author: HUDOCK, Judge:

text:
    603 A.2d 1039
    COMMONWEALTH of Pennsylvania, Appellant, v. Felix Carlos HERNANDEZ, Appellee. COMMONWEALTH of Pennsylvania, Appellee, v. Felix Carlos HERNANDEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 12, 1991.
    Filed Feb. 24, 1992.

      Charles B. Coleman, Asst. Dist. Atty., Reading, for Com., appellant in No. 1734 and for Com., appellee in No. 1955.
    Gary L. Dorsett, Asst. Public Defender, Reading, for appellant in No. 1955 and appellee in No. 1734.
    Before MONTEMURO, HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

Both the Commonwealth and Hernandez have appealed from the judgment of sentence imposed upon Hernandez following a jury trial on charges of first-degree murder and related charges. We vacate the judgment of sentence and remand for new trial.

The pertinent facts and procedural history are as follows: On July 4,1990, Hernandez attended a party taking place at the Glenside Housing Projects in Reading, Pennsylvania. Also present at the party was Enrique Lopez, (the victim), and the victim’s nephew, Antonio Velez, (Velez). At approximately 5:00 p.m., the victim and Velez went inside the home of Velez's aunt. This same woman was Hernandez’s girlfriend. Hernandez then entered the house and told the victim and Velez to go outside to drink. At this time, the victim became angry and followed Hernandez out of the house. The victim then pushed Hernandez down the stairs and Hernandez fell to the sidewalk. The victim pulled a knife and started chasing Hernandez around a car. Hernandez and the victim had been friends for sixteen years. As he was being chased, Hernandez stated to the victim, "... put the knife away. You know how much I love you, I don’t want to fight with you.” (N.T. 3/21/91 at p. 395). Testimony varied as to recollections of what occurred next. While some witnesses to the event, including Hernandez, testified that Hernandez was handed a gun while he was struggling with the victim, other witnesses testified that the victim had put the knife away and turned away from Hernandez, Hernandez went into the house and retrieved a gun, and then shot the victim in or around the back.

Hernandez was subsequently charged and tried for criminal homicide, murder (first degree), murder (third degree), voluntary manslaughter, two counts of aggravated assault, recklessly endangering another person, possession of an instrument of crime, and firearms not to be carried without a license. Upon the completion of testimony, the trial court gave the appropriate instructions to the jury on these charges, as well as a charge regarding self-defense and voluntary intoxication. On its own initiative the trial court also included the following “mercy” charge as to the murder counts: (N.T. 3/22/91 at p. 508). The trial court did not provide the jury with further instruction as to how they were to mark their verdict sheet in the event they chose to exercise mercy.

Even if you find [Hernandez] guilty of first degree murder, you may, nevertheless, exercise your power of mercy and return a verdict, only if of murder of, [sic] say, the third degree. By the same token, if you find [Hernandez] guilty of murder in the first or third degree, you may again, exercise your power of mercy and return a verdict of voluntary manslaughter. Now whether or not you wish to exercise that power or not, is solely up to you as the jury.

Following deliberation, the jury returned a verdict of “guilty with mercy” on the charge of first degree murder. (N.T. 3/22/90 at p. 550). The jury returned the verdict sheet without making any finding as to third degree murder and voluntary manslaughter. The trial court, upon noting the verdict, called a sidebar conference and counsel was permitted to view the verdict sheet. After discussion, it was decided that the jury should not be involved any further in the case. Although the jury was polled for unanimity as to the first degree murder verdict, the members were not asked to explain their response. The trial court then deferred sentencing, reserving the interpretation of the jury’s verdict.

At sentencing, the trial court construed the verdict of first degree murder “guilty with mercy” to be an intent to invoke the mercy-dispensing power of the jury. Thus, the trial court concluded that the intent as expressed on the verdict slip was equivalent to a constructive verdict of murder in the third degree. In its appeal, the Commonwealth contends, and supports with federal caselaw, that “with mercy” should be treated as mere surplusage and, therefore, Hernandez should have been sentenced to a first degree murder charge. Hernandez claims that the trial court usurped the function of the jury, could not construe their true intent, and, therefore, that the case must be remanded for new trial and/or the entry of judgment notwithstanding the verdict. In the alternative, Hernandez contends that the matter should be resolved in his favor and, upon remand, he should be sentenced on the voluntary manslaughter charge.

A panel of this Court has recently summarized the present status of the mercy-dispensing function of the jury as follows:

In Commonwealth v. Jones, 457 Pa. 568, 578-574, 319 A.2d 142, 148, cert. denied, 419 U.S. 1000, 95 S.Ct. 816, 42 L.Ed.2d 274 (1974), our Supreme Court held that “a defendant under indictment of murder will be entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter.” (emphasis in original). Although Jones was based upon a killing under the Penal Code of 1939, the rule of that ease was extended to cover a murder brought under the Crimes Code of 1972, thus giving a defendant charged with murder the unconditional right to request an instruction on voluntary manslaughter under Section 2503(b). Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978). Upon reflection, the Supreme Court overruled Manning in Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), finding that the rule of Jones had no application under Section 2503(b), the “unreasonable killing” voluntary manslaughter. However, because the trial court in Carter instructed the jury as to a Section 2503(a), “heat of passion killing,” the Court did not determine whether a charge on Section 2503(a) need be given pursuant to that provision. Id., 502 Pa. at 441 [n. 8], 466 A.2d at 1331 n. 8. Hence, because Carter overruled Manning and, in turn, Jones, only as to the issuance of an instruction on Section 2503(b), we are obligated to apply the rule of Jones where a request for a “heat of passion” instruction has been made.

Commonwealth v. Mays, 361 Pa.Super. 554, 562, 528 A.2d 357, 360-61 (1987) (footnote omitted), alloc, den’d., 516 Pa. 613, 531 A.2d 780. See also Commonwealth v. Mignogna, 401 Pa.Super. 188, 585 A.2d 1 (1990) (Pennsylvania law still requires, upon request, a heat of passion instruction even in the absence of such evidence).

However another panel of this Court has concluded that no vestige of Jones, supra, remains. Judge Wieand, in Commonwealth v. Toledo, 365 Pa.Super. 224, 281, 529 A.2d 480, 484 (1987), alloc. den’d., 517 Pa. 622, 538 A.2d 876, wrote as follows:

The fact that Jones has not been overruled expressly by the Supreme Court does not mean that inferior courts can blithely ignore the subsequent history of its holding or the guidance given by the Supreme Court in the foregoing footnote.[] In view thereof, we will not hold, as appellant would have us do, that the trial court committed error by refusing a defense request to charge on “héat of passion” voluntary manslaughter where such a defense was not made an issue at trial and where the evidence would not reasonably have supported such a finding. We are unable to conclude rationally that a different rule should obtain where voluntary manslaughter is based on “heat of passion” than where it is based on “unreasonable belief.”

All three cases are harmonized by the fact that all defendants were convicted of first or second degree murder, even though the court had instructed on a lesser degree of murder. The panels concluded that the juries could have exercised a mercy-dispensing power and brought back a verdict of third degree murder, and by their failure to do so manifested a disinclination toward mercy. Hence, the defendant in each case suffered no prejudice from the failure to give the charge.

Like Judge Wieand in Commonwealth v. Toledo, supra, we are hard-pressed to accept the logic of the “last remnant” of the mercy-dispensing power of the jury. We too are unable to conclude rationally that a charge on “heat of passion” voluntary manslaughter, unsupported by the evidence, must be given upon request but that an “unreasonable belief” voluntary manslaughter charge need not be given when it is likewise unsupported by the evidence.

In the present case, there was evidence presented which, if believed, would support a verdict of voluntary manslaughter. Hernandez was charged with, and the jury was instructed in regard to, both types of voluntary manslaughter discussed in Commonwealth v. Mays, supra. Thus, whether the homicide committed by Hernandez constituted voluntary manslaughter was at issue. The trial court nevertheless decided to give the above mercy charge. The trial court supports its giving of the charge, stating that:

no where is it found within Pennsylvania case law [sic] that a court cannot charge on mercy and thus instruct the jury that it can find a defendant guilty of a lesser included offense where the evidence adduced at trial would support such a finding. There is no absolute rule promulgated by our appellate courts expressly prohibiting a trial court from dispensing a mercy charge provided there is ample evidence to support the lesser included offenses. The rule enunciated against dispensing a mercy charge is applicable only to those limited situations where there is no factual support for the lesser included offense.

(Trial Court Opinion at p. 5) (citations omitted). Such a charge was inappropriate and could only lead to jury confusion. We cannot discern a distinction between giving a “mercy charge” in the form of an instruction on a lesser included offense in the absence of such evidence, and a “mercy charge” which tells the jury that even if it finds a higher degree of homicide occurred based on the facts as it perceives them to be, it could return a verdict on a lesser included offense. In both situations the court is authorizing the jury to return a verdict based upon an emotional reaction rather than the facts presented.

The jury in the present case was required to determine whether Hernandez committed the homicide with a specific intent to kill, with malice, in the heat of passion, or under the unreasonable belief that his actions were justified. Thus, the jury, accepting as true one or both of the latter two options, was capable of returning a verdict of voluntary manslaughter based upon the evidence rather than mercy. Except for the possible remnant of the rule recognized by Commonwealth v. Mays, supra, discussed above, “[i]n no case will a defendant be entitled to a charge which invites the jury to return its verdict based upon mercy rather than fact.” Commonwealth v. Hart, 388 Pa.Super. 484, 497, 565 A.2d 1212, 1218 (1989), alloc. den’d., 525 Pa. 642, 581 A.2d 569, quoting Commonwealth v. Grove, 363 Pa.Super. 328, 345, 526 A.2d 369, 378 (1987) (emphasis in original), alloc. den’d., 517 Pa. 630, 539 A.2d 810. The trial court’s charge in the present case invited the jury to do just that. In effect, the charge the trial court gave to the jury in the present case told them that, based on the evidence as they perceived it to be, they could find malice or specific intent to kill — thereby rejecting evidence of heat of passion or unreasonable belief — yet still find Hernandez guilty of only voluntary manslaughter. We find such a result violative of the philosophy underlying Commonwealth v. Carter, supra, and its progeny.

The verdict rendered in the present case readily reveals the confusion caused by the mercy charge. As stated above, although the trial court gave the mercy charge and later explained to the jury how they were to complete the verdict sheet, the trial court failed to instruct the jury how, if they decided to dispense mercy, the completion of the verdict sheet would be affected. We cannot condone the trial court’s interpreting this jury’s incomplete findings to arrive at a “constructive verdict.” We find the federal caselaw cited by the Commonwealth to be distinguishable to the facts of the present case, because, unlike the situation in those cases, the trial court in the present case specifically instructed the jury that its mercy-dispensing function could influence their finding of guilt. Thus, the “with mercy” language must be regarded as an integral part of the jury’s finding and not mere surplusage. The difficulty lies with the fact that the jury did not clearly state how they used their mercy-dispensing function. Upon receiving such a verdict, the trial court should have sent the jury back to deliberate after further instruction, asking them to clarify their verdict. By answering the charge of first degree murder with “guilty with mercy,” and leaving the verdict on the third degree murder and voluntary manslaughter unanswered, the jury left to speculation the true intent of their verdict. This the jury cannot do. While we cannot accept the “constructive verdict” of third degree murder imposed by the trial court, we cannot likewise grant the relief requested by Hernandez and direct that he be sentenced to voluntary manslaughter. Thus, we are constrained to vacate the judgment of sentence and remand for a new trial.

Judgment of sentence is vacated and the matter is remanded for new trial. Jurisdiction relinquished.

      . As stated by the trial court: "Witnesses had a varied impression of whether the victim was shot in the front, side or back or a combination of all three.” (Trial Court Opinion at p. 2). Autopsy reports revealed that the victim was shot in the upper arm and through the back of the chest.

      . 18 Pa.C.S.A. § 2501(a).

      . 18 Pa.C.S.A. § 2502(a).

      . 18 Pa.C.S.A. § 2502(c).

      . 18 Pa.C.S.A. § 2503(a), § 2503(b).

      . 18 Pa.C.S.A. § 2702(a)(1), § 2702(a)(4).

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 907(a), 907(b).

      . 18 Pa.C.S.A. § 6106(a). The trial court granted Hernandez’s motion for demurrer on this charge prior to charging the jury.

      . Hernandez was found guilty of all the remaining charges.

      . The footnote refers to our Supreme Court’s decision in Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), which reads as follows:
      There is little or no vitality left to this practice which stems from this Court’s decisions in Commonwealth v. Jones, [supra], and Commonwealth v. Manning, [supra ]. The continuing validity of the rule was seriously undermined by our decisions holding that an instruction on involuntary manslaughter may be given only where the evidence would support such a verdict. Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980); Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980). The death knell to the practice regarding instructions on voluntary manslaughter was sounded in Commonwealth v. Carter, [supra ], wherein a majority of this Court held that a trial court may charge on the “unreasonable belief’ sub-class of voluntary manslaughter, 18 Pa.C.S.A. § 2503(b), only where evidence exists that would support such a verdict. 502 Pa. 433, 466 A.2d 1328. The majority did not decide the propriety of the practice of charging the jury on “heat of passion” voluntary manslaughter, 18 Pa.C.S.A. § 2503(a) in the absence of evidence, 502 Pa. at 441 n. 8, 466 A.2d at 1331 n. 8, although the concurring opinions of this author and Mr. Justice McDermott would have abolished that practice as well.

        Commonwealth v. Toledo, 365 Pa.Super. at 230-31, 529 A.2d at 483-84, citing Commonwealth v. Frey, 504 Pa. at 450 n. 10, 475 A.2d at 711 n. 10.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    603 A.2d 1044
    COMMONWEALTH of Pennsylvania v. John B. SNOWDY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed Feb. 26, 1992.

      Gary B. Zimmerman, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

      Before CAVANAUGH, WIEAND and HESTER, JJ.
   HESTER, Judge:

John B. Snowdy appeals from the judgment of sentence entered in the Court of Common Pleas of Allegheny County on August 10, 1990, following his conviction by a jury of two counts of conspiracy and one count each of possession, possession with intent to deliver, and delivery of a controlled substance. He was sentenced to an aggregate term of imprisonment of eight to twenty years and directed to pay both a fine and the cost of prosecution. For the reasons set forth below, we affirm.

The procedural history of this case may be summarized as follows. On June 13, 1987, shortly after arriving in Allegheny County from Florida, appellant utilized the Ross Township motel room that his traveling companion had rented to consummate a large cocaine deal with Glenn Schnarviler, a confidential police informant. Following the completion of that transaction, officers of the Allegheny County Police Department arrested appellant and charged him with one count each of conspiracy, possession, possession with intent to deliver, and delivery of a controlled substance. By a second complaint filed the same day, appellant was charged with an additional count of conspiracy in connection with a drug deal that he and Schnarviler completed prior to the latter’s engagement as an informant.

On November 6, 1989, appellant was convicted of the charged offenses. The trial court subsequently denied appellant’s post-verdict motions and imposed the described sentence. Thereafter, upon determining that defense counsel ineffectively failed to file a requested appeal within the appropriate thirty-day period, the court granted appellant permission to pursue this appeal nunc pro tunc.

Appellant asserts that the trial court improperly denied demurrers relating to both conspiracy counts. However, as our review of the record reveals that appellant’s contentions in this regard are either waived or without merit, we find this assertion affords him no relief. In Commonwealth v. Corradino, 403 Pa.Super. 251, 588 A.2d 936 (1991), we considered the propriety of a trial court’s denial of a demurrer and set forth the well-established test utilized in resolving that issue. Quoting Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980), we stated:

The test to be applied in ruling on a demurrer is whether, accepting as true all of the prosecution’s evidence and all reasonable inferences therefrom, it is sufficient to support a finding by the fact-finder that the defendant is guilty beyond a reasonable doubt.

Commonwealth v. Corradino, supra, 403 Pa.Super. at 256, 588 A.2d at 939. Utilizing these principles, we must examine the evidence presented by the Commonwealth in conjunction with the specific arguments raised by appellant.

Our review of the Commonwealth’s evidence reveals the following facts. In 1986, David Jackson informed Glenn Schnarviler, an acquaintance, that appellant, a resident of Florida, could fill his cocaine orders. Consequently, Jackson provided Schnarviler, who resided in Allegheny County, with appellant’s beeper number. In the months that followed, Schnarviler and appellant completed a number of increasingly larger cocaine transactions.

In May, 1987, Schnarviler placed a telephone call to appellant’s beeper. When appellant returned the call, Schnarviler informed him of his interest in purchasing three kilograms of cocaine. After some discussion, the two agreed upon the price for the cocaine, $74,000, the place for its delivery, Miami, and Schnarviler’s mode of transportation to Miami, airplane. On May 22, 1987, Schnarviler informed appellant he was ready to depart and boarded a flight for Miami at the Greater Pittsburgh International Airport.

Upon arriving in Miami, Schnarviler was met by appellant. The two men then proceeded to a nearby motel room where Schnarviler provided appellant with the agreed upon cash. Appellant accepted the money and exited the room. Several hours later, he reentered the room, handed the cocaine to Schnarviler, and left.

After he returned to the Pittsburgh area, Schnarviler hid two of the kilograms and “fronted” the third one to Jackson for sale on the street. On the evening of June 2, 1987, Officer David Walls of the Allegheny County Police Department purchased the entire kilogram from Jackson for $39,-000. Consequently, Jackson and his girlfriend, Lori Lascar, were arrested. Later that evening, during the course of his interrogation, Jackson agreed to cooperate with the police. He named Schnarviler as his supplier, indicated that he owed Schnarviler $36,000 for the kilogram, and delivered official currency in that amount to Schnarviler’s residence.

As a result of Jackson’s actions, Schnarviler also was arrested. A short while later, he informed the police of the circumstances surrounding his purchase of the cocaine and agreed to act as a confidential informant in a transaction involving appellant. Accordingly, Schnarviler, who also provided the police with the two kilograms which he had hidden, engaged in a number of monitored telephone conversations with appellant in an effort to convince him to deliver cocaine to Pittsburgh. Eventually, the two men agreed that appellant, in exchange for $118,000, would deliver one kilogram of cocaine to Schnarviler in Pittsburgh and that Schnarviler subsequently would travel to Florida to take possession of four additional kilograms of the substance. Shortly thereafter, in accordance with this agreement, appellant, accompanied by Hugh Sheridan, began the journey to Allegheny County.

On June 13,1987, following their arrival in the Pittsburgh area, Sheridan rented a room at a Ross Township motel and appellant telephoned Schnarviler. Later that day, immediately after appellant and Schnarviler completed the cocaine transaction in the motel room, appellant was arrested.

Appellant contends that the evidence presented by the Commonwealth was insufficient to demonstrate that Pennsylvania had jurisdiction over the conspiracy count arising from the May 22, 1987 transaction. This contention is devoid of merit.

Preliminarily, we note that the boundaries of the Commonwealth’s jurisdiction over criminal matters are set forth in 18 Pa.C.S. § 102(a). In pertinent part, that section states:

(a) General rule. — Except as otherwise provided in this section, a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable if either:
(3) conduct occurring outside this Commonwealth is sufficient under the law of this Commonwealth to constitute a conspiracy to commit an offense within this Commonwealth and an overt act in furtherance of such conspiracy occurs within this Commonwealth;
(4) conduct occurring within this Commonwealth establishes complicity in the commission of, or an attempt, solicitation or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of this Commonwealth[.]

Thus, in order to determine the correctness of appellant’s contention, we must decide if the Commonwealth adduced evidence demonstrating the applicability of either of the provisions in question. We begin our analysis on this issue with subsection (a)(3).

The crime of conspiracy is defined in 18 Pa.C.S. § 903(a). According to that section, a defendant is guilty of conspiring with another person to commit a crime if with the intent of promoting or facilitating its commission he agrees with such other person that they or one or more of them will engage in conduct which constitutes that crime or an attempt or solicitation to commit that crime.

“The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, [265 Pa.Super. 494, 402 A.2d 546 (1979)]. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra; Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy may not be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy “may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958).

Commonwealth v. Volk, 298 Pa.Super. 294, 300-01, 444 A.2d 1182, 1185 (1982). See also Commonwealth v. Lanager, 360 Pa.Super. 578, 521 A.2d 53 (1987); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983).

In the present case) the Commonwealth introduced evidence demonstrating that appellant, while conversing from a telephone located in Florida, agreed to sell Schnarviler, a resident of Allegheny County, three kilograms of cocaine and that the transaction was consummated in Miami on May 22,1987. In addition, it adduced evidence indicating that Schnarviler previously had purchased cocaine from appellant. In light of the significant relationship of the parties, the large amount of cocaine at issue, and the fact of Schnarviler’s residence in Allegheny County, it is clear that Schnarviler planned to distribute the cocaine in this Commonwealth. Therefore, appellant, by both consenting to and consummating the sale, conspired to participate in and benefit financially from Schnarviler’s criminal objective. Thus, we find that the evidence produced by the Commonwealth demonstrates that the actions committed by appellant in Florida are sufficient to establish his involvement in a conspiracy relating to the distribution of cocaine in Pennsylvania.

Having determined that the evidence presented by the Commonwealth was sufficient to satisfy the initial requirement of 18 Pa.C.S. § 102(a)(3), we turn to the question of whether it also demonstrated that appellant or some person for whom he was accountable committed an overt act in furtherance of the conspiracy in Pennsylvania. As mentioned previously, the Commonwealth adduced evidence indicating that Schnarviler, in furtherance of the conspiracy, boarded an airplane bound for Miami at the Greater Pittsburgh International Airport. Since it is clear that a defendant is responsible for all actions undertaken pursuant to a conspiracy by a coconspirator, see 18 Pa.C.S. 903(e), the Commonwealth established that appellant committed the requisite overt act. Thus, contrary to the claims raised by appellant, we conclude that the evidence produced by the Commonwealth was sufficient to demonstrate that the courts of Pennsylvania possessed the requisite jurisdiction over the conspiracy count.

Appellant also contends that the evidence presented by the Commonwealth in connection with the May 22, 1987 conspiracy count merely established a buyer-seller relationship and therefore, cannot support his conviction for that offense. However, as we demonstrated in our discussion regarding jurisdiction, the evidence adduced by the Commonwealth inferentially showed that appellant agreed with, participated in, and benefited from Schnarviler’s plan to distribute cocaine in Allegheny County. Accordingly, we conclude that this claim of error must fail.

Appellant’s final claim regarding the trial court’s denial of his demurrers relates to the conspiracy count arising from the June 13, 1987 transaction. Appellant contends that since Hugh Sheridan, his sole alleged coconspirator, was acquitted in prior proceedings of all charges arising out of the incident, he could not be convicted of that offense. Although our review of the record reveals that appellant filed an unsuccessful pretrial motion seeking dismissal of the charge on identical grounds, it demonstrates that his demurrer questioned only the sufficiency of the evidence utilized to prove Sheridan’s involvement in the conspiracy. Thus, as appellant failed to raise the matter in connection with the demurrer request, we find that his claim in this regard is waived. See Commonwealth v. Johnson, 368 Pa.Super. 427, 534 A.2d 511 (1987) (failure to raise an argument in timely manner at trial results in its waiver).

Moreover, even if we determined that appellant properly had preserved the issue for our review, it would afford him no relief since we recently concluded that the acquittal of an alleged conspirator in a separate trial does not preclude finding his only alleged coconspirator guilty of conspiracy in subsequent proceedings. See Commonwealth v. Phillips, 411 Pa.Super. 329, 601 A.2d 816 (1992).

Appellant also asserts that the trial court erroneously permitted Thomas Dayton, an employee of the Allegheny County Department of Laboratories, to testify as an expert witness and thereby indicate that the substance obtained during the June 13, 1987 transaction contained cocaine. In this regard, he alleges that Dayton lacked the qualifications necessary to give such testimony. This assertion is without merit.

In Commonwealth v. McCloy, 393 Pa.Super. 217, 220-21, 574 A.2d 86, 88 (1990), we considered the propriety of a trial court’s decision to permit certain expert testimony and, quoting Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987), overruled on other grounds, Common wealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991) (ien banc), we stated:

To qualify as an expert witness, a witness need only have a “reasonable pretension to specialized knowledge,” on a subject for which expert testimony is admissible. Commonwealth v. Washington, 235 Pa.Super. 339, 340 A.2d 896 (1975). An expert’s pretension to specialized knowledge may be based upon practical, occupational, or other experiential training; the expert need not have gained expertise through academic training. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986); Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980). The determination of whether a witness is qualified to offer an expert opinion on a particular subject is a matter addressed to the sound discretion of the trial court, and its discretion will not be reversed absent a clear abuse of discretion. Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986); Commonwealth v. Ellis, supra; Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984).

With these principles in mind, we turn to the merits of appellant’s claim.

During voir dire, Dayton testified that he obtained a Bachelor of Science degree in chemistry from Gannon University and a Masters degree in pharmacology and toxicology from Duquesne University but had taken no subjects specifically relating to drug identification. In addition, Dayton indicated that he had been employed as a criminalist for the Allegheny County Department of Laboratories for nine years, that his position consisted exclusively of analyzing substances for the presence of drugs, and that many of his analyses concerned cocaine. Furthermore, Dayton stated that he had attended various seminars relating to instrumental methods utilized in drug analyses.

Despite Dayton’s admission that he had received no formal education in the area of drug identification, we believe that the trial court properly could have concluded that Dayton possessed the requisite knowledge to testify as an expert concerning the identification of the substance obtained from appellant based upon Dayton’s experience. Our conclusion in this regard is unaltered by the fact that Dayton apparently had difficulty in recalling the precise chemical formula for cocaine. Accordingly, we decline to disturb the trial court’s decision on the matter.

Finally, appellant asserts that the trial court erroneously permitted Dennis Hahn, another employee of the Allegheny County Department of Laboratories, to testify after he violated the court’s sequestration order by conversing with Dayton about the case. This assertion is without merit.

It long has been clear that a trial court possesses the discretion to permit a witness who has violated a sequestration order to testify. Commonwealth v. Mokluk, 298 Pa.Super. 360, 444 A.2d 1214 (1982). In exercising that discretion, which will be reversed only in the absence of reasonable support, the court should consider the seriousness of the violation, its impact on the testimony of the witness, its impact on the case, whether the witness intentionally disobeyed the sequestration order, and whether the party calling the witness procured the disobedience. Id. In the present case, the trial court supported its decision by implying that Hahn had unintentionally violated the sequestration order and by indicating that the violation neither impacted on the case or prejudiced appellant. See Trial court opinion at 26-27.

An examination of the record reveals that the trial court’s conclusions are supported by ample evidence. During voir dire, Hahn, who was called to testify as an expert concerning the purity of the cocaine contained in the substance obtained from appellant, specifically indicated that he had been unaware of the sequestration order at the time of its violation. Furthermore, as he had been called to testify as to the substance’s purity rather than its identification, his discussion with Dayton could have had little impact upon either his testimony or the outcome of the case. Accordingly, we conclude that the trial court did not abuse its discretion by permitting Hahn to testify.

Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

      . While our review of appellant’s brief demonstrates that he does not mention the term "demurrer’’ in connection with the arguments at issue in this discussion, we believe that his challenges clearly relate to the alleged denial of demurrer requests. Our conclusion in this regard is supported by a close reading of those arguments, which indicate that the trial court should have dismissed the conspiracy counts at the conclusion of the Commonwealth’s case-in-chief.

      . In light of our holding, we do not address the applicability of 18 Pa.C.S. § 102(a)(4).

      . We note that appellant also asserts in his argument that the various tests performed by Dayton could not conclusively identify the substance obtained from appellant as cocaine. This assertion, which raises no concern regarding Dayton's qualifications, has no impact upon the trial court’s decision to permit him to testify as an expert. Instead, it raises concerns regarding the weight to be accorded Dayton's identification of the substance. Consequently, we need not address the matter further.


author:
      BECK, Judge:
      TAMILIA, Judge,

text:
    603 A.2d 1050
    Richard F. BIBOROSCH t/a the R.F. Biborosch Agency v. TRANSAMERICA INSURANCE COMPANY and Industrial Indemnity Company and Employers Reinsurance Corp. and Raymond B. Jewell. Appeal of TRANSAMERICA INSURANCE COMPANY and Industrial Indemnity Company, Appellant. Richard BIBOROSCH, t/a R.F. Biborosch Agency v. TRANSAMERICA INSURANCE COMPANY and Industrial Indemnity Company and Employers Reinsurance Corporation and Raymond B. Jewell. Appeal of EMPLOYERS REINSURANCE CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued April 17, 1991.
    Filed Feb. 27, 1992.

      Leslie M. Cyr, Philadelphia, for appellant (at 990) and for Transamerica Ins., appellee (at 991).
    Susan McLaughlin, Philadelphia, for appellant (at 991) and for Employers Reinsurance, appellee (at 990).
    Robert R. Reeder, Philadelphia, for Biborosch, appellee.
    Before MONTEMURO, BECK and TAMILIA, JJ.
   BECK, Judge:

In this appeal we are asked to decide whether three professional liability insurers have a duty to defend their insured, a general insurance agent and manager of a general insurance agency, against claims arising out of the insured’s discharge of a soliciting agent working in the insured’s agency.

The issue arises out of the following scenario. Appellee, Richard F. Biborosch, is a general insurance agent and manager of a general insurance agency engaged in the solicitation of applications for and the sale and servicing of the insurance products of Penn Mutual Life Insurance Company and Penn Insurance and Annuity Company (hereinafter collectively referred to as “Penn”). Pursuant to Biborosch’s contracts with Penn, his duties as agency manager included the recruiting, training and supervision of soliciting agents and brokers. Biborosch contends that in connection with these duties, in late 1986 he and Penn became convinced that one of the soliciting agents working in Biborosch’s agency, Raymond B. Jewell, was replacing Penn policies with policies of a competitor. In other words, instead of renewing Penn policies on behalf of the agency’s clients, Jewell was thought to be obtaining new policies issued by a different insurer. As a result, Biborosch and Penn terminated Jewell and cancelled his license to sell Penn products.

On July 7, 1987, Jewell filed a multi-count complaint against Biborosch and Penn in the Chester County Court of Common Pleas (the “Jewell action”). He alleged tortious interference with contractual relations, breach of contract, wrongful discharge and breach of the duty of good faith and fair dealing.

Biborosch maintained professional liability insurance with three insurers, Transamerica Insurance Company, Employers Reinsurance Corporation, and The Industrial Indemnity Company. Upon being notified of the Jewell action, Biborosch requested that the three insurers undertake the defense of that action, contending that the claims raised in the Jewell action potentially fell within the coverage of the policies. All three insurers refused this request on the ground that Jewell’s claims did not potentially fall within the coverage of the various policies. Biborosch responded to this refusal by instituting a declaratory judgment action against all three insurers in the Montgomery County Court of Common Pleas. He sought a declaration that the insurers owed him a duty of defense and indemnity under the policies. After the pleadings stage was completed and some discovery conducted, all parties filed motions for summary judgment. On March 9, 1990, the trial court denied the insurers’ motions and granted Biborosch’s motion to the extent that it requested a declaration that the insurers had a duty to defend the Jewell action. All three insurers appealed, and their appeals have been consolidated before this court.

The duty to defend is different from and greater than the duty to indemnify. If the factual allegations of the complaint against the insured state a claim which would potentially fall within the coverage of the policy, then the insurer has the duty to defend. See D’Auria v. Zurich Ins. Co., 352 Pa.Super. 231, 507 A.2d 857, 859 (1986) (citing, inter alia, Pacific Indem. Co. v. Linn, 590 F.Supp. 643 (E.D.Pa.1984), aff'd, 766 F.2d 754 (3d Cir.1985)). As the Supreme Court has stated, “[i]t is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend.” Springfield Twp. v. Indemnity Ins. Co. of North America, 361 Pa. 461, 464, 64 A.2d 761 (1949). In making this determination, the factual allegations of the complaint are taken to be true and the complaint is to be liberally construed with all doubts as to whether the claims may fall within the coverage of the policy to be resolved in favor of the insured. Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959). Thus, we must look to two sources to decide whether a duty to defend exists. We must interpret the insurance policy to determine the scope of coverage. Then, we must analyze the complaint filed against the insured to determine whether the claims asserted potentially falls within that coverage. Id.; see also Seaboard Industries, Inc. v. Monaco, 258 Pa.Super. 170, 392 A.2d 738 (1978).

Since the terms of the three policies at issue are not identical, each containing its own distinct description of the coverage provided, we must conduct a separate analysis of the coverage provided under each policy in order to determine each insurer’s duty to defend the Jewell action.

I. Transamerica Policy.

The Transamerica policy provides, in pertinent part, as follows:

I. COVERAGE — PROFESSIONAL LIABILITY AND PERSONAL INJURY:
To pay on behalf of the INSURED all sums which the INSURED shall become legally obligated to pay as DAMAGES because of:
A. Any act, error or omission of the INSURED, or any person for whose acts the INSURED is legally liable in the rendering or failing to render PROFESSIONAL SERVICES for others in the conduct of the NAMED INSURED’S profession as Life Underwriter, Licensed Life, Accident and Health Insurance General Agent or Manager, Licensed Life, Accident and Health Insurance Broker and Registered Representative while there is in effect a contract between the NAMED INSURED and the insurance company named in Item 1 of the Declarations;
D. Any actual or alleged negligent failure of an INSURED that is also a General Agent or Manager of the insurance company named in Item 1 of the Declarations to supervise, manage or train any NAMED INSURED.
H. “PROFESSIONAL SERVICES’’ shall mean those services necessary or incidental in the conduct of the insurance business of the NAMED INSURED including:
1. the sale and/or servicing of life insurance, disability income insurance, annuities, accident and health insurance plans (including Blue Cross/Blue Shield Organizations);
2. the sale and/or servicing of variable annuities____
3. the sale and/or servicing of employee benefit plans____
4. advice, consultation, administration and services in conjunction with all of the above, whether or not a separate fee is charged.

This provision can be reduced to three basic requirements. First, the policy requires that the damages the insured seeks to bring within the coverage of the policy arise from acts, errors or omissions of the insured in the rendering or failing to render professional services. Since the phrase “professional services” is defined in the Transamerica policy, this requirement must be construed in light of the policy definition. That definition contains two basic parts. Professional services 1) are services necessary or incidental to the conduct of the insurance business of the insured; and 2) specifically include the sale and/or servicing of various insurance products and advice, consultation, administration and services in conjunction therewith.

The second basic requirement of the policy is that the services must have been rendered to others. The phrase “to others” is undefined.

The third requirement is that the services must have been performed in the conduct of the insured’s profession as, inter alia, an insurance broker and insurance general agent or manager.

Our task is to construe these requirements to determine if they are potentially fulfilled by the claims made in the Jewell action. This analysis must begin with a close examination of the complaint filed in that action to determine the nature of those claims. The Jewell action is premised almost entirely on the wrongful discharge of Jewell by Biborosch and Penn. The complaint alleges that the termination of Jewell from the Biborosch agency and the termination of his license to sell Penn insurance products are actionable both in tort, because they were motivated by ill will, constituted violations of public policy and were in breach of a duty of fair dealing, and in contract, because they were in breach of an alleged employment contract. The complaint further alleges that after Jewell was terminated, Biborosch and Penn intentionally interfered with Jewell’s contractual relationship with a third party who was also a soliciting agent for Penn.

We view these allegations as potentially falling within the scope of the Transamerica policy. We reach this conclusion primarily because the Transamerica policy specifically insures Biborosch not only as an insurance broker, but also as a general agent or manager. This crucial aspect of the Transamerica policy brings the Jewell action potentially within the coverage of the policy, thereby giving rise to the duty to defend.

Clearly, the first requirement of the policy as stated above is fulfilled by Jewell’s claims, all of which arise from his allegedly wrongful discharge and termination of his license to sell Penn products. Biborosch’s termination of Jewell was clearly an act by Biborosch committed in the course of rendering professional services as general manager of the agency. Moreover, since professional services are defined as any acts necessary or incidental to the conduct of Biborosch’s insurance business, including, inter alia, administration in connection therewith, it can readily be seen that Biborosch’s action in terminating Jewell falls within this definition as well. In terminating Jewell, Biborosch was engaged in the conduct and administration of his insurance business.

The third requirement of the policy is also fulfilled by Jewell’s claims. This requirement limits the coverage of the policy to professional services rendered in the conduct of Biborosch’s profession as, inter alia, general manager of the agency. We have no doubt that terminating a soliciting agent working in the agency that Biborosch was managing is an act that falls within the potential coverage of the policy. In fact, Biborosch’s employment contracts with Penn, in which the terms of his employment as general agency manager are defined, specifically refer to Biborosch’s responsibilities for supervising soliciting agents like Jewell and for terminating their contracts whenever Penn determined that their licenses to sell Penn products should be terminated.

The final requirement of the policy is that the professional services in question have been rendered “to others.” The policy itself does not define this phrase. There are no limitations on the scope of the phrase, whether to purchasers of insurance products from Biborosch or otherwise, and there is no other section of the policy that might give us guidance in construing this phrase. Although Transamerica argues that the phrase must be read as meaning “to clients of the insured”, we see no indication in the policy itself that this limited construction was intended by the parties. In addition, we note that other courts have refused to limit the meaning of this phrase in a professional liability policy to clients of the insured professional. See Continental Casualty Co. v. Cole, 809 F.2d 891, 896 (D.C.Cir.1987). Since the meaning of “to others” is subject to more than one reasonable interpretation, we find the phrase patently ambiguous and will construe this portion of the policy against the insurer. We find that the phrase “to others” does not necessarily exclude from coverage acts performed by Biborosch in furtherance of his duties as general agency manager. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983).

Transamerica seeks to avoid the interpretation of its policy set forth above by making what is basically one argument. Transamerica strenuously argues that it would be error to conclude that the Jewell complaint falls within the potential coverage of the policy because Biborosch’s actions in terminating Jewell were clearly related to “running the business” of the agency and were not, therefore, “professional” in nature. In making this argument, Transamerica does not focus on the precise language of its policy, but rather on certain case law from the federal courts and other jurisdictions in which the phrase “professional services” has been defined to exclude purely business decisions by certain professionals. These cases, Transamerica argues, make it clear that terminating an employee is not a “professional” act within the meaning of the phrase professional services.

One of the authorities urged upon us by Transamerica is the decision of the Court of Appeals for the Third Circuit in Harad v. Aetna Casualty and Surety Co., 839 F.2d 979 (3d Cir.1988). In Harad, the insured was an attorney who represented an insurance company. In connection with this representation, the attorney signed a verification to an answer and counterclaim on behalf of his client and was then sued for malicious prosecution. The attorney sought a defense from Aetna, his business owner’s policy insurer, who refused. Aetna relied on an exclusion in its policy which excluded injuries arising out of the rendering of professional services. The Third Circuit held that the attorney’s signing of the answer was clearly within the exclusion. In doing so, the court referred with approval to the following definition of “professional services”:

Something more than an act flowing from mere employment or vocation ... [t]he act or service must be such as exacts the use or application of special learning or attainments of some kind. The term “professional” ... means something more than mere proficiency in the performance of a task and implies intellectual skill as contrasted with that used in an occupation for production or sale of commodities. A “professional” act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual. In determining whether a particular act is of a professional nature or a “professional service” we must look not to the title or character of the party performing the act, but to the act itself.

Id. at 984 (citing Marx v. Hartford Accident and Indemnity Co., 183 Neb. 12, 13-14, 157 N.W.2d 870, 871-72 (1968)).

The Harad court further explained the latter part of this definition, which requires that the analysis focus on the particular act in question, as follows:

... the practice of law, as other similarly regulated professional activity in today’s world, has two very different and often overlooked components — the professional and the commercial. The professional aspect of a law practice obviously involves the rendering of legal advice to and advocacy on behalf of clients for which the attorney is held to a certain minimum professional and ethical standards. The commercial aspect involves the setting up and running of a business, i.e., securing office space, hiring staff, paying bills and collecting on accounts receivable, etc., in which capacity the attorney acting as businessperson is held to the same reasonable person standard as any other.

Id. at 985.

Transamerica argues that this, and similar language in certain other cases, compels the conclusion that personnel decisions and actions are not professional in nature. While we might agree with the statements of the Harad court in a case that presented the same issue as was presented there, we nevertheless do not agree that the Harad court's observations are apposite to this case. Harad did not involve the policy at issue here, which contains its own expansive definition of “professional services,” specifically including all acts “necessary or incidental” to the conduct of the insured's insurance business and administration in connection therewith. More importantly, neither Harad nor any of the other similar cases cited by Transamerica construe policies that insure against liability arising from the performance of the profession of general manager of a business. Unlike the policies in the cited cases, which insured lawyers when acting as lawyers, or doctors when acting as doctors, this policy insures Biborosch when acting as insurance broker and when acting as general manager pursuant to contract with Penn. This policy defines being a general manager of an agency as a covered profession and terminating contracts with soliciting agents like Jewell is clearly an act performed in pursuing that profession.

Therefore, we find that Transamerica does have a duty to defend Biborosch in the Jewell action.

II. Industrial Indemnity Policy.

The Industrial Indemnity policy provides, in pertinent part, that the insurer will provide the following coverage:

To pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of any claims first made against the insured during the policy period, arising out of:
(A) Any act, error or omission of the insured, or any person for whose acts the insured is legally liable in the rendering or failing to render professional services for others in the conduct of the named insured’s profession as life underwriter, licensed life, accident and health insurance general agent or manager, licensed life, accident and health insurance broker or notary public;
(B) Personal injury caused by an offense arising out of the rendering or failing to render professional services for others in the conduct of the named insured’s profession under coverage (a) above including public relations activity;
(C) Any failure in rendering or failing to render professional services under the Employee Retirement Income Security Act of 1974, ERISA, and any amendments thereto which occurs in the conduct of the named insured’s profession under coverage (a) above, other than as a named fiduciary.

Although this policy provision is markedly different from the Transamerica coverage provisions in that this provision does not define the phrase “professional services,” it is equally clear that the Jewell complaint potentially falls within this provision and, therefore, that Industrial Indemnity also has the duty to defend. The major premise on which our holding regarding the Transamerica policy rests is that the Transamerica policy insures Biborosch in his profession as general agency manager and that terminating Jewell was done in furtherance of that profession. The Industrial Indemnity policy also insures Biborosch specifically in his profession as general agency manager. Therefore, the arguments set forth above in regard to finding a duty to defend by Transamerica apply equally here.

Moreover, we note that where a professional liability policy does not contain its own definition of “professional services,” courts sitting in Pennsylvania have found that the phrase can well be regarded as ambiguous and, therefore, must be construed against the insurer. For example, in Danyo v. Argonaut Ins. Cos., 318 Pa.Super. 28, 464 A.2d 501 (1983), a doctor insured under a professional liability policy that contained the undefined phrase “professional services” was sued by an attorney representing one of the doctor’s former patients. The suit alleged that the doctor had failed to prepare certain reports and testify in the former patient’s lawsuit for personal injuries sustained in an automobile accident. The insurer argued that it had no duty to defend the doctor since the claims against him did not arise out of the rendering or failing to render professional services. Id.

A" panel of this court found that the phrase “professional services” as used in that policy was ambiguous. The court emphasized that the policy specifically referred to the fact that professional services included service by the insured as a member of professional boards or committees and found that this suggested that actions beyond the treatment of patients could well be within the coverage of the policy. Thus, the court construed the policy against the insurer and found that the insurer did have a duty to defend the doctor. Id., 318 Pa.Superior Ct. at 30-32, 464 A.2d at 502-03. See also Pacific Indemnity Co. v. Linn, 766 F.2d 754 (3d Cir.1985) (Third Circuit finds phrase “professional services” ambiguous because susceptible to more than one reasonable interpretation).

In light of these cases, it is clear that the use of the undefined phrase “professional services” may well give rise to a finding of ambiguity. This lends further support to our conclusion that Industrial Indemnity has the duty to defend the claims in the Jewell action. Certainly this policy can reasonably be construed to cover actions by Biborosch in his insured professional capacity as general manager of the agency in connection with the personnel who worked in that agency. Since this is at minimum one reasonable interpretation of the policy's coverage provisions, it is the one we must adopt for purposes of analyzing the insurer’s duty to defend. Therefore, we find that Industrial Indemnity has the duty to defend.

III. Employers Reinsurance Policy

[4] The Employers Reinsurance Policy contains the following pertinent coverage provisions:

The Corporation does hereby agree to pay on behalf of the Insured such loss in excess of the applicable deductible stated and within the limit of liability specified in the Declarations sustained by the Insured by reason of liability imposed by law for damages caused by:
(a) any negligent act, error or omission of the Insured or any person for whose acts the Insured is legally liable, or
(b) any claim for liable, slander, invasion of privacy, false arrest, detention or imprisonment, or wrongful entry or eviction against the Insured, arising out of the conduct of the business of the Insured in rendering professional services for others as a life and accident & health insurance agent, broker, general agent or manager and including activities as an insurance consultant and any advertising activities, as respects claims first made against the Insured and reported to the Corporation during the policy period.
... the term “professional services” shall mean those services rendered to others as a life and accident & health insurance agent, broker, general agent, manager, consultant or analyst including but not limited to services with respect to:
1. life insurance, insurance annuities, accident & health . insurance, hospitalization or medical insurance plans ... and health maintenance organizations ...; [and]
2. variable annuities, variable life insurance contracts providing for participation in life insurance company separate investment accounts;

As in the case of the Transamerica policy, the Employers Reinsurance policy contains its own broad definition of professional services and specifically includes Biborosch’s profession as a general agency manager in its list of insured professions. Thus, our analysis of the Transamerica policy applies with equal force here and Employers Reinsurance’s duty to defend the claims in the Jewell complaint is equally clear. Indeed, the precise phraseology of this policy may well be read as even more clearly encompassing actions by Biborosch in connection with personnel management in furtherance of his duties as general manager of the agency because this policy’s definition of professional services itself includes services rendered as a general manager. Thus, whereas the Transamerica policy includes general manager as an insured profession, this policy does that and also refers specifically to this profession in the definition of professional services.

Employers raises certain additional arguments, however, in support of its position that it has no duty to defend the Jewell action. These arguments are based on the fact that the Employers policy only covers “negligent” acts and contains the following two exclusions from coverage:

(a) any dishonest, fraudulent, criminal or malicious act, or assault and battery;
(i) claims by a firm, enterprise or joint venture which is operated, owned or otherwise controlled by an Insured or which operates, owns or otherwise controls an Insured.

We are not persuaded that the use of the phrase “negligent act, error or omission” in the Employers’ policy so restricts the coverage provided as to necessarily exclude the claims asserted in the Jewell complaint from potentially falling within that coverage. Nor do we find that either of the above-quoted clauses so clearly applies to those claims as to preclude them from falling within the coverage of the policy.

We begin our analysis of these arguments by reiterating a well-established principle of law. That principle states that where "... there are two separate causes of action and one would constitute a claim within the scope of the policy's coverage, the insurer has a duty to defend until it can confine the claim to a recovery excluded from the scope of the policy.” Seaboard Industries, Inc. v. Monaco, 258 Pa.Super. 170, 392 A.2d 738, 743 (1978). Thus, in order to find a duty to defend, we need not find that every claim asserted in the complaint filed against the insured is within the potential coverage of the policy. Rather we need only determine if any of the claims asserted are potentially covered. If any are, the insurer must defend until the suit is narrowed only to claims that are definitely not within that coverage.

Applying that principle here, we can easily conclude that at least some of the claims asserted in the Jewell complaint would not fall within the cited exclusions and, moreover, that at least some of those claims could be characterized as alleging negligent acts within the coverage of the Employers policy.

The Employers policy exclusion for dishonest, fraudulent, criminal or malicious acts certainly does not clearly exclude all of the claims in the Jewell complaint from potential coverage. As we have stated in footnote 8, supra, clearly the Jewell complaint cannot be read as pleading only causes of action that hinge on malicious or dishonest behavior by Biborosch. For example, the breach of contract count does not at all hinge on proof of maliciousness. Ill will or malice is not an element of a cause of action for breach of contract and Jewell does not plead it as such in the breach of contract count. The fact that Jewell alleges that Biborosch did act maliciously in other counts of the complaint is extraneous to recovery for breach of contract. Jewell may well succeed in proving breach of contract because of a negligent act without ever establishing malice on Biborosch’s part and that recovery may well fall within the coverage of the policy. Nor do Jewell’s allegations of a breach of the duty of good faith and fair dealing necessarily hinge on proof of maliciousness. As the Court of Appeals for the District of Columbia has aptly stated in rejecting a similar claim based on a malicious acts exclusion:

... [an insurer] cannot refuse to defend an otherwise appropriate complaint because of some language in the complaint which may be merely “puffing” and which scrutiny reveals is not essential to the complaint.

Continental Casualty Co. v. Cole, 809 F.2d 891, 897 (D.C.Cir.1987) (quoting Sacks v. St. Paul Fire and Marine Ins. Co., 303 F.Supp. 1339, 1341 (D.D.C.1969)).

Equally, the Employers policy’s coverage of only “negligent acts, errors or omissions” does not clearly exclude all of the claims in the Jewell complaint. As we have previously indicated, we determine an insurer’s duty to defend from the face of the complaint in the underlying action and we must construe the complaint against the insurer, resolving all doubts in favor of coverage. Here, the Jewell complaint itself labels the wrongful acts asserted as being, inter alia, “grossly negligent.” In addition, the last count of the complaint pleads a general breach of duty by Biborosch in his dealings with Jewell. At this early stage in the underlying action, and based only upon the face of the complaint, we cannot say that there is no possibility that Jewell might recover damages based upon what were essentially negligent acts, errors or omissions by Biborosch in connection with his treatment of Jewell.

In this regard, we find the Supreme Court of Pennsylvania’s analysis in the case of Cadwallader v. New Amsterdam Cos. Co., 396 Pa. 582, 152 A.2d 484 (1959), to be particularly instructive. In Cadwallader, the insured, Cadwallader, was a lawyer. He was sued by Mencher, another lawyer, who alleged that Cadwallader had breached an agreement with Mencher pursuant to which Cadwallader was to hold in escrow ¿and then remit to Mencher a portion of certain condemnation proceeds on property owned by a joint client of the two. This portion of the condemnation proceeds was owed by the client to Mencher for previously rendered legal services. Mencher’s complaint alleged both a breach of undertaking and a conspiracy to defraud.

Cadwallader sought a defense from his professional liability insurer, who refused. The insurance policy insured Cadwallader against claims made against him arising out of the performance of professional services and caused by any “negligent act, error or omission” by Cadwallader. It also excluded claims arising from malicious or fraudulent acts. After the underlying action was settled, Cadwallader sued his insurer for his costs of defense and for indemnity. The trial court found that Cadwallader had negligently failed to transmit the funds to Mencher, due to an error by Cadwallader’s associate.

The Cadwallader court held that the insurer did have the duty to defend. It analyzed Mencher’s complaint as pleading two causes of action — breach of an undertaking and unlawful conspiracy and fraud. Although the court found that the second was excluded from coverage, it further found that from the face of the complaint the first claim may well have fallen within the coverage of the policy and, therefore, that the insurer had erred in refusing to defend it. As to that claim, and the duty to defend, the court stated:

... [this cause of action] ... would be one which may or may not have come within the coverage of Cadwallader’s insurance policy with the defendant. It would be within the coverage of the policy if the violation of this agreement was due to a negligent act, error or omission. If, however, the violation was due to a dishonest, fraudulent, criminal or malicious act or omission it would not be covered.
It is clear that where a claim potentially may become one which is within the scope of the policy, the insurance company’s refusal to defend at the outset of the controversy is a decision it makes at its own peril.
... Mencher’s pleading fix[ed] the insured’s right in this case____ In this case, the complaint filed by Mencher contained two separate causes of action, one for simple breach of the undertaking and the other for conspiracy. If the one for the breach of the undertaking is due to a negligent act or omission this would constitute a claim within the scope of the policy and ... "... It was the duty of the defendant to undertake the defense until it could confine the claim to a recovery that the policy did not cover.”

Id., 396 Pa. at 589-91, 152 A.2d at 488-89 (quoting Lee v. Aetna Casualty & Surety Co., 178 F.2d 750 (2d Cir.1949).

Similarly, we conclude that the allegations of the Jewell complaint are broad enough to encompass possible negligence by Biborosch. Thus, we do not find that the Employers policy’s “negligent act, error or omission” language can be construed as absolutely barring any possible recovery by Jewell from coverage.

Lastly, we are hard pressed to find even arguable merit in Employers’ contention that exclusion (i) applies to exclude the claims asserted in the Jewell complaint. This exclusion operates to exclude from coverage claims by a firm, enterprise or joint venture which is owned, operated or controlled by an insured or which operates, owns or controls an insured. The insured under this policy is Biborosch in his individual capacity. The claims being made by Jewell are made by him as an individual. There is absolutely no evidence in the record to support the contention that Jewell’s claims are made by Jewell on behalf of any “firm, enterprise or joint venture” that was owned, operated or controlled by Biborosch. Nor is there anything to suggest that Jewell’s claims are made on behalf of a firm, enterprise or joint venture that owned, operated or controlled Biborosch. We find no support for finding this exclusion applicable to any of Jewell’s claims.

In conclusion, we find that the claims noted in the Jewell action may potentially fall within the coverage of each of the three policies involved. Thus, all three insurers have the duty to defend. The order of the trial court is affirmed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

This appeal was taken from the Order of the trial court directing appellant liability insurers, Transamerica Insurance Company, Industrial Indemnity Company and Employers Reinsurance Corporation, to defend an action on behalf of Richard Biborosch, t/a The R.F. Biborosch Agency, against a discharged employee who was a soliciting agent.

I believe the trial court and the majority on the panel have completely misconstrued the terms of the contracts subject to this suit and have found liability where none exists.

The essence of the various contracts analyzed and discussed in this case was to protect the agency from losses incurred because of defects, negligence and failures in fulfilling its professional responsibility to clients and policy holders enrolled by the agency. They carry most if not all the elements of professional malpractice insurance. Under no reasonable interpretation can any of the policies be construed to require the appellants to defend an action arising out of termination of an employee/agent due to alleged malfeasance or fraud against the agency. Such a termination is pursuant to the business or employment relationship between the agent and Biborosch and not the professional dealings of the agency as represented by the managers or agent to the public.

Contracts are intended to be read in such a fashion as to avoid ambiguity. Here, reviewing each of the contracts and sections covering liability of the insurers, it is beyond question that the terms “professional” and “professional services” apply to the activities of employees of the agency as they relate to the service provided to the clients. As in any undertaking, those who hold themselves out to the public as proficient and competent to perform a service can be held liable for failure to provide the service pursuant to an acceptable standard.

This is particularly true in an endeavor which is licensed by the Commonwealth and which requires a degree of competence and ability, with knowledge and skills that bring it within the framework of a profession. Professional standards are clearly and specifically ascertainable whether it be in law, medicine, insurance or real estate brokerage, education or social services to mention a few. The provisions of these policies, which are the focus of this case, are geared to protect the agency from claims of insureds for some dereliction of duty to hire competent managers and agents and to train, supervise and maintain professional standards and conduct of the agents and managers of the insurance agency. This coverage is essential because the agency becomes liable to third parties, their insureds, when the third party suffers a loss because of the professional failure of the agents or managers of the agency.

Even the strained construction suggested by the majority cannot bring the termination of an employee, allegedly breaking his employment contract with the agency, and an action for wrongful discharge, within the contractual undertaking by appellant insurers. This is not a breach of duty by an agent to a client, intended to be defended against by the policy, but a simple employment contract, the breach for which, if it occurred, is not covered by the policies in question.

The involved and circuitous discussion of professional accountability in the context of this case is unconnected to the language in the policy. Appellants cite abundant law in their briefs interpreting professionalism and its application to the contracts in question, all of which support the conclusion that they are not required to defend Biborosch in the action by its terminated employee against it. I would reverse the trial court and dismiss the case.

      . Transamerica relies on decisions from the federal courts and other jurisdictions because Pennsylvania courts have not directly addressed the issue presented here. In fact, Pennsylvania case law regarding the meaning of "professional services” is exceedingly sparse. See, e.g., Danyo v. Argonaut Ins. Cos., 318 Pa.Super. 28, 464 A.2d 501 (1983); Knorr v. Commercial Casualty Ins. Co., 171 Pa.Super. 488, 90 A.2d 387 (1952).

      . None of the cases cited by Transamerica in this regard are binding on us in that none of them were decided by Pennsylvania courts. The cited cases are: Harad, supra; Niagara Fire Ins. Co. v. Pepicelli, Pepicelli, Watts and Youngs, P.C., 821 F.2d 216 (3d Cir.1987); Pacific Indemnity Co. v. Linn, 766 F.2d 754 (3d Cir.1985); Blumberg v. Guarantee Ins. Co., 192 Cal.App.3d 1286, 238 Cal.Rptr. 36 (1987); Transamerica Ins. Co. v. Sayble, 193 Cal.App.3d 1562, 239 Cal.Rptr. 201 (1987); International Surplus Lines Ins. Co. v. Seagrave House, Inc., 572 So.2d 933 (Fla.App.1990); Schiff Associates Inc. v. Flack, 51 N.Y.2d 692, 435 N.Y.S.2d 972, 417 N.E.2d 84 (1980).

      . Transamerica also argues, in a two paragraph footnote bereft of supporting citations, that the exclusion in its policy for "any act, error, omission or personal injury of the insured committed with dishonest, fraudulent, criminal or malicious purpose or intent____” precludes a finding that Transamerica owes a duty to defend against the Jewell action. This argument is based on the fact that the Jewell complaint alleges that the discharge of Jewell was malicious and motivated by ill will.
      We reject this argument as summarily as Transamerica has made it. Clearly the Jewell complaint alleges not only malicious acts by Biborosch, but also breach of contract and other acts that are simply labelled as being "wrongful” or in violation of "public policy” or in breach of a duty of “good faith and fair dealing.” This is not a complaint that could possibly be construed to plead exclusively dishonest, fraudulent, criminal or malicious acts such as to bring the entire Jewell action so clearly within the above-quoted exclusion that a duty to defend would not arise.

      . Industrial Indemnity joins Transamerica in its argument concerning the applicability of the criminal or malicious acts exclusion discussed in footnote 3, supra, which also appears in the Industrial Indemnity policy. Our disposition of that argument as to Transamerica applies with equal force to Industrial Indemnity.


author: KELLY, Judge:

text:
    603 A.2d 1060
    COMMONWEALTH of Pennsylvania v. Derrick W. ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 25, 1991.
    Filed Feb. 27, 1992.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether a defendant retains a right of allocution at a reconsideration of sentence hearing. We find that where, as here, the original sentence is vacated prior to the reconsideration hearing, criminal defendants do have such a right, and that because appellant was not provided with an opportunity to personally address the court, his sentence is invalid. Accordingly, we vacate his sentence and remand for resentencing.

The facts and procedural history may be summarized as follows. On August 18, 1990, appellant stabbed Gregory Bivings in the chest and robbed him of four dollars. On March 7,1991, appellant was tried without a jury and found guilty of robbery, aggravated assault, and possession of an instrument of crime. On May 2, 1991, the trial court sentenced appellant to an aggregate term of nine to eighteen years imprisonment.

On May 8, 1991, the defense filed a timely motion to modify sentence and the trial court vacated the original sentence to allow for reconsideration. On May 31,1991, the trial court held a reconsideration of sentence hearing. After hearing arguments from both sides, the trial court asked, “Anything further from either side?” Appellant’s counsel replied, “No sir.” At the close of the hearing, the trial court reimposed the original sentence. Appellant filed a timely appeal to this Court on June 10, 1991.

On appeal appellant contends that he had a right of allocution at the reconsideration of sentence hearing pursuant to Pennsylvania Rule of Criminal Procedure 1405, Pennsylvania’s codification of the right, which states:

The judge shall afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing.

Pa.R.Crim.P. 1405(a). Appellant asserts that because his original sentence had been vacated, he stood before the court as an unsentenced defendant and should therefore have been afforded his right to personally address the court before sentencing. We agree.

The right of allocution, whereby the defendant is permitted to address the court in an attempt to mitigate punishment, is not a new development. “As early as 1689, the common law acknowledged that a court’s failure to invite the defendant to speak before sentencing required reversal.” United States v. Barnes, 948 F.2d 325, 328 (7th Cir.1991) (citing Anonymous, 3 Mod. 265, 266, 87 Eng.Rep. 175 (K.B. 1689)). Pennsylvania Rule of Criminal Procedure 1405(a) has codified the right of allocution for all those who stand convicted of crimes. Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 (1989). Failure to grant a defendant his right to address the court prior to sentencing requires reversal. Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 (1989); Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980); Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985).

This Court has found the defendant’s right of allocution so important that it requires it to be afforded even if the sentence to be imposed is mandatory. Commonwealth v. Melvin, 392 Pa.Super. 224, 572 A.2d 773 (1990). In Melvin, this Court enunciated the purpose of the right of allocution:

[The right of allocution] is an opportunity for the defendant to face the court ‘man to man,’ without intermediaries or filtered exchanges. Such an opportunity is inherent and desirable in our form of individualized justice, and unless restricted by the Supreme Court at a future date,
we feel compelled to retain it____

Melvin, 392 Pa.Super. at 231, 572 A.2d at 776.

The question presented here, whether and under what circumstances the right to allocution extends to a reconsideration of sentence hearing, has not been considered before in Pennsylvania. It has, however, been considered in the federal courts. We look there for guidance.

In United States v. Barnes, 948 F.2d 325 (7th Cir.1991), the defendant was convicted of violating his probation and sentenced to a five year prison term. The trial court granted the defendant the right of allocution. The seventh circuit vacated the sentence of the trial court and remanded the case because of concerns unrelated to the defendant’s right of allocution. On remand, the trial court complied with the appellate court’s direction, but again sentenced the defendant to a five year prison term. At the second hearing, the defendant was not afforded his right to address the court.

On appeal, presented with the question of the propriety of the denial of the second allocution, the seventh circuit reasoned that,

the effect of the order to vacate was to nullify Barnes’ sentence. Accordingly, when Barnes appeared before the trial judge on remand, he did so with a clean slate as far as sentencing was concerned; his previous sentence was not to be rubber stamped, but instead a new sentencing determination was to be made. Along with a new sentencing determination came the right to address the court.

Barnes, 948 F.2d at 330. The court of appeals therefore concluded that “the purpose underlying the right of allocution — to allow defendants an opportunity to mitigate their punishment — is best served by permitting defendants to address the court... in cases in which resentencing follows a vacated sentence.” Barnes, 948 F.2d at 332. We find such reasoning persuasive herein.

The purpose underlying the right of allocution in Pennsylvania, like the purpose of the right of allocution considered in Barnes, is to give defendants an opportunity to mitigate their punishment. Commonwealth v. Thomas, 520 Pa. at 209, 553 A.2d at 918. In the case sub judice, as in Barnes, the appellant’s sentence was vacated. When a judgment has been vacated it is entirely destroyed and “the rights of the parties are left as though no judgment has been entered.” Rufo v. Bastian-Blessing Co., 420 Pa. 416, 418, 218 A.2d 333, 334 (1966); Higbee Estate, 372 Pa. 233, 237, 93 A.2d 467, 469 (1953); Malicia v. Proietta Catering & Cocktail Lounge, 270 Pa.Super. 342, 344, 411 A.2d 751, 752 (1980). Therefore, appellant was in effect being sentenced anew. Such a de novo sentencing resuscitates the duties of the sentencing court and the rights of the defendant, including the defendant’s right to personally address the court.

The Commonwealth argues that because the principal purpose of the rule allowing a defendant to file a motion to modify sentence is not to provide the defendant with a second opportunity to mitigate his sentence, but to provide the trial court with the first opportunity to modify its sentence and correct any errors that may have occurred at sentencing, it is purposeless to provide a defendant a right of allocution at the resentencing hearing. While this may be true in some cases, it is not where, as here, appellant’s sentence has been vacated. In such a case, the purpose of the resentencing becomes the same as the purpose for the original sentencing. No distinction can be found.

The Commonwealth alternatively contends that, assuming arguendo, the right of allocution is retained at reconsideration of sentence hearings after the original sentence has been vacated, appellant is due no relief here because he was in fact afforded this right. The Commonwealth maintains that the trial court’s question, “Anything further from either side?” and appellant's counsel’s reply, “No sir,” constituted full compliance with Pa.R.Crim.P. 1405(a). In support of its position, the Commonwealth cites Commonwealth v. Clark, 354 Pa.Super. 366, 511 A.2d 1382 (1986), app. denied, 513 Pa. 633, 520 A.2d 1384 (1987). We find the Commonwealth’s reliance on this case misplaced.

In Commonwealth v. Clark, supra, the trial court specifically asked defendant Clark, “Is there anything else to be said?”, to which Clark replied, “No sir.” Clark, 354 Pa.Super. at 368, 511 A.2d at 1382. This Court found this exchange satisfied the defendant’s right of allocution under Pa.R.Crim.P. 1405(a). Id. Clark, however superficially similar, is materially distinguishable from the case sub judice. Here, unlike in Clark, the trial judge did not specifically address appellant. Rather, the trial judge addressed appellant’s counsel and it was appellant’s counsel that replied, “No sir.” The defendant in Clark was informed that he had a right to address the court as evidenced by the fact he personally responded “No sir” to the trial court's question. This distinction is materially significant herein.

In Commonwealth v. Thomas, supra, our Supreme Court stated:

Since a trial judge will not know in most cases whether a defendant is aware of his right to address the court prior to sentencing, but Rule 1405 requires the court to afford the defendant an opportunity to speak, we understand Rule 1405 to require the trial court to inform the defendant of his right to speak prior to sentencing.

Thomas, 520 Pa. at 208, 553 A.2d at 919 (emphasis added). Interpreting Thomas, this Court in Commonwealth v. Melvin, supra, was asked to decide whether the trial court’s question, “Is there anything to be said before the court pronounces sentence?”, served to inform the appellant of his right to speak. Despite the fact that counsel availed himself of the opportunity to argue on behalf of the defendant, the Melvin Court concluded:

No one, however, informed the appellant he could address the court or asked him if he had anything he wanted to say. Accordingly, we remand for resentencing. ...

Melvin, 392 Pa.Super. at 230, 572 A.2d at 776 (emphasis added).

We discern from Clark, Melvin and Thomas that the right of allocution is so personal and essential in nature that unless the Court directly and specifically asks the defendant whether he or she chooses to speak, no right of allocution has been effectively granted. Here, as in Melvin, the opportunity to speak was not given directly and specifically to appellant, but rather to his counsel. We are left with no other conclusion, in light of the relevant precedent, therefore, than to consider that appellant was deprived of his absolute right to allocution. Accordingly, we must reverse and remand this case to the trial court for resentencing at which time the court shall inform the appellant of his right to speak prior to imposition of sentence.

Judgment of sentence vacated. Case remanded to the trial court for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Appellant raises additional issues relating to sentencing. Because this opinion vacates appellant's sentence based on denial of appellant’s right to allocution, we need not address appellant’s other arguments which are rendered moot by the vacating of sentence.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 907.