory Construction Act, that change may be considered in any analysis of the Financial Responsibility Law’s provisions. I would reason that, based upon 1 Pa.C.S. § 1924 and the history of the law’s enactment, in choosing to describe the benefits as “income loss benefits” rather than “work loss benefits,” the legislature intended to indicate a shift in emphasis from loss of ability to work (whether or not plaintiff was actually working) to loss of income that otherwise would have been received.

Nationwide argues that the entire structure of section 205 of the No-fault Act, entitled “Work loss,” has been replaced in the Financial Responsibility Law by the simple phrase “actual loss of gross income” to indicate that the intent of the legislature was to preclude the collection of income loss benefits by claimants who, at the time of the accident, had no current or regular income, who had not been employed for some period of time, and whose prospects for future employment were uncertain.

Persik contends that the term “actual loss of gross income” should be read as that amount of income she would have been able to earn if the accident had not occurred. This interpretation would be consistent with the three separate categories established under the repealed No-fault Act for determining work loss benefits. Under the No-fault Act, work loss benefits were based upon whether the accident victim was regularly employed, seasonably employed, or not employed. See 40 P.S. § 1009.205(a), (b) & (c) (repealed); footnote 2, supra. Recovery founded upon such categorical distinctions was clearly consistent with the purposes of the No-fault Act, which encouraged an expansion of first party recoveries. The Financial Responsibility Law, however, has eliminated these categories and replaced them with one simple description of income loss recovery. Mrs. Persik argues that if the intent of the Financial Responsibility Law was to abandon this type of categorization, that abandonment would have been expressly stated. She also contends that in the absence of a new definition, we should continue to apply the one used before the repeal of the No-fault Act. I disagree with both contentions. Acceptance of appellant’s interpretation of the Financial Responsibility Law would fly directly in the face of the legislature’s intent in enacting it, which I understand to be the limitation of recoveries rather than the expansion of those recoveries. See Ronca, Sloane & Mundy, supra, at 16.

In the absence of explicit definitions in the Financial Responsibility Law of the terms used to describe income loss benefits, we must turn to the Statutory Construction Act for guidance in determining their meaning. In interpreting the phrase “actual loss of gross income,” I would start with the premise that the legislature generally utilizes words in their standard or accepted sense:

§ 1903. Words and phrases
(a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.
(b) General words shall be construed to take their meanings and be restricted by preceding particular words.

1 Pa.C.S. § 1903; see also Crusco, supra. Black’s Law Dictionary defines the word “actual” as “having a valid objective existence as opposed to that which is merely theoretical or possible.” Black’s Law Dictionary 33 (5th ed. 1979). In construing the term “actual” according to its most common usage, I would hold that where no real, demonstrable loss of gross income can be substantiated, such as in situations where one is either on a salary or unemployed, no benefits can be recovered. See Ronca, Sloane & Mundy, supra, at 27. Such recoveries were allowed under the No-fault Act because they were consistent with the intent of that act; to allow recoveries to the same extent under the Financial Responsibility Law would be inconsistent with the legislative intent in its enactment.

As stated previously, the No-fault Act attempted to reduce premiums by expanding first party recoveries. The Financial Responsibility Law’s intent clearly is to place a ceiling on the number of recoveries permitted. In attempting to define such a limitation, the legislature has eliminated the three prior categories which determined benefits and has replaced them with a single, concise statement: “Eighty percent of actual loss of gross income.” 75 Pa.C.S. § 1712(2). The legislature chose to reword this section in order to provide the clarity lacking in the No-fault Act and to avoid work loss recoveries not anticipated by insurers. Ronca, Sloane, & Mundy, supra, at 27. Had the legislature intended to allow recovery for “probable loss of gross income,” the statute would have been worded to reflect that intention.

Persik argues further that the phrase, “includes the following,” as used in section 1712(2) implies that, in addition to the two defined categories, other types of income loss may be recovered. “The term ‘including’ within a statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation.” Black’s Law Dictionary 687 (5th ed. 1979) (emphasis added). In Dull, our court construed the terms “occupying” and “alighting from” according to their common usage determining that this would be consistent with the intent of the legislature when passing the No-fault Act. We found that a different interpretation would not have promoted the purpose of that law. Dull, 278 Pa.Super. at 573, 420 A.2d at 688. Since the legislative intent behind the Financial Responsibility Law is to reduce the number of first party recoveries, to construe the term “includes” as used in section 1712(2), other than as a word of limitation would not further the objective to be achieved by that law’s enactment. Therefore, the word “includes” should be interpreted as if the phrase “and is limited to” followed it.

Finally, appellant asserts that a “but for” test should be used to determine entitlement to benefits as had been the case under the No-fault Act. She contends that if she establishes that she would have earned income “but for” the fact of the accident, work loss is recoverable. Additionally, she maintains that absent a clear intent by the legislature to change the “but for” test established by the No-fault Act, it should continue to be used under the Financial Responsibility Law.

The No-fault Act referred directly to this test:

“Loss of income” means gross income actually lost by a victim or that would have been lost but for any income continuation plan reduced by [other listed factors].

40 P.S. § 1009.103 (emphasis added). Case law construing the No-fault Act determined that a negative employment history at the time of the accident did not in and of itself negate the recovery of work loss benefits. Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1983); Marryshow v. Nationwide Mutual Insurance Company, 306 Pa.Super. 233, 452 A.2d 530 (1982); Erie Insurance Exchange v. Roule, 279 Pa.Super. 40, 420 A.2d 733 (1980). Such decisions were consistent with the legislative intent of the No-fault Act, which was to provide “a basic system of motor vehicle accident insurance law which assures every victim ... recovery of a reasonable amount of work loss.” 40 P.S. § 1009.102(a)(6)(A). Consequently, the No-fault Act allowed recovery when one could establish that but for the accident the victim would have or could have earned income. Additionally, under the No-fault Act, a person who was unemployed at the time of the accident might still recover according to his or her “probable annual income.” 40 P.S. § 1009.205(c). In several cases involving minors, the estate of the victim was entitled to recover work loss benefits even though the minor had yet to enter into the labor market. In Anfuso v. Erie Insurance Group, 306 Pa.Super. 567, 452 A.2d 870 (1982), the court referred to section 205(d)(C) of the No-fault Act which provided benefits to a victim “who ha[d] not previously earned income from work.” In Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982), the victim was entitled to work loss benefits as calculated under section 205(d) even though her recently opened business was operating at a deficit.

Although the No-fault Act was broader in scope than the Financial Responsibility Law and, as a result, allowed for a greater number of recoveries, in many cases the victim was still required to show an actual loss of wages. Erie Insurance Exchange v. Roule, 279 Pa.Super. 40, 420 A.2d 733 (1980) (victim on strike when accident occurred recovered work loss benefits since he would have earned income from substitute employment during the period of the strike but for the injuries sustained); Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985) (victim, not actually employed for the past sixteen years, was allowed to submit evidence supporting the amount she would have earned in the capacity of part-time beautician since victim had maintained her skills as a beautician, practiced on a part-time basis, and had mentioned on occasion returning to the field full-time); Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080 (1984) (“[w]ork loss within the meaning of the No-fault Act is economic detriment resulting from inability to work; in other words loss of a paycheck”). It is not illogical to demand such a showing under the Financial Responsibility Law, which is clearly more narrow in scope, and which was drafted to effectuate a policy of limitation of recoveries in response to the rapidly increasing cost of insurance and the rising number of uninsured persons.

Perhaps more importantly, it should be noted that the Financial Responsibility Law contains no language concerning the “but for” test. Further, it does not include in its text the categories of “regularly employed,” “seasonably employed,” and “not employed,” workers which were part of the No-fault Act. To determine from these omissions that the legislature intended to retain the “but for” test is somewhat illogical. Had the legislature intended to do so, it would have specifically included that language. This reasoning is bourne out by the scope of the Financial Responsibility Law. It was intended to be considerably more narrow with regard to recoveries. Without the inclusion of these categories or evidence of the legislature’s intention to provide an analogous system of recovery, I would conclude that if the “but for” test is to be utilized, it must be done so in a limited way. First party recoveries should be limited to those victims who can demonstrate that they would have earned income but for the accident. That income could have been obtained is not enough.

The interpretation of the statute required to reach the result put forth by Persik seems to me to be contrary to what I discern as the intent of the legislature. Therefore, I would conclude that since Persik was unemployed at the time of the accident, proved only a scant work history, and could demonstrate only uncertain job prospects, she should not be entitled to recover income loss benefits under'the Financial Responsibility Law as she has not suffered an actual loss of gross income. I, therefore, would affirm the order of the trial court awarding summary judgment to Nationwide.

      . 75 Pa.C.S. § 1712(2).

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. (repealed).

      . 40 P.S. §§ 1009.101 to 1009.701 (repealed, Feb. 12, 1984, P.L. 26, No. 11, § 8(a), effective Oct. 1, 1984).

      . Under 75 Pa.C.S. § 1702 Definitions, “Benefits” or "first party benefits” are defined as "Medical benefits, income loss benefits, accidental death benefits and funeral benefits."

      . § 1924. Construction of titles, preambles, provisos, exceptions and headings
      ... The headings prefixed to titles, parts, articles, chapters, sections, and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof.
      1 Pa.C.S. § 1924.

      . I 1009.203. Work loss
      (a) Regularly employed. — The work loss of a victim whose income prior to the injury was realized in regular increments shall be calculated by:
      (1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
      (2) multiplying that quantity by the number of work weeks, or fraction thereof, the victim sustains loss of income during the accrual period.
      (I») Seasonably employed. — The work loss of a victim whose income is realized in irregular increments shall be calculated by:
      (1) [sic] determining his probable weekly income by dividing his probable annual income by the number of weeks he normally works; and
      (2) multiplying that quantity by the number of work weeks, or fraction thereof, the victim was unable to perform and would have performed work during the accrual period but for the injury.
      (c) Not employed. — The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by:
      (1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
      (2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period.
      (d) Definitions. — As used in this section:
      ‘Probable annual income’ means, absent a showing that it is or would be some other amount, the following:
      (A) twelve times the monthly gross income earned by the victim from work in the month preceding the month in which the accident resulting in injury occurs, or the average annual income earned by the victim from work during the years, not to exceed three, preceding the year in which the accident resulting in injury occurs, whichever is greater, for a victim regularly employed at the time of the accident;
      (B) the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceding the year in which the accident resulting in injury occurs, for a victim seasonally employed or not employed at the time of the accident; or
      (C) the average annual gross income of a production or non-supervisory worker in the private nonfarm economy in the state in which the victim is domiciled for the year in which the accident resulting in injury occurs, for a victim who has not previously earned income from work.

        40 P.S. § 1009.205 (repealed).

      . The only explicit exclusions appear in section 1712(2) of the Financial Responsibility Law which states "income loss does not include loss of expected income for any period following the death of an individual or expenses incurred for services performed following the death of an individual." 75 Pa.C.S. § 1712(2).


author: OLSZEWSKI, Judge: DEL SOLE, Judge, KELLY, Judge,

text:
    554 A.2d 939
    COMMONWEALTH of Pennsylvania v. Christopher MAIONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1988.
    Filed Feb. 6, 1989.
    Petition for Allowance of Appeal Denied Aug. 3, 1989.

      Del Sole, J., concurred and filed opinion.
    Kelly, J., concurred and filed statement.

      Dante G. Bertani, Public Defender, Washington, for appellant.
    Almon S. Burke, Assistant District Attorney, Washington, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence after appellant was found guilty of aggravated assault and recklessly endangering another person. Appellant makes several allegations of error on behalf of the trial court and the Commonwealth. For the reasons stated below, we affirm the judgment of sentence.

The trial court adequately stated the facts as follows:

The facts, as determined during the course of trial begin on the morning of April 12, 1986 at approximately 2:00 a.m. The defendant, Christopher Maione, 25 years old, had departed Smitty’s Bar/Restaurant in the Borough of Speers, Washington County, Pennsylvania at closing time. The defendant proceeded across the street to a parking lot in front of Wince’s garage where his vehicle was parked. The defendant was then approached by the victim, James Livingstone, 22 years old, and his companion Donald Miller. Mr. Livingstone, an employee at Wince’s garage, to! i the defendant that he shouldn’t park there or he would be fined and towed. Words were exchanged, and a brief argument took place between the defendant and Mr. Livingstone. The defendant then drove away alone.
Mr. Livingstone was parked in the parking lot in front of Smitty’s Bar. After approximately a minute or so the victim, while beginning to get in his car, observed a vehicle headlights on, approaching. The vehicle continued moving until it stopped in the center of the road across from the victim. The vehicle was driven by the defendant. At that point in time the defendant yelled out from the window of his vehicle for the victim to come over to the car. Mr. Livingstone noticed a second person in the car later identified as one Phillip Jeanmenne, an employee of the Back Porch restaurant located approximately a block away from the scene.
Upon being called by the defendant, Mr. Livingstone began to walk across the front of the vehicle. The victim was not carrying any weapons at the time but did have a leather penknife sheath on his belt approximately three (3) inches long. The knife was not exposed. The defendant’s headlights were still on. After the victim had walked across the front of the vehicle to the front left corner of said vehicle, the vehicle suddenly revved its motor, turned to the left and accelerated forward. The vehicle knocked the victim to the ground and the front wheels of the car ran over his lower back and the rear wheels ran over his legs. The vehicle then fled the scene, headlights on. The victim’s companion, Donald Miller, corroborated the testimony of the victim at trial.

Trial court opinion at 2-4.

On May 15, 1986, appellant was charged with criminal attempt to commit murder, aggravated assault and recklessly endangering another person. Appellant was arrested on July 28, 1986. A preliminary hearing was held on August 29, 1986, and appellant was bound over for court on all charges.

Appellant then filed a motion to suppress identification and an application to quash and dismiss Commonwealth’s information under Rule 1100. Both pre-trial motions were denied. Appellant then proceeded to a jury trial on December 1, 1986. On December 5, 1986, appellant was found guilty of aggravated assault and recklessly endangering another person. Post-trial motions were denied, and appellant was sentenced on February 25, 1986, to a term of imprisonment totaling two and one-half to six years. Timely motions to reconsider the sentence were filed and denied. Appellant then filed the instant appeal.

Appellant initially contends that the trial court erred by failing to dismiss the charges against him on failure of the Commonwealth to bring appellant to trial within 180 days in accord with Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. The complaints involved in the case at bar were filed on May 15, 1986. The Commonwealth, therefore, had until November 10, 1986, to bring appellant to trial. On October 24, 1986, however, the Commonwealth filed an application under Rule 1100(c) to extend the time it had to commence trial. On that date the court set a Rule, returnable by November 10, 1986, at which time appellant was to appear and file an answer, which he failed to do. Therefore, the court granted Commonwealth’s application and ordered that trial commence on November 17, 1986. Due to an assignment of another case, however, the trial judge was unable to hear the instant case throughout the remainder of the term. The case was, therefore, rescheduled for the first day of the next trial term, December 1, 1986. On that date appellant filed a pre-trial motion to dismiss pursuant to Rule 1100. At the conclusion of the hearing on this matter, the trial court dismissed this motion. We must now determine whether this was proper.

Appellant argues that t íe requirements set forth in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), have not been fulfilled; therefore, it was error to grant the Commonwealth’s application to extend and to deny appellant’s motion to dismiss pursuant to Rule 1100. As our Supreme Court has stated in Mayfield:

... (t)he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349-1350.

Utilizing the above procedure, appellant claims that the court erred in granting the Commonwealth’s petition to extend without any evidence of due diligence being placed on the record. We disagree. The lack of a record prior to the granting of the Commonwealth’s petition to extend was solely caused by appellant’s failure to appear and file an answer on November 10, 1986. Had appellant appeared as requested, a hearing would have taken place at that time and a record established. Moreover, we are convinced, that due diligence was shown by the Commonwealth in this matter. In assessing whether due diligence has been met, the Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 206, 499 A.2d 381, 384 (1985). Further, on review of a trial court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. Id.

On December 1, 1986, a pre-trial hearing was held in which appellant’s Rule 1100 arguments were fully discussed. A review of the record of this proceeding clearly reveals that the delays ^countered in bringing appellant to trial were due not to a lack of diligence on the part of the Commonwealth, but due to the unavailability of the appellant and judicial unavailability occasioned in part by a crowded court docket. Moreover, the record demonstrates that trial was scheduled for the earliest date consistent with the court’s business. Accordingly, we find that the Commonwealth fully complied with the requirements of May-field and Rule 1100. Therefore, it is clear that the trial court did not err in granting the Commonwealth’s petition to extend, nor did it err in denying appellant’s motion to dismiss.

Next, appellant alleges that the trial court erred by failing to limit the prosecution testimony to proof only of intentional acts by appellant. Appellant argues that the Commonwealth specifically chose to charge appellant with intentional acts and, therefore, was required to prove intent. This argument lacks merit. A review of the record indicates that the information filed by the Cominonwealth on September 22, 1986, charging aggravated assault and recklessly endangering another person, specifically mentioned knowing or reckless behavior. Accordingly, this argument must be rejected.

Appellant’s next contention is based on certain statements made by the prosecuting attorney during her closing argument. Appellant argues that these statements amount to prosecutorial misconduct which the trial court failed to cure in its charge to the jury. Specifically, the prosecution said, among other things, that the appellant had lied about knowing of the victim’s injuries before the date of his arrest. Appellant had testified that he had first learned that the victim was injured on July 27, 1986, the day of his arrest. In rebuttal, the Commonwealth called Officer Ottie Caruso who testified that he had spoken with appellant by phone on April 15, 1986, explaining what had happened. Caruso requested that appellant come down to the police station to answer a few questions, which appellant failed to do. Further, testimony was introduced that the vehicle appellant had been driving on the day of the incident had been impounded in front of his house, contrary to what appellant had testified to at trial. Therefore, the statements of the prosecutor, taken in the context of what was adduced at trial, were meant to show the discrepancy between the testimony of the appellant and that of Officer Caruso concerning when appellant had actually learned of the instant crimes. Accordingly, we find no error.

Upon reviewing the impact of the prosecutor’s statements in the present case, we are guided by our Supreme Court’s pronouncement in Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975):

... Where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa.Super. 568, 577, 145 A.2d 896 (1958). The language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also, Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1981), and the proper action to be taken is within the discretion of the trial court. Commonwealth v. Silvis, 445 Pa. 235, 237, 284 A.2d 740 (1971); Commonwealth v. Simon, supra ...

Commonwealth v. Johnson, 516 Pa. 527, 533-534, 533 A.2d 994, 997 (1987).

Applying this test, we are to determine whether the mental bias of the jury has been so “fixed” as to implicate the truth-finding function itself. Id. In the case at bar, we are not persuaded by appellant that the prosecutor’s remarks denied him a fair trial. The statements of the prosecutor related only to the discrepancy between the testimonies of appellant and Officer Caruso regarding when appellant actually learned of the charges against him. This discrepancy could be reasonably derived from the evidence adduced at trial. Further, the trial court was very careful in instructing the jury as to these matters. Accordingly, we find no error which would require a new trial.

Finally, appellant contends that the trial court erred in refusing to instruct the jury on justification and self-defense. Appellant’s counsel requested the trial court to charge on justification and self-defense prior to closing argument and again just prior to the charge to the jury. Both times the court refused this request. On appeal, appellant contends this was error and, therefore, he is entitled to a new trial. We disagree.

As a panel of this Court has recently stated:

Before self defense may be at issue, there must be some evidence, from whatever source, to justify a finding of self defense. Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980); Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977); Commonwealth v. Terrell, 276 Pa.Super. 136, 419 A.2d 133 (1980); Commonwealth v. Jones, 231 Pa.Super. 300, 332 A.2d 464 (1974). A jury charge on self defense must be given upon request where the jury would have a possible basis for finding self defense. Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980). If there is evidence presented that could support a claim of self defense, it is up to the fact-finder to pass upon its credibility and therefore it is improper for a trial court to exclude such consideration by refusing a charge thereon. Id.

Commonwealth v. Bailey, 324 Pa.Super. 236, 240, 471 A.2d 551, 553 (1984).

In order to legally establish one’s right to self-defense and the use of deadly force, three factors must be shown to have existed at the time of the incident:

First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. Third, the actor must have violated no duty to retreat. 18 Pa.C.S.A. § 505; Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979); Commonwealth v. Black, [474 Pa. 47, 376 A.2d 627 (1977)]; Commonwealth v. McComb, 462 Pa 504, 341 A.2d 496 (1975).

Commonwealth v. Brown, 491 Pa. 507, 511-512, 421 A.2d 660, 662 (1980). See also Commonwealth v. Molina, 358 Pa.Super. 28, 516 A.2d 752 (1986).

Utilizing the above analysis, we are inclined to agree with the trial court that, as a matter of law, appellant was not entitled to a jury charge of self-defense. First, the only evidence introduced which would tend to show that appellant was placed in a position to use deadly force was his testimony that Phillip Jeanmenne told him that the victim had a knife or a gun. Appellant never actually saw a weapon, however, and Jeanmenne testified he told appellant this story to avoid a confrontation. Moreover, appellant was in a car while the victim was on foot; thus, appellant could have simply driven away from the scene. In light of this evidence, it can hardly be said that appellant’s belief that he was in danger of imminent bodily harm was reasonable.

Second, it is entirely clear from the record that appellant was not free from fault in provoking or continuing the difficulty resulting in the injuries to the victim. By appellant’s own testimony, three confrontations took place the night of the incident. The first two incidents occurred when appellant arrived and left the bar. After the second incident, appellant left only to return to the scene with a second person, Phillip Jeanmenne. According to appellant, he requested Jeanmenne’s presence so as not to be outnumbered. Therefore, it is clear that appellant, at least during the third confrontation, had become the aggressor.

Finally, no evidence was introduced which would indicate that appellant made any attempt to retreat. After the second confrontation, appellant was free to leave and not return. The fact that he chose to return to the scene with a second person, however, clearly shows that he did not wish to retreat. In fact, it clearly shows that appellant had become the aggressor. Accordingly, the trial court committed no error by refusing appellant’s request for a jury instruction on justification and self-defense. This claim, therefore, must be rejected.

JUDGMENT OF SENTENCE AFFIRMED.

DEL SOLE, J., concurs.

KELLY, J., files a concurring statement.

DEL SOLE, Judge,

concurring:

After completing a review of the transcript in this case I believe that the trial court was correct in not charging on self defense or justification. However, the basis for my reasoning is somewhat different than that advanced in the Majority Opinion. Specifically, the defendant testified at length that his striking the victim with his automobile was accidental and not intentional. The following statements by the defendant appeared various places in the record:

... I got nervous and scared ... I put my car in drive, I pressed on the gas and my wheels did jerk to the left, ... and when I looked up he. was standing there, he was actually standing there. I tried to miss this guy ... he was just there, he just happened to be there and God forbid, I’d do anything I can to help him, it just happened in such a way, I tried to miss him ...
(Record p. 238)
Q. Did you try to drive into hit Mr. Livingstone?
A. No, never, I would never in my life try to do something like that. I would do anything for this kid, anything that I could possibly. I feel so bad. I prayed and I did a lot of things.
Q. Did you want to hit him?
A. No way.
(Record p. 240)
[by defendant] ... I looked up and he was standing right on the comer, the left front fender. When I seen him it was like it shocked me and I tried to swerve away from him, and I just kept going. (Record p. 261)

A charge on self defense must be given upon request where the jury would have a possible basis for finding self defense. Commonwealth v. Bailey, 324 Pa.Super. 236, 471 A.2d 551 (1984). However based upon the testimony of the defendant, it appears that his defense at trial consisted of a claim that the incident was an accident. He testified that he did not attempt to use any force against the victim. Thus, I believe that there was no evidence that the defendant acted in self-defense. See: Commonwealth v. Terrell, 276 Pa.Super. 136, 419 A.2d 133, 134 (1980), (where the defendant was not entitled to a self-defense charge when he testified that he shot the victim accidentally and further testimony indicated that he had intentionally shot the victim without acting to protect himself from danger); and, Commonwealth v. Percell, 274 Pa.Super. 152, 161-162 fn. 5, 418 A.2d 340, 345-346 fn. 5 (1979) (where the court ruled that the denial of a self-defense instruction was proper since the appellant’s testimony that he fire shots into the air, but not at the victim did not suggest that he was defending himself), reversed on other grounds 499 Pa. 589, 454 A.2d 542 (1982). Since I do not believe the record contains evidence, from any source, that the defendant in this case acted in self-defense, I concur in the Majority’s decision to affirm the trial court’s ruling on this matter.

KELLY, Judge,

concurring statement:

I join in Judge Olszewski’s cogent opinion. Appellant’s own version of the facts clearly demonstrated that he was not free from fault in provoking or continuing the difficulty which led to the final deadly confrontation; hence, he was not entitled to a jury instruction on the issue of self-defense. See Commonwealth v. Butler, 516 Pa. 522, 533 A.2d 992 (1987) reversing 359 Pa.Super. 626, 515 A.2d 616 (1986) (per curiam order and memorandum, unpublished) (Kelly, J., dissenting); accord Commonwealth v. Grove, 363 Pa.Super. 328, 346, 526 A.2d 369, 378 (1987) (jury instructions are only to be given when there is evidence to support such a charge); Commonwealth v. Alvin, 357 Pa.Super. 509, 522, 516 A.2d 376, 383 & n. 3 (1986) (en banc) (unanimously affirming that a valid claim of self-defense cannot be established when the evidence reveals that the defendant was not “free from fault in provoking or continuing the difficulty which resulted in the injury;” collecting and analyzing cases).

      . Appellant argues the following issues:
      (1) Did the trial court err in denying defendant’s motion to dismiss for failure of the Commonwealth to bring defendant to trial within 180 days in accord with Pa.R.Crim.P., Rule 1100?
      (2) Did the trial court err in refusing to grant defendant’s motion to limit the prosecution testimony to proof only of intentional acts by the defendant?
      (3) Did the prosecuting attorney commit prejudicial error in her closing remarks by:
      (a) Advising the jury that the defendant was different than she and the jury and if he were a person like you and me he wouldn’t be here;
      (b) Commenting upon defendant’s silence by advising the jury the defendant could have gone to the police and said it was an accident;
      (c) Calling the defendant a liar.
      (4) Did the trial court err by refusing to instruct the jury on justification and self-defense as requested by the defendant?

        Appellant raises three other issues in his brief that were also raised in his written post-trial motions. During argument of appellant’s post-trial motions, however, only those issues above were actually argued before the trial court. Therefore, the three remaining assignments of error not argued before the trial court, but which have been included in appellant’s brief, are waived and will not be reviewed on appeal. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).