author: JOHNSON, Judge:

text:
    587 A.2d 798
    COMMONWEALTH of Pennsylvania v. Martin McCLAIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1991.
    Filed March 15, 1991.

      Robert A. Crisanti, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Allegheny, for Com., appellee.
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from the judgment of sentence entered against appellant Martin McClain on November 6, 1989. We affirm.

On March 14, 1985, appellant Martin McClain was residing with Debra White and her two minor children. At 7:00 AM, White left for work, but was stopped outside her apartment by her ex-boyfriend, Eric Harris. Harris forced Debra White back into her apartment building, threatened to rape her and demanded that she give him the keys to her apartment. When White refused to provide Harris with the keys to her apartment, he repeatedly pounded her head against the wall. McClain observed the entire episode from the “peephole” of his apartment. He then armed himself with a shotgun and opened the door of his apartment. Holding the shotgun at his side, McClain ordered Harris to leave the building. Harris responded that McClain would have to shoot him first, and proceeded to take two steps towards McClain. McClain then shot Harris in the chest. Harris later died from the wound.

McClain was arrested and charged with one count of Criminal Homicide, 18 Pa.C.S.A. § 2501(a). At trial, McClain did not contest that he fired the fatal shot. McClain testified that the shooting was in self-defense. The Commonwealth’s evidence indicated that no weapon was found on the body of the deceased, nor was a weapon located at the scene of the incident. Following trial, the jury found McClain guilty of Voluntary Manslaughter, 18 Pa.C.S. § 2503.

A Motion for New Trial and/or In Arrest of Judgment was argued and denied. McClain was sentenced to a term of imprisonment of not less than five (5) or more than ten (10) years. McClain raises the following issues on appeal:

I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION OF VOLUNTARY MANSLAUGHTER AND THE COMMONWEALTH FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT McCLAIN WAS NOT ACTING IN SELF DEFENSE.
II. COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO PROVIDE OR REQUEST A JURY INSTRUCTION WHICH WOULD HAVE ENABLED THE JURY TO CONSIDER THE VICTIM’S PRIOR ACTS OF VIOLENCE AND “VIOLENT PROPENSITIES.”
A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN INSTRUCTION CONCERNING THE RELEVANCE OF THE DECEASED’S PRIOR ACTS OF VIOLENCE AND HIS “QUARRELSOME AND VIOLENT CHARACTER” IN DETERMINING THE REASONABLENESS OF McCLAIN’S FEAR OF DECEDENT.
B. COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION CONCERNING THE RELEVANCE OF THE DECEDENT’S PRIOR ACTS OF VIOLENCE AND “VIOLENT PROPENSITIES” TO SUPPORT THE PROPOSITION THAT HARRIS WAS THE AGGRESSOR.
III. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ERRONEOUS AND UNCONSTITUTIONAL CHARGE ON SELF-DEFENSE, WHICH EFFECTIVELY SHIFTED THE BURDEN OF PROOF TO McCLAIN BY CHARGING THAT DEFENDANT MUST MEET CERTAIN “REQUIREMENTS BEFORE HIS SELF-DEFENSE IS JUSTIFIED.”
IV. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE COURT’S “DUTY TO RETREAT” INSTRUCTIONS BECAUSE McCLAIN HAD NO DUTY TO RETREAT IN HIS OWN HOME AND NO EVIDENCE EXISTED THAT HE WAS THE INITIAL AGGRESSOR.

The well established standard for reviewing a claim of sufficiency was recently stated by our court:

[Wjhether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth must sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence____ Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered____

Commonwealth v. Hunter, 381 Pa.Super. 606, 610, 554 A.2d 550, 551 (1989), citing Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986).

At issue one, McClain argues that the' evidence was insufficient to support the conviction of Voluntary Manslaughter. We disagree. Voluntary Manslaughter is defined at 18 Pa.C.S.A. § 2503, which provides in part:

(a) General rule.—A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidently causes the death of the individual killed.
(b) Unreasonable belief killing justifiable.—A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

In order to prove Voluntary Manslaughter beyond a reasonable doubt, the Commonwealth must prove every element of either § 2503(a) or § 2503(b) beyond a reasonable doubt. A conviction under § 2503(a) requires “a sudden and intense passion resulting from serious provocation.” See Commonwealth v. McFadden, 384 Pa.Super. 444, 559 A.2d 58 (1989). A conviction under § 2503(b) requires that 1) the accused intentionally or knowingly killed an individual; 2) with the unreasonable belief that the killing was lawfully justified. Commonwealth v. Nau, 473 Pa. 1, 373 A.2d 449 (1977).

Further, where an accused raises the defense of self-defense under 18 Pa.C.S.A. § 505, the burden is on the Commonwealth to prove beyond a reasonable doubt that the homicide was not a justifiable act of self-defense. Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506 (1980). The Commonwealth sustains its burden of disproving self defense if it establishes at least one of the following: 1) the accused did not reasonably believe that he was in danger of death or serious bodily injury; or 2) the accused provoked the use of force; or 3) the accused had a duty to retreat and the retreat was possible with complete safety. Common wealth v. Stonehouse, 521 Pa. 41, 59, 555 A.2d 772, 781 (1989). The right to use deadly force as a justifiable act of self-defense is set forth in 18 Pa.C.S.A. § 505(b)(2) as follows:

(b) Limitations on justifying necessity for use of force.
(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury ...; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself ...; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating....

Further, “believes” or “belief” is defined in 18 Pa.C.S.A. § 501 as follows:

“Believes” or “Belief.” Means “reasonably believes” or “reasonable belief.”

We now turn to the facts of the instant case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, supports the jury’s conviction of Voluntary Manslaughter under either § 2503(a) or § 2503(b). McClain’s neighbor, a prosecution witness, testified that she saw McClain open the door of his apartment, lift the gun, and say “You’re dead, sucker,” before he fired at Harris. Further, an expert from the Allegheny County Coroner’s Office testified that the cause of Harris’ death was a shotgun wound to the chest. This expert also testified that the shotgun blast perforated Harris’ ribs, as well as his lung and his heart. Not only did McClain testify that he aimed the weapon at Harris, he testified that Harris “was very close” when he discharged the weapon. Finally, McClain, himself, testified that he was aware of the damage a shotgun shell would cause. We conclude that the jury had sufficient evidence from which to conclude that McClain intentionally killed Harris, the first element of § 2503(b).

In addition, Debra White, an eyewitness, testified on direct examination that she did not see Harris produce a weapon on March 14, 1985. No weapons were found at the scene of the incident. Nor were any weapons found on the body of Harris. McClain testified that he believed that “[Harris] possibly could have had a gun,” and that he was “in fear for [his] own life as well as Debra’s.” (Emphasis ours).' We find this evidence sufficient to support a finding that McClain’s belief was unreásonable; the second element of § 2503(b). Therefore, we conclude, that there was sufficient evidence to support a finding of Voluntary Manslaughter under 18 Pa.C.S.A. § 2503(b).

We also find, in light of our thorough review of the record, that the evidence was sufficient to support the jury’s finding that McClain did not kill Harris in self-defense. As we stated previously, in order to meet its burden, the Commonwealth must establish one of the elements set forth in Commonwealth v. Stonehouse, supra. We are satisfied that there was sufficient evidence to find that McClain did not reasonably believe that he was in danger of death or serious bodily injury when he shot Harris. Therefore, we find that' McClain’s first issue is without merit.

Next, McClain alleges three separate instances of trial counsel’s ineffectiveness. It is settled that, in order to prevail on a claim of ineffectiveness, the appellant must show that the underlying claim is of arguable merit. Commonwealth v. Tressler, 526 Pa. 139, 584 A.2d 930 (1990). If a claim is devoid of merit, our inquiry ceases, for counsel will not be deemed ineffective for failure to pursue a meritless claim. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). If the claim possesses merit, the appellant must show that the course of action chosen by counsel had no reasonable basis designed to effectuate appellant’s interests. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). Finally, appellant must demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

First, McClain argues that trial counsel was ineffective for failing to request a jury instruction concerning the relevance of Harris’ prior violent conduct. Relying on the Supreme Court’s holding in Commonwealth v. Beck, 485 Pa. 475, 402 A.2d 1371 (1979), McClain argues that part of his defense of self-defense requires the jury to consider the reasonableness of his fear of Harris, in light of his knowledge of Harris’ prior violent conduct. Although evidence of Harris’ violent history was introduced through the testimony of Debra Harris, McClain argues, the trial court failed to instruct the jury as to the relevance of this evidence. Trial counsel never requested such an instruction, nor objected to its omission from the court’s charge. Therefore, McClain argues, trial counsel was ineffective. We disagree.

McClain’s reliance on Beck is misplaced. In Beck, our Supreme Court held that if an accused has knowledge of the victim’s prior violent conduct, evidence of that violent conduct is admissible, since it tends to establish the victim’s character for violence, and is relevant as to whether the accused’s belief that he was in danger of serious injury or death was reasonable. As McClain himself admits, he must “demonstrate a particular knowledge of the deceased’s character or reputation, or ... specific act[s] of violence in order to establish a proper foundation for his claim that such knowledge put him in fear____” Appellant’s Brief at page 15, (citing to Commonwealth v. Stewart, 483 Pa. 176, 394 A.2d 968 (1978)) (Emphasis ours). McClain claims he had knowledge of Harris’ prior violent conduct because he was aware of Harris’ abusiveness towards Debra White, however, the record belies this claim.

According to Debra White’s testimony, she did not tell McClain of Harris’ prior violent conduct towards her until after the shooting. McClain testified himself that he did not know about Harris’ violence towards White until after the shooting. Further, we have found no evidence in this record which would establish that McClain had any other knowledge of Harris’ prior violent conduct. Any evidence of the alleged violent conduct would not be relevant to McClain’s claim that such knowledge put him in fear of Harris on March 14, 1985. Our Supreme Court has recently held that a jury need not be instructed regarding matters that have no relevance to the evidence introduced at trial. Commonwealth v. Holland, 518 Pa. 405, 412, 543 A.2d 1068, 1071 (1988). The Supreme Court, stated, “[t]here is no duty on a trial judge to charge a jury upon law which has no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at trial.” Id. (Citations omitted). The court further stated, “[a] charge on a point or issue which is unsupported by any evidence is likely to confuse the jury and obstruct Justice.” Id. (Citations omitted). The court’s omission of the relevance of such evidence in its charge was proper, as a charge relating to McClain’s alleged knowledge of Harris’ prior violent conduct would have been without proper foundation in the record. Therefore, since McClain’s underlying claim is without basis, counsel’s failure to pursue it will not be deemed ineffectiveness. See Commonwealth v. Nelson, supra.

With respect to his first claim of ineffectiveness, McClain also contends that he was entitled to an instruction concerning Harris’ “violent propensities” in order to support McClain’s proposition that Harris, was, in fact, the “aggressor,” relying on Commonwealth v. Beck, supra and Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971). Again, McClain’s reliance on Beck is misplaced, as is his reliance on Amos.

In Amos, our Supreme Court held that prior convictions involving aggression by a victim of a homicide may be introduced into evidence by an accused where self defense is asserted either “1) to corroborate [the accused’s] alleged knowledge of the victim’s quarrelsome and violent character to show that the [accused] reasonably believed that his life was in danger; or 2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor.” Amos, 445 Pa. at 303, 284 A.2d at 751. Further, in Beck, our Supreme Court held that the defendant need not have knowledge of a victim’s criminal conviction in order to introduce the prior conviction to show the aggressive propensities of the victim. Beck, 485 Pa. at 478, 402 A.2d at 1373.

McClain claims that evidence of Harris’ “violent propensities,” as testified to by Debra Harris, was relevant to his claim that Harris was the “aggressor.” However, Beck and Amos require that prior convictions of the victim be admitted to support the accused’s claim that the victim was the “aggressor.” The record reveals that McClain did not introduce evidence of Harris’ criminal convictions at trial. McClain was, therefore, not entitled to an instruction concerning the relevance of Harris’ “violent propensities” to support the proposition that Harris was the “aggressor.” See Commonwealth v. Holland, supra. McClain’s underlying claim is, therefore, without arguable merit. We will not find trial counsel ineffective for failing to pursue this meritless claim. Commonwealth v. Nelson, supra.

Second, McClain argues that trial counsel was ineffective for failing to object to the trial court’s erroneous charge on self defense, which, he alleges, effectively shifted the burden of proof to McClain. We disagree. McClain’s alleged error is based upon an incorrect statement of the law. In his Brief, McClain states that in order for the Commonwealth to sustain its burden in overcoming a self-defense assertion, “the Commonwealth must prove each and every one of the following elements beyond a reasonable doubt:

1. that the Defendant was unreasonable in his fear of immediate bodily harm;
2. that the Defendant provoked the use of such force;
3. and that the Defendant had a duty to retreat and could have retreated with complete safety.”

Appellant’s Brief at page 30, (citing to Commonwealth v. Stonehouse, supra, 521 Pa. at 59, 555 A.2d at 781 (1989)).

McClain has misquoted Stonehouse. As we have stated previously, the Supreme Court in Commonwealth v. Stonehouse, held that in order for the Commonwealth to sustain its burden of disproving self defense, it must establish at least one of these elements—not each and every element.

The law is also clear, that in order for a killing to be justified under § 505(b), the opposite of the above-enumerated elements must be true; the defendant 1) must have reasonably believed that he was in imminent danger of death or serious bodily injury; 2) not have provoked the use of force; and 3) not have violated a duty to retreat. Each of the elements under § 505 is a necessary condition to a successful claim of self-defense. The Commonwealth must defeat an accused’s claim of self-defense by disproving that any one of the § 505 elements existed.

It is well established that in charging the jury, the trial'court is free to use its own form of expression; the only issue is whether the area is adequately, accurately and clearly presented for the jury. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975). Also, in evaluating a challenge to the trial court’s instructions to the jury, the charge must be read and considered in its entirety and it is the general effect of the charge that controls. Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974).

This record indicates the trial court, in its charge, impressed upon the jury that McClain had no burden of proof whatsoever, but rather, the Commonwealth was responsible for disproving at least one of the elements essential to the defense of self-defense. In its instruction to the jury regarding self defense, the trial court stated:

Now, because the Commonwealth has the burden of disproving the Defendant’s claim of self-defense, you cannot find the Defendant guilty of any crime unless you are satisfied beyond a reasonable doubt that the Defendant did not act in justifiable self-defense. In other words, you cannot find the Defendant guilty unless you are satisfied beyond a reasonable doubt that at least one of the requirements essential to that defense is lacking.

N.T., August 11, 1989, at 442-443. (Emphasis ours).

This statement by the trial court is a correct statement of the law and is consistent with the Supreme Court’s holding in Commonwealth v. Stonehouse, supra. Trial counsel cannot be deemed ineffective for failing to pursue this meritless claim. Commonwealth v. Nelson, supra.

In his final allegation of trial counsel’s ineffectiveness, McClain asserts that the trial court erred in instructing the jury on the “duty to retreat” element of self-defense. 18 Pa.C.S.A. § 505(b)(2) provides in part:

The use of deadly force is not justifiable under this section unless ... the actor knows that he can avoid the necessity of using such force with complete safety by retreating ... [however], the actor is not obliged to retreat from his dwelling ... unless he was the initial aggressor____

(Emphasis ours).

McClain argues that there was no evidence to support the finding that he was the “initial aggressor,” therefore, the trial court’s instruction was unwarranted and erroneous. We disagree. At trial, the Commonwealth introduced testimony of an eyewitness, who testified that McClain opened the door to his apartment, raised a shotgun and aimed it at Harris, said “[y]ou’re dead, sucker,” then shot Harris, as Harris approached him. This evidence would be sufficient to support a finding that McClain was the initial aggressor. Therefore, the trial court’s charge to the jury was proper, for the primary duty of a trial judge in charging a jury is to clearly and adequately explain the principles of law that are supported by the evidence introduced at trial. Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982). Trial counsel will not be deemed ineffective for failing to pursue this meritless claim. Commonwealth v. Nelson, supra. We, therefore, reject McClain’s final allegation of ineffectiveness.

For all the foregoing reasons, we affirm McClain’s judgment of sentence.

Judgment of sentence affirmed.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    587 A.2d 805
    COMMONWEALTH of Pennsylvania, Appellee, v. Daniel R. SOPOTA, Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1990.
    Decided March 8, 1991.

      Robert T. Yurchak, Summit Hill, for appellant.

      Gary F. Dobias, Asst. Dist. Atty., Jim Thorpe, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, TAMILIA, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was found guilty of voluntary manslaughter at the conclusion of a jury trial. Appellant timely filed post-verdict motions and subsequently filed, without leave of court, supplemental post-verdict motions. The trial court found no merit in the issues raised in either of Appellant’s motions and, accordingly, denied relief. The court sentenced Appellant to a term of four to eight years imprisonment. This timely, direct appeal followed. We vacate the judgment of sentence and remand for a new trial.

Appellant’s conviction was the result of the fatal stabbing of Thomas DeWolfe, (the “victim”), during a domestic dispute which occurred in the victim’s trailer home on September 8, 1987. The victim shared the trailer with Karen Kluk, a cousin of Appellant. On the date in question, the victim and Appellant had spent the entire day drinking and returned to the frailer in the late afternoon. Upon arriving at the trailer, the victim saw that several neighbors and friends of Ms. Kluk were present and ordered them to leave. Everyone then left except for Appellant, Ms. Kluk and her infant twin sons. The victim proceeded to argue with Ms. Kluk, demanding that she pack her bags and move out of the trailer. The victim became aggressive toward Ms. Kluk and began to strangle her. A struggle then ensued between the victim and Appellant. Grabbing a kitchen knife, Appellant stabbed the victim in the back thereby causing the victim to release his hold on Ms. Kluk. When the victim turned toward him, Appellant stabbed him in the chest. Although the victim later died as a result of this wound, he was able to run from the trailer and down the road where he died a short time thereafter.

The case proceeded to trial in January, 1988. As part of its case in chief, the Commonwealth wished to present the original statement Ms. Kluk made to the police on the day of the stabbing. At a sidebar discussion prior to the presentation of its case, the assistant district attorney informed the trial court that, because Ms. Kluk had recanted her statement on several occasions, he was alleging prosecutorial surprise and asked that she be declared a hostile witness so that he would be able to question her as of cross-examination. After an off-the-record discussion in chambers, the trial court agreed and allowed the Commonwealth to call its next witness. While the Commonwealth had subpoenaed Ms. Kluk, she was not called as a witness in order to discover whether she would repeat her revised statement of what had occurred prior to the stabbing. Instead, the Commonwealth called the prosecuting police officer, John Dillon, to the stand, and the officer read part of Ms. Kluk’s original statement to the jury. Defense counsel objected on the basis of hearsay, since Ms. Kluk was sequestered in the hallway outside the courtroom. Upon the prompting of the trial court, defense counsel then waived his sequestration motion as to Ms. Kluk and she was permitted back into the courtroom. The trial court then indicated on the record that defense counsel's hearsay objection was overruled since Ms. Kluk, the declarant of the statement, was then present in the courtroom and available for cross-examination. Ms. Kluk was later called by the defense during the presentation of its case; only then did she recant her prior statement and explain why it was inconsistent with her direct testimony.

Appellant first asserts that the evidence was insufficient to support the verdict of guilty of voluntary manslaughter and to negate his evidence of self-defense and/or defense of others. We do not agree. In reviewing the sufficiency of the evidence, this Court must view the evidence presented and all reasonable inferences that arise therefrom in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981).

The crime of voluntary manslaughter is defined as follows:

A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidently causes the death of the individual killed.

18 Pa.C.S.A § 2503(a) (Purdon 1983).

The evidence presented at trial clearly established that Appellant became enraged after watching the victim assault his cousin and that he then confronted the victim with a kitchen knife and stabbed him. Appellant’s own testimony that he told his cousin “he was sorry he did it” and that he told the victim “you shouldn’t have done it” confirms the fact that he stabbed the victim in retaliation for the victim’s attack on his cousin. (N.T. at pp. 214, 217). Furthermore, Dr. Isadore Mihalakis, who had performed the autopsy on the victim, testified that he had observed multiple wounds on the body of the victim and that the fatal wound had gone through tissue, muscle, bone and various other internal organs. Dr. Mihalakis further testified that he had observed defensive wounds on the victim and that substantial force would have had to have been utilized in order to inflict the fatal wound. Thus, Appellant’s initial claim is without merit.

Appellant next claims that the trial court erred in permitting the Commonwealth’s use of a prior inconsistent statement of a non-party witness for its substantive value, without that person first taking the stand and recanting the substance of her earlier statement. Prior to addressing the merits of this issue, we must discuss the procedural irregularity surrounding it. This issue was not raised in Appellant’s initial timely filed post-verdict motions. Rather, Appellant first raised the issue in his supplemental post-verdict motions which, as noted above, were filed without leave of court. Although this issue was fully addressed by the trial court, which also commented on the irregular procedure utilized by Appellant, the Commonwealth now contends that Appellant has waived our review of the issue because his supplemental post-verdict motions were filed without leave of court. We disagree and find the issue sufficiently preserved for appellate review.

En banc consideration was granted in the present case so that this Court would have the opportunity to review the question of whether supplemental post-verdict motions, filed without leave of court but nevertheless addressed by the trial court, are sufficiently preserved on appeal such that this Court can properly address them. The discussion shall involve Pa.R.Crim.P. 1123(a). Because this Court has seen fit to discuss this matter en banc, we shall first review the recent developments regarding this rule.

Initially, we note that in the present case we are concerned with supplemental post-verdict motions filed, without leave of court, subsequent to the timely filing of other post-verdict motions and not the situation where all of a defendant’s post-verdict motions are filed in an untimely manner. See e.g., Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983).

In Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987), a panel of this Court was presented with a situation where the defendant first timely filed a post-verdict motion in which he raised a sufficiency of the evidence claim in “boilerplate” fashion. While the defendant later filed a supplemental post-verdict motion, wherein he reasserted the sufficiency claim with the requisite specifícity, the record did not Indicate that the defendant ever sought the permission of the trial court to file the supplemental post-verdict motion nunc pro tunc. The trial court addressed the sufficiency claim. This Court initially found that the timely filed sufficiency issue was waived due to lack of specificity. Thus, the issue became whether the supplemental claim was also waived since it was filed without first seeking leave of court. The panel, after citing at length from another panel decision which construed former Rule 1123, Commonwealth v. Kelly, 365 Pa.Super. 28, 528 A.2d 1346 (1987), alloc. den’d in 517 Pa. 598, 535 A.2d 1057 (1987), announced this Court’s position on the issue:

To summarize and clarify our position in this case and the cases cited herein, we hold that permission must be requested and granted on Ike record before supplemental post-trial motions may be filed. Counsel may not simply reserve the right to file such motions by adding a notation to that effect in the original post-trial motions. In order to preserve the right to file supplemental motions after the transcript Is received, a request must be approved in advance in a timely fashion. If permission is granted, and supplemental motions are filed, an allegation that could have been raised without the need for a transcript is still considered to be waived.

Commonwealth v. Sheaff, 365 Pa.Super. at 619, 530 A.2d at 482-83. (Emphasis in original). Thus, in Sheaff, the panel held that the supplemental motion filed in the case did not preserve the Issue raised therein for review, despite the fact that the court below addressed it on its merits.

A petition for allocatur in Sheaff was granted, 518 Pa. 655, 544 A.2d 1342 (1988), and resulted in a per curiam order from the Supreme Court, remanding the case to this Court and instructing that we consider the issue raised In the supplemental post-verdict motion which was filed without leave of court, but nonetheless, addressed by the trial court. Since the Supreme Court remanded by per curiam order, this Court was left without the benefit of the Supreme Court’s reasoning as to why Rule 1123(a), as construed by this Court, did not require a finding of waiver.

In Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), a panel of this Court did not find an issue waived, even though it was raised in supplemental post-verdict motions without the benefit of leave of court being obtained as required by Pa.R.Crim.P. 1123(a). In reaching such a conclusion, the panel characterized the Supreme Court’s per curiam reversal in Sheaff, supra, stating that:

It may be inferred from this holding that it was improper for this Court to deem an issue waived for an alleged failure to preserve the issue for review, when the trial court elected to address the issue on its merits. In the instant case, despite the trial court’s finding that appellant’s claim had been waived by his failure to comply with Pa.R.Crim.P. 1123, the court entertained appellant’s contention. In accordance with the apparent ruling of our Supreme Court in Commonwealth v. Sheaff supra, we do not find the claim to have been waived for failure to secure formal allowance of supplemental post-verdict motions nunc pro tunc.

Commonwealth v. Hewett, 380 Pa.Super. at 338, 551 A.2d at 1082.

This reasoning must have found favor with our Supreme Court since an appeal in Hewett was denied. Commonwealth v. Hewett, 522 Pa. 583, 559 A.2d 526 (1989). The reasoning underlying the Hewett decision has been consistently followed in subsequent cases. See e.g., Commonwealth v. Pirela, 398 Pa.Super. 76, 580 A.2d 848 (1990); Commonwealth v. McBride, 391 Pa.Super. 113, 570 A.2d 539 (1990); Commonwealth v. Markovitch, 388 Pa.Super. 244, 565 A.2d 468 (1989); Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989), alloc. den’d in 525 Pa. 617, 577 A.2d 889 (1990).

Upon further contemplation of Rule 1123(a), and the stated purpose of the Pennsylvania Rules of Criminal Procedure, we now conclude that the proper course to follow is to consider issues raised in supplemental post-verdict motions, in all cases, where they are addressed on their merits by the trial court. Rule 2 of the Pennsylvania Rules of Criminal Procedure provides as follows:

These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure the simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay and as nearly as may be in consonance with the rules of statutory construction.

Pa.R.Crim.P., Rule 2, 42 Pa.C.S.A. We believe these goals are best achieved by addressing issues raised in supplemental post-verdict motions where the trial court saw fit to overlook the procedural violation and address the merits of the claim. This is especially true in cases where the Commonwealth did not object to the filing of the supplemental post-verdict motions at the trial level. Were we to treat it otherwise, we would deny a criminal defendant the right to fully appeal the alleged errors committed in the trial proceedings in a situation where neither the Commonwealth nor the trial court object to the procedural non-conformity. See Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (twofold purpose of motions for new trial and in arrest of judgment is to afford the trial court in the first instance the opportunity to correct asserted trial errors and to clearly and narrowly frame issues for appellate review). We hold, therefore, that Appellant’s final claim is not waived and we will now consider its merits.

As stated above, Appellant claims that the trial court erred in permitting the Commonwealth to use a prior inconsistent statement of a non-party witness, for its substantive value, without that person first taking the stand and recanting her earlier statement. The Commonwealth claims that the Pennsylvania Supreme Court’s decision in Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986) permitted the introduction of the statement in this manner. While there is no question that Brady allows the introduction of a prior inconsistent statement for its substantive value, as well as for its value as a tool to impeach a witness, the Commonwealth misreads Brady to allow the introduction of a statement before the witness testifies and the inconsistency arises. In Brady, the only eyewitness to the crime gave a tape-recorded statement that she later recanted in a sworn affidavit. At the time of trial, the Commonwealth called the witness to the stand, at which time she again recanted her statement, prompting the Commonwealth to use the tape-recorded statement over the objections of defense counsel. In allowing the statement to be used for its substantive value, Justice Larsen, writing for the majority, stated:

The simple fact is that “the usual dangers of hearsay are largely nonexistent where the witness testifies at trial.” [Citation omitted]. By hypothesis in these situations, the out-of-court declarant is now a witness in-court where he or she is placed under oath, subject to cross-examination and under observation by the finder of fact. [Citation omitted]. Indeed, the cross-examination to which a recanting witness is subjected will likely be meaningful and vigorous since the witness is already “on the spot” in having to explain the discrepancies between earlier statements and direct testimony, or deny that earlier statements were made at all.

Id. 510 Pa. at 128-29, 507 A.2d at 69. (Emphasis in the original).

This decision, therefore, establishes a two-prong test for the admission of the out-of-court statement: The declarant must be a witness in a judicial proceeding, and the declarant is available for cross-examination. Neither of these conditions were met by the manner in which the Commonwealth introduced the prior inconsistent statement in the present case. While the declarant, Ms. Kluk, had been subpoenaed by the Commonwealth, she had not been called to the stand and had not recanted under oath any part of her prior statement; she was not, therefore, observed by the jury, and was not subjected to cross-examination by defense counsel. Thus, the dictates of Brady were violated by the trial court’s allowance of Ms. Kluk’s statement to be introduced for its substantive value prior to her taking the stand and recanting the statement.

Given the above test established by Brady, the error committed by the trial court was not cured merely because Ms. Kluk was available in the courtroom. It can be argued that the above-mentioned indicia of reliability which make Ms. Kluk’s statement admissible for its substantive value were later supplied when the appellant called her as a witness. However, shifting the burden of supplying these factors to the appellant is clearly impermissible. The Commonwealth, by failing to call Ms. Kluk, virtually compelled appellant to call Kluk so that she could explain the discrepancies regarding her original statement to the police and her in-court version of the facts. The fact that the presence of Ms. Kluk on the witness stand now provided the indicia of reliability which make her original statement to the police admissible for its substantive value, in that she was under oath, subject to cross-examination and under observation by the fact-finder, does not operate to cure the Commonwealth’s violation of Brady. Brady requires the declarant to be a witness at the time the prior inconsistency is presented. Implicitly, Brady also requires that the indicia of reliability which make a prior statement of a non-party witness admissible for its substantive value must be present when that statement is presented. Therefore, it is of no consequence that that same witness is later placed on the stand as part of appellant’s defense. Thus, the Commonwealth’s error was not cured by appellant’s use of Ms. Kluk as a witness in his behalf.

A trial error is considered harmless only if the appellate court is convinced beyond a reasonable doubt that the error was harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). The burden of establishing the harmless nature of the error rests with the Commonwealth. Id. In the present case, the Commonwealth did not cure the error and such a burden cannot be placed on Appellant. Thus, we cannot conclude that the error was harmless and therefore reverse and remand for new trial.

The judgment of sentence is vacated, and the matter remanded for a new trial. Jurisdiction is relinquished.

TAMILIA, J., concurs in result.

      . The record does not reveal whether the Commonwealth objected to the filing of the supplemental post-verdict motions at the trial court level. The Commonwealth’s brief on appeal likewise does not reveal that it adopted this position below. Therefore, we will presume it did not.

      . here the Commonwealth initially objects to the filing of the supplemental post-verdict motions we would be inclined to hold that the trial court may still consider the merits of them, but must place its reasons for overlooking the procedural infraction upon the record. In the present case, it can be argued that the court did so when it stated that it would address the issue so as to avoid consideration of the same issue at some later date. (Trial Court Opinion at p. 5). However, we limit our present holding to the facts of the case as presented to us.

      . Defense counsel may have intended to call Ms. Kluk as a witness, regardless of whether the Commonwealth introduced her original statement in its case. We cannot, however, speculate in this regard. The clear result of the introduction by the Commonwealth of the inculpatory, recanted statement of Ms. Kluk was that Appellant had little choice in the matter. He was then virtually compelled to call her as his own witness.

      . Our disposition renders unnecessary discussion of Appellant’s argument that the verdict was against the weight of the evidence.


author: POPOVICH, Judge:

text:
    587 A.2d 810
    Joanne M. LONSDALE and Robert E. Lonsdale, Her Husband, Appellants, v. JOSEPH HORNE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1990.
    Decided March 14, 1991.

      Paul A. Bell, II, Indiana, for appellants.
    Mark Scorpion, Pittsburgh, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the February 13, 1990, order of the Court of Common Pleas of Allegheny County (reduced to judgment thereafter) granting a compulsory nonsuit against the Plaintiffs/Appellants, Joanne M. Lonsdale and Robert E. Lonsdale, her husband. We affirm.

An appellate court must determine the propriety of the trial court granting a nonsuit by a consideration of the facts existing at the time the nonsuit was entered. On an appeal from a compulsory nonsuit, the plaintiff is entitled to all favorable evidence and all reasonable inferences therefrom. Where a compulsory nonsuit is entered at the close of the plaintiffs evidence, the appellate court, upon appeal from a refusal by the trial court to remove the nonsuit, will determine whether plaintiffs evidence was sufficient to present a question for the trier of fact upon which a verdict or finding for the plaintiff could have been based.

9 Standard Pennsylvania Practice, § 72 (1962).

In accordance with the standard of review enunciated, the facts reveal that on February 8, 1985, Ms. Lonsdale, in the company of her friend and co-employee/teacher (Ms. Helen DeGaetano), traveled to Monroeville, Pennsylvania, to attend a reading conference sponsored by Scotts-Fordsman Publishing Company for teachers of students with reading difficulty.

The conference came to a close at approximately 3:30 p.m., and Ms. Lonsdale and Ms. DeGaetano had pre-planned to do some shopping in the Monroeville Mall at Joseph Horne Company. Prior to embarking on the shopping tour, the two women made their way to Joseph Horne’s ladies’ room. While in the restroom facilities, Ms. Lonsdale decided to “run hot water” on her hands. As Ms. Lonsdale described it:

I went over to the sink. I believe it was the second one in as you walk in the door. I turned on the [hot] water faucet [using my right hand.]
*****:[:
As I was holding my right hand on the faucet, I was warming my left hand up with the hot water.... Then I was going to turn around and do it vice versa, but then I never made it because the faucet came around and hit my two fingers[ — middle and ring fingers on right hand].

The faucet was of the type that had four prongs projecting from the top of the neck portion of the unit. One would have to turn the handle clockwise and hold it in (the “on”) position before water would flow from the spigot; it did so as long as one held the handle in the “on” position. Once the prongs were released, the spring-loaded handle would turn counterclockwise and come to rest in its former position. This automatic action would shut the flow of water from the spigot. As applicable to the case at bar, Ms. Lonsdale described the mechanics of the unit and its impact upon her thusly:

As I turned it on and was holding it there, waiting for the water to come out, it appeared like the round part, the spigot thing, you know that goes around on it, spun around and came back very quickly and with extreme force.
I
[I]t hit my fingers, which were my two fingers here[— middle and ring fingers], it came back and hit those fingers ..., I wasn’t really paying that much attention to see how that came back around because, I mean, all I knew, before I knew it, something had hit me very hard, and I really wasn’t studying to see how it did that.

The “recoil” action of the faucet handle was described by Ms. Lonsdale as being “[v]ery, very forceful, very forceful, and very quick[].”

When Ms. Lonsdale screamed upon being struck, Ms. DeGaetano went to see what had happened. She did not witness the incident, but, upon noticing Ms. Lonsdale’s fingers beginning to swell, a ring was removed from the fourth finger of the right hand. The ring was damaged to the extent that a diamond and emerald had been knocked out of their settings and it was no longer circular in shape.

Ms. Lonsdale decided to inform store personnel of what had happened to prevent a repetition of the incident. Once she reported the matter, Ms. Lonsdale escorted an employee for Joseph Horne to the ladies’ room to identify the problem sink; to-wit:

... we tried all the sinks and every sink ... stopped ... on the spigots ..., but the one that hit mine [sic] was— okay, even the cold water was okay on the sink that I was at but the hot water just kept going round and round and round, the spigot part, that part with the sprockets coming out or whatever you call them.

The Horne’s employee placed a sign on the “hot” water handle of the sink where Ms. Lonsdale sustained injury; it read: “out of order”. Thereafter, Ms. Lonsdale, at the insistence of the store, was transported to Forbes Regional Hospital for x-rays (which indicated no broken bones) and a splint was placed on her right hand. Following this, because of recurring pain in her right hand that precluded her from grasping objects firmly, Ms. Lonsdale was examined and treated by two physicians (Drs. Pollock and Xmbrigilia).

With the institution of suit against Joseph Horne Company alleging negligence, Horne’s own orthopedic physician examined Ms. Lonsdale (his testimony at trial was via a videotaped deposition), and his diagnosis was that Ms. Lonsdale was suffering from a symptom termed “atypical carpal tunnel syndrome”, a condition in which the tunnel in the wrist is narrowed so as to crowd the median nerve that travels through the tunnel in the wrist and controls the base of the palm, the thumb, the middle and half of the ring finger.

Based on information received from Ms. Lonsdale and his experience, he opined that, within a reasonable degree of medical certainty, Ms. Lonsdale’s atypical carpal tunnel syndrome was the result of the February 8, 1985, injury.

Following the presentment of Ms. Lonsdale’s case, the Defendant/Joseph Horne Company moved for a compulsory nonsuit premised on the ground that the Plaintiff/Ms. Lonsdale had failed to make out a prima facie case of negligence. The Plaintiff’s attorney countered that “we are almost in a res ipsa loquitur type of a situation” in that the negligence of Joseph Horne Company is the “most probable explanation”, in allowing the faucet to become defective, for the Plaintiff to sustain injury. Accordingly, counsel for the Plaintiff argued that his client was entitled to have the case go to the jury for resolution.

The trial court ruled in favor of the Defendant’s motion for a compulsory nonsuit. A motion to withdraw the non-suit was filed and denied. This appeal followed and raises three issues for our consideration. The first reads:

Did the Lower Court err in entering a compulsory nonsuit against the Appellants despite the evidence presented concerning the issue of negligence?

No one disputes that Ms. Lonsdale was a business invitee, and, as such, was required to have the highest degree of care exercised toward her by Joseph Home Company/possessor of land. See Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259, 262 (1975).

The Restatement (Second) of Torts, § 343 defines a breach of that duty of care owed a business invitee by a possessor of land as existing if, but only if, the property owner:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Section 343 of the Restatement (Second) of Torts has been cited with approval in this Commonwealth. See, e.g., Winkler v. Seven Springs Farm, 240 Pa.Super. 641, 645-46, 359 A.2d 440 (1976).

It is apparent from the criteria set forth in Section 343, that in order to hold the Defendant accountable for the injuries sustained by the Plaintiff, Ms. Lonsdale had to show that the Defendant either knew or, by the exercise of reasonable care, should have known that one of the seven to eight sinks in the ladies' room would malfunction and was likely to cause harm. Prior to resolving this matter, several principles of law need to be recounted; namely:

A possessor of land is not an insurer of his business invitees, and plaintiff’s evidence must establish some degree of negligence on defendant’s part in order to recover. Furthermore, a jury cannot be permitted to return a verdict based on speculation and not supported by adequate evidence or reasonable inferences. “We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based.” Circumstantial evidence is adequate to prove the plaintiffs case and “[i]t is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability ... ”, however, the mere happening of an accident is no evidence of negligence and does not raise a presumption of negligence.

Winkler, supra, 240 Pa.Super. at 646-47, 359 A.2d at 442-43 (Citations omitted).

At trial, the Plaintiff failed to submit any evidence that the Defendant had knowledge that the faucet handle was defective and involved an unreasonable risk of harm to the user. On the contrary, the Plaintiff testified on direct and cross-examination that she did not notice water dripping from any of the faucets upon her entry into the ladies’ room. She did not detect any particular problem with the faucet she used prior to turning its handle. In fact, to the question on cross-examination: “When you initially turned it [faucet handle] on, did water start to come out?” the Plaintiff indicated in the affirmative. It was only after water began flowing from the spigot that the Plaintiff observed the handle, fixed within her grasp, recoil “very quickly” in a counterclockwise motion and resulted in the four-pronged handle to turn freely thereafter when examined in the company of a Horne’s employee, who saw fit to place an “out of order” sign on the faucet in question.

Additionally, Ms. DeGaetano, albeit recalling seeing water “dripping” from the “ring underneath” and “down under” the four-pronged handle of some of the sinks, “did not know” whether the unit utilized by the Plaintiff was leaking water prior to being used.

Lastly, both the Plaintiff and Ms. DeGaetano testified that on no prior visit to the Horne’s ladies’ room had they encountered any problem with the faucets.

Taking the testimony of Ms. Lonsdale and Ms. DeGaetano, they being the only witnesses to testimony on the question of liability, and viewing it in its most favorable light, we have the absence of any showing that any allegedly dangerous condition of the faucet handle could or should have been uncovered by a proper or reasonable inspection.

The duty of inspection distinguishes the obligation of the possessor owed to the business visitors from the obligation owed to the licensees. A visual inspection has long been required for the protection of business visitors; ... and indeed, the duty may go beyond a mere visual inspection.

Crotty, supra, 237 Pa.Super. at -, 345 A.2d at 262 (Citations omitted; emphasis added). As to when a visual inspection is superseded by a more intense examination by the possessor of land, we take some guidance from this Court's decision in Starke v. Long, 221 Pa.Super. 338, 292 A.2d 440 (1972).

In Starke, this Court reversed the order of the trial court refusing to remove a compulsory nonsuit in a case in which the Plaintiff was injured when a plywood diving board broke under his weight and caused him to fall to the concrete pool apron below.

Looking to Section 343 of the Restatement (Second) of Torts, this Court held that, in view of the great risk of danger involved in platform diving, whether the Defendant’s duty stopped at a visual inspection or extended to subject the platform to tests (as to the type, the frequency and whether the test(s) would have revealed the defect) were all questions for the jury’s determination. As to when the line from visual inspection to testing of a product is crossed, we wrote:

The extent of care required to be exercised by an owner or possessor of land is at all times commensurate with the circumstances surrounding the use to which he has invited his property to be used. The comment to the above-quoted Section 343 of the Restatement of the Law of Torts, 2d, notes: “In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance. One who enters a private residence even for purposes connected with the owner’s business, is entitled to expect only such preparation as a reasonably prudent householder makes for the reception of such visitors. On the other hand, one entering a store, theater, office building, or hotel, is entitled to expect that his host mil make far greater preparation to secure the safety of his patrons than a householder mil make for his social or even his business visitors.” (emphasis supplied)
Certainly the owner and operator of a pool who permits plaintiff to be invited on his property and to participate in lifeguard lessons at his pool is under a duty to make a greater preparation for plaintiff’s use of the premises than would be the ease where the invited use involves less likelihood of danger.

221 Pa.Super. at 341-42, 292 A.2d at 443. Further, as is stated in the Comment to Section 343 of the Restatement (Second) of Torts: “A possessor who holds his land open to others must possess and exercise a knowledge of the dangerous qualities of the place itself and appliances provided thereon which is not required of his patrons.” Id., 221 Pa.Superior Ct. at 344, 292 A.2d at 444.

We in no sense equate the danger associated with platform diving with the rather innocuous practice of turning a faucet handle to wash one’s hands. As such, we do not deem it a jury question to determine whether tests, beyond a mere visual inspection, of the faucet handle(s) located in Home’s ladies’ room were required to satisfy the property owner’s duty of care toward business invitees. Contrast Winkler, supra, with Starke, supra. The fact that neither Ms. Lonsdale nor Ms. DeGaetano was able to detect any deficiencies with the faucets located in the ladies’ restroom, it seems reasonable to conclude that a visual inspection by Horne’s personnel would have disclosed nothing more insightful that could have avoided the injury to the Plaintiffs right hand.

Stated differently, no evidence whatsoever was introduced to show that the “recoiling” of the faucet handle was caused by some discoverable condition or structural defect of which the Defendant could have been aware had it performed an inspection. Winkler, supra; Starke, supra. Since there was an absence of evidence to indicate that the faucet handle was in any way defective or that it had ever prematurely “recoiled” prior to Ms. Lonsdale's use of it, we are loathe to say that the condition of the faucet handle would support an inference of negligence on the part of the Defendant. Winkler, supra.

In her second claim on appeal, the Plaintiff argues: The Evidence Presented by the Appellants was Sufficient to Invoke the Doctrine of Res Ipsa Loquitur and the Burden of Proof Should Have Been Shifted to the Appellee to Prove that it was not Negligent.

In Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974), the Pennsylvania Supreme Court adopted Section 328D of the Restatement (Second) of Torts, titled Res Ipsa Loquitur, which provides:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

The Restatement makes clear that to reach the jury, the Plaintiff must by a preponderance of the evidence prove all of the elements enumerated in subsection (1). Hollywood Shop, Inc. v. Pa. Gas & Water Co., 270 Pa.Super. 245, 411 A.2d 509 (1979).

In the case sub judice, the trial court ruled, without elaboration, that the Plaintiff did not establish a prima facie case of negligence. We wish to expound on the basis for affirming the nonsuit, and we begin with the Plaintiff’s failure to fulfill the requirement of Section 328D(l)(b) (sufficiently eliminating other responsible causes).

Although the Plaintiffs testimony sufficiently eliminates her own conduct as possibly being a responsible cause of this accident, the same cannot be said with eliminating third persons as a responsible cause of this accident. Contrast Smith v. City of Chester, 357 Pa.Super. 24, 515 A.2d 303 (1986), wherein this Court observed on this point that:

It is not necessary that appellant exclude all other possible causes of the accident beyond a reasonable doubt. All that is required is that appellant present a case from which a jury may reasonably conclude that the negligence was, more probably than not, that of the defendant. Restatement (Second) of Torts § 828 D comment f. We find from our review of the record that appellant has met the threshold requirements of section 328 B(l)(b) in that the jury could reasonably conclude that it was more likely than not that appellant’s injuries were the result of appellee’s negligence. Lanza v. Poretti, supra [537 F.Supp. 777 (1982)]. There was substantial evidence presented at trial that, if found credible, would eliminate appellant’s employer as a possible cause of the accident

357 Pa.Super. at 28, 515 A.2d at 305-06 (Emphasis added; footnote omitted).

Instantly, unlike Smith, there was no evidence presented at trial that, if found credible, would eliminate third parties (e.g., manufacturer and other store patrons) as possible causes of the accident. Furthermore, common human experience suggests some explanations for a faucet handle breaking (excessive, inordinate and improper use) which do not involve negligence. The totality of these circumstances cannot be viewed to raise an inference of negligence, see Winkler, supra, and, as.it is still the Plaintiffs responsibility to advance some evidence to buttress her allegation, we find no justification for reversing the trial court’s ruling on the second claim of error raised on appeal. Paul v. Hess Bros., 226 Pa.Super. 92, 312 A.2d 65 (1973).

The last of the Plaintiff’s contentions reads:

The Appellee, by Presenting Evidence During the Appellants’ Case, Waived its Right to the Entry of a Nonsuit.

More particularly, the Plaintiff urges that the nonsuit was granted improperly because the Defendant, during her casein-chief, presented evidence to the jury in the form of: (a) cross-examination that presented a defense; (b) exhibiting a faucet unit with such frequency that it “became part of the case”; and (c) showing photographs of the restroom which, considered separately or as a whole, constituted the introduction of evidence precluding the entry of a nonsuit.

It is true that a Defendant’s right to request a nonsuit is premised upon his/her offering no evidence, and a trial court cannot grant a nonsuit after the introduction of evidence by the Defendant. F.W. Wise Gas Co. v. Beech Creek Railroad Co., 437 Pa. 389, 263 A.2d 313, 315 (1970). However, we find that neither the faucet nor the photographs were ever “admitted” into evidence to become a formal part of the case, a fact which is conceded by the Plaintiff in her appellate brief at 25. Yet, she persists in the belief that “these items, in fact if not in law, became evidence in support of the Appellee’s case. ” Id. (Emphasis added). We disagree.

To begin with, the Defendant attempted to utilize a faucet to reconstruct the manner in which the Plaintiff gripped the original unit (purportedly still in use) and to allow the jury to visualize the physical characteristics of the object.

We find that the testimony elicited from Ms. Lonsdale, when viewed in conjunction with the presentment of photographs of the supposed ladies’ room, was not helpful to the Defendant’s case inasmuch as neither the unit nor the photos taken were able to be identified as reproductions of the “original(s)” they were intended to depict. See Reproduced Record at 220, 221. Therefore, we are in a quandary as to how either item became “evidence” for the defense when they could not be identified as depicting the original item(s) by Ms. Lonsdale. Id.

With regard to the use of Ms. Lonsdale’s March 3, 1988, deposition to contradict her trial testimony in which she denied having soap in her hands either before or after warming her hands under the tap water, we find this line of questioning (see id. at 225-226) by the Defendant did not exceed proper bounds of cross-examination so as to elicit matters constituting a defense to the cause of action. Contrast Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736, 744 (1978). More importantly, there is no indication from the trial court that any of the complained-of matters recited by the Plaintiff were relied upon, either singularly or in concert, as the basis for the entry of the nonsuit. Contrast Highland Tank and Manufacturing Co. v. Duerr, 423 Pa. 487, 225 A.2d 83 (1967) (Judgment of nonsuit reversed where exhibits, introduced by the Appellee following presentation of the Appellant’s case, were used in connection with cross-examination of the Appellant’s witnesses and was considered by the trial court in granting the nonsuit)', Smith v. Standard Steel Car Co., 262 Pa. 550, 106 A. 102, 104 (1919) (Judgment reversed where the Defendant improperly cross-examined the Plaintiff’s witness to show a defense to the action, “and evidence so elicited cannot be made the basis of a nonsuit.”); Catanzaro v. Pa. R.R. Co., 230 Pa. 305, 79 A. 624, 625-26 (1911) (Judgment reversed where trial court improperly, and against objection, allowed the Defendant to introduce documents into evidence following cross-examination of the Plaintiff’s witness as an attempt to introduce a matter of defense on cross-examination; the trial court was “influenced solely by the evidence elicited on cross-examination ... [and o]n no other ground was the nonsuit asked [and rested].”).

For the reasons herein stated, we affirm the actions of the trial court entering an order (ultimately reduced to judgment) of nonsuit in favor of the Defendant and against the Plaintiffs.

Affirmed.

      . The filing of the motion to withdraw the nonsuit was a condition precedent to perfecting an appeal to this Court. See, e.g., Crawford v. Com., 125 Pa.Cmwlth. 85, 556 A.2d 547 (1989); Conte v. Barnett’s Bootery, Inc., 320 Pa.Super. 412, 467 A.2d 391 (1983).

      . A business invitee is a person who is entitled or permitted to enter real property of another for a purpose directly or indirectly connected with business dealings between the two. Kimble v. Mackintosh Hemphill Co., 359 Pa. 461, 59 A.2d 68, 78 (1948).

      . For example, the Plaintiff testified that she looked at the faucets in the ladies’ room at the Joseph Horne Company and saw nothing unusual. Ms. BeGaetano, who was present in the ladies’ room at the same time, echoed the Plaintiffs observations. Thus, there was no evidence presented which would lead one to believe that the Plaintiff was on notice that the faucet handle was broken or about to break upon use by Ms. Lonsdale. See Smith v. City of Chester, 357 Pa.Super. 24, 515 A.2d 303, 305 (1986). Also, there was no testimony elicited from Ms. Lonsdale which would indicate that she used excessive force in turning the faucet handle leading to its breaking.

      . We would add, as an aside, a response to the Defendant’s erroneous assertion that, absent the production of expert testimony to establish that an accident is the type which does not generally occur absent some negligence, a case for the use of res ipsa loquitur is not present. As stated by this Court in Smith v. City of Chester, 357 Pa.Super. 24, 515 A.2d 303, 305 (1986), " ‘a res ipsa loquitor [s/c 1 charge is appropriate where ... the plaintiff brings no evidence of specific acts of negligence____’ ” (Citation omitted). The presumption of negligence may arise from the entire absence of proof, or the want of clear and indubitable proof, of the cause of the accident. Therefore, a Plaintiff must rely on the res ipsa loquitur inference alone. See Hollywood Shop, Inc. v. Pa. Gas & Water Co., 270 Pa.Super. 245, 411 A.2d 509, 512, 513 (1979).
      It is not that expert testimony is not preferable to shed light on a matter that is beyond the average layman to comprehend. However, such testimony is not the linchpin for the use of an evidentiary rule of law of which res ipsa loquitur is one such instrument available to a Plaintiff to aid in proving his/her case. See Smith, supra.


text:
    588 A.2d 13
    COMMONWEALTH of Pennsylvania v. Barry GIBBS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1990.
    Filed Jan. 7, 1991.
    Reargument Denied March 21, 1991.

      D. Benjamin Van Steenburgh, III, Public Defender, Milford, for appellant.
    Michael Kane, Deputy Atty. Gen., Harrisburg, for Com., appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

This is an appeal from the order denying appellant Barry Gibbs’ petition to preclude the Commonwealth from seeking the death penalty at his second trial upon remand based upon statutory aggravating circumstances listed in 42 Pa. C.S. § 9711(d) not found by the sentencing jury at his first trial. We are asked to decide whether the Commonwealth’s seeking of these aggravating circumstances in the second trial violates a defendant’s constitutional right not to be twice put in jeopardy. This precise question has been answered in the negative by the Supreme Court of the United States in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). Therefore, the Commonwealth may seek the aggravating circumstances not found at the first trial. The Commonwealth may also seek the aggravating circumstance of killing a peace officer, as the victim, a security guard, was empowered under 53 P.S. § 3704 (the “Night Watchmen’s Act”). However, unless Gibbs contracted to kill the victim specifically, the Commonwealth may not advance the contract killing aggravating factor.

Gibbs was solicited by the wife of a Pike County, Pennsylvania housing development security guard to kill her husband. It is not clear whether Gibbs also agreed to kill another guard, the ultimate and only victim. The wife promised Gibbs, then eighteen, money, a leather jacket and a motorcycle or boat in exchange for his services. On the night of March 27, 1984, Gibbs accepted the offer. Accompanied by the wife and three others, he found the husband and the other guard in the housing development security office. Gibbs fired a shot, missing the husband but killing the other man.

On December 14, 1984 a jury convicted Gibbs of first degree murder, criminal attempt to commit homicide, criminal conspiracy to commit homicide and aggravated assault. At the sentencing stage of the trial, the court instructed the jury on all statutory aggravating circumstances as set forth in 42 Pa.C.S. § 9711(d). The jury found as aggravating circumstances “Peace Officer; Contract for Pay; Premeditated: Lethal Weapon.” Verdict as entered upon the docket, December 14, 1984. Pursuant to 42 Pa.C.S. § 9711(c)(l)(iv), having determined that the aggravating circumstances of the crime outweighed the mitigating circumstances, the jury returned a verdict of a sentence of death. Gibbs appealed his judgment of sentence directly to the Pennsylvania Supreme Court pursuant to 42 Pa.C.S. § 9711(h). The Supreme Court, finding that his confession was involuntarily given, vacated the judgment of sentence and remanded for a new trial. Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409 (1989), cert denied, — U.S. —, 110 S.Ct. 403, 107 L.Ed.2d 369 (1989).

At commencement of the second trial, on February 15, 1990, the Commonwealth filed a Notice of Aggravating Circumstances in which it stated its intention to seek a sentence of death based upon the following statutory aggravating circumstances set forth in 42 Pa.C.S. § 9711(d): 1) The victim ... was a peace officer who was killed in the performance of his duties. 2) The defendant was paid and had contracted to be paid by another person and had conspired to be paid by another person for the killing of the victim. 3) In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense. On March 16, 1990 the Commonwealth filed a Motion to Add Additional Aggravating Circumstance, that Gibbs committed a killing while in perpetration of a felony. 42 Pa.C.S. § 9711(d).

On February 20, 1990, Gibbs filed his Omnibus Pre-trial motion in which he moved to “Preclude Death Penalty Based on Insufficient Evidence at Prior Trial” of the Commonwealth’s original three grounds. On March 21, 1990 Gibbs filed a motion in opposition to the Commonwealth’s notice that it would seek the death penalty based partly upon the “grave risk of harm to another” factor. After briefing and argument, on March 21, 1990, the court denied Gibbs’ motions to preclude the Commonwealth from seeking as aggravating circumstances that the victim was a peace officer, that the crime was a contract killing and that the act created grave risk of harm to another. By the same order the court granted the Commonwealth’s request to add as an aggravating circumstance killing while perpetrating a felony.

On March 27, 1990, the trial court, in response to Gibbs’ petition, issued an order pursuant to 42 Pa.C.S. § 702(b) certifying that its March 21 order involved controlling questions of law and that an appeal would materially advance the ultimate termination of the matter. It did not find that the double jeopardy claims raised by Gibbs were frivolous. On April 3,1990, Gibbs filed a notice of appeal, and on April 6, 1990 Gibbs filed a petition for review and for permission to appeal. The Commonwealth filed a motion to quash the direct appeal. We granted Gibbs’ petition and denied the Commonwealth’s motion to quash by order of June 27,1990. Having ruled thus, we determined that the order in question met the requirements for appealability.

We now address a preliminary issue, that of the Superior Court’s jurisdiction in this case. We recognize that the power to review appeals from judgment of a sentence of death is vested exclusively with the Pennsylvania Supreme Court, 42 Pa.C.S. § 9711(h). The case now before us is not an appeal from a judgment of sentence of death. Rather, the Supreme Court has vacated the death sentence and remanded for a new trial; the appeal in question is from a certified pre-trial order upon commencement of Gibbs’ new trial. The Superior Court has exclusive appellate jurisdiction over final orders of courts of common pleas unless otherwise provided by statute. 42 Pa.C.S. § 742. Interlocutory appeals, where authorized, are within the jurisdiction of the appellate court having jurisdiction over final orders in such matters. 42 Pa.C.S. § 702; Pa. R.A.P. 701, 42 Pa.C.S. The note to Pa.R.A.P. 702, discussing section 702(b), which gives the Supreme Court exclusive jurisdiction over appeals from sentences for lesser offenses imposed along with a sentence of death, is instructive:

Ordinarily Rule 701 will have no application to matters within the scope of Subdivision (b), since that subdivision is contingent upon entry of a final order in the form of a sentence of death; the mere possibility of such a sentence is not intended to give the Supreme Court direct appellate jurisdiction over interlocutory orders in homicide and related cases since generally a death sentence is not imposed.

Pa.R.A.P. 702, 42 Pa.C.S., Note (emphasis supplied).

In concert with this reasoning, this court has entertained, rather than transferring to the Supreme Court, interlocutory appeals involving death penalty statute issues where the judgment of sentence of death has not yet been entered. See Commonwealth v. Rende, 335 Pa.Super. 509, 485 A.2d 9 (1984), an appeal from a pre-trial order refusing to bar the death penalty on double jeopardy grounds; we quashed because the appeal raised issues not cognizable in a pre-trial posture. Similarly, we have entertained post-trial appeals raising death penalty issues where no death penalty was imposed. See Commonwealth v. Karabin, 362 Pa.Super. 300, 524 A.2d 516 (1987), affirmed 521 Pa. 543, 559 A.2d 19 (1989), a Commonwealth appeal from the trial court’s vacating of the sentence of death, in which we decided that the trial court improperly presented the aggravating circumstance to the jury. We conclude that, where, as here, no sentence of death has been entered and appealed from, the Superior Court has exclusive jurisdiction pursuant to 42 Pa.C.S. § 702 over this interlocutory, certified order.

We now address the merits. Gibbs argues that the Commonwealth should be precluded from seeking the death penalty on the basis of “grave risk of death to another,” 9711(d)(7), and “killing while perpetrating a felony,” 9711(d)(6) because both factors, argued and not found by the jury in the first trial, should now be precluded by double jeopardy principles. Gibbs also argues that it is improper for the Commonwealth to rely upon the Killing of a Peace Officer ground, 9711(d)(1), because the victim, a privately employed security guard at a housing development, is not a peace officer as defined in 18 Pa.C.S. 501. Last, he avers that the Commonwealth may not invoke the Contract Kill ing factor, 9711(d)(2), because the victim was not the subject of the contract.

At his double jeopardy argument, Gibbs asserts that, by not finding the two statutory aggravating factors of grave risk of death to another and killing while perpetrating a felony, the sentencing jury in the first trial “acquitted” him of these factors. Therefore, Gibbs claims that, by submitting these grounds in the second trial, the Commonwealth violates his constitutional right not to be twice put in jeopardy. This precise issue was before the Supreme Court of the United States in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). In Poland, a jury convicted the defendants (brothers) of first-degree murder. Pursuant to the then-effective Arizona capital sentencing statute, the trial judge, sitting as finder of fact, found the aggravating circumstance of crime committed in especially heinous manner but found that the aggravating circumstance of pecuniary gain was not present. On appeal, the Arizona Supreme Court vacated the conviction. It also held that the evidence was insufficient to support the “especially heinous” circumstance, but that the trial court erred in finding that the circumstance of pecuniary gain was not present and suggested that it could be found in the future.

Following the defendants’ convictions at the second trial, the prosecution argued the circumstances of “especially heinous” and of “pecuniary gain.” In addition, it presented a circumstance not argued at the first trial, previous conviction of a felony involving the threat or use of violence to another person. The trial judge found all three present and again sentenced the defendants to death. The defendants argued, on appeal to the Arizona Supreme Court, that the Arizona Supreme Court's determination in the first appeal that the evidence failed to support the “especially heinous” aggravating circumstance barred reimposition of the death penalty. The court rejected this argument, writing that the holding that the evidence was insufficient to support this ground “was not tantamount to a death penalty ‘acquittal.’” Poland, 476 U.S. at 151, 106 S.Ct. at 1753, 90 L.Ed.2d at 129, quoting State v. Poland (Patrick), 144 Ariz. 388, 404, 698 P.2d 183, 199 (1985). The court then again found the evidence insufficient to support “especially heinous” but sufficient to support “pecuniary gain” for both brothers and found the “prior conviction involving violence” ground for one brother.

The Supreme Court of the United States granted certiorari to decide whether reimposing the death penalty violated the double jeopardy clause, because, as put by the defendants, the Arizona Supreme Court in the first appeal “acquitted” them of the death penalty by finding the evidence insufficient to support the sole aggravating circumstances found by the sentencer, “especially heinous manner.” The defendants relied upon Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), as does Gibbs in this case. In Bullington the court held that a defendant sentenced to life imprisonment by a capital sentencing jury is protected by the double jeopardy clause against imposition of the death penalty in the event that he obtains reversal of his conviction and is retried and reconvicted. Poland, 476 U.S. at 152, 106 S.Ct. at 1753, 90 L.Ed.2d at 130.

The Bullington court held that a jury’s decision to impose a life sentence because they found no aggravating circumstances is a conclusion that the prosecution has not proved its case with regard to the existence of a basis for the death penalty, and that such a finding is an “acquittal” of the death penalty, a decision that, under the double jeopardy clause, cannot be revisited. The Poland court distinguished Bullington:

We reject the fundamental premise of petitioners’ argument, namely, that a capital sentencer’s failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an “acquittal” of that circumstance for double jeopardy purposes. [.Bullington ] indicates that the proper inquiry is whether the sentencer or reviewing court has “decided that the prosecution has not proved its case” that the death penalty is appropriate. We are not prepared to extend [Bullington ] further and view the capital sentencing hearing as a set of mini-trials on the existence of each aggravating, circumstance....
Aggravating circumstances are not separate penalties or offenses, but are “standards to guide the making of [the] choice” between the alternative verdicts of death and life imprisonment (citation omitted). Thus, under Arizona’s capital sentencing scheme, the judge’s finding of any particular aggravating circumstance does not of itself “convict” a defendant (i.e. require the death penalty), and the failure to find any particular aggravating circumstance does not “acquit” a defendant (i.e., preclude the death penalty).

Poland v. Arizona, 476 U.S. at 155-156, 106 S.Ct. at 1755, 90 L.Ed.2d at 132. To the Poland court, the significant distinction is that:

“the law attaches particular significance to an acquittal” (citations omitted).
This concern with protecting the finality of acquittal is not implicated when, as in these cases, a defendant is sentenced to death, ie., “convicted.” There is no cause to shield such a defendant from further litigation; further litigation is the only hope he has. The defendant may argue on appeal that the evidence presented at his sentencing hearing was as a matter of law insufficient to support the aggravating circumstances on which his death sentence was based, but the Double Jeopardy Clause does not require the reviewing court, if it sustains that claim, to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected.

Poland, 476 U.S. at 156-157, 106 S.Ct. at 1756, 90 L.Ed.2d at 133.

The Pennsylvania death penalty statute is structured as is the Arizona statute in that aggravating circumstances are standards to guide the making of the choice: if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances, or if the jury unanimously finds one or more, aggravating circumstances which outweigh any mitigating circumstances, then the verdict must be for the death sentence. 42 Pa.C.S. § 9711(c)(l)(iv). Following the reasoning of Poland, it is not the finding of the presence or absence of an aggravating circumstance that is dispositive of whether the defendant will receive the death sentence, but rather it is the ultimate conclusion reached after the factfinder weighs all the factors found, both aggravating and mitigating. Put simply, if the factfinder in the first trial imposes the death penalty, double jeopardy never attaches, and the prosecution may seek the death penalty in a second trial based upon any of the statutory grounds it finds relevant, regardless of whether they were found or not found in the first trial.

In this case, the sentencing jury in the first trial returned a verdict of the death sentence. Therefore, under Poland, no matter what aggravating factors that jury considered, so long as they found that the presence of one or more factors weighed with other circumstances warranted the death penalty, the prosecution is not precluded from seeking to prove any specific aggravating factors and is clearly not precluded from again seeking the death penalty.

Next we address the legal question of whether 42 Pa.C.S. § 9711(d)(2) contemplates the situation in which the victim was not the person whom the defendant had contracted to kill. Gibbs submits that the aggravating circumstance statute must be construed narrowly. The Commonwealth argues that the statute applies to the killing of another in the course of carrying out a contract killing, and that, in any event, Gibbs contracted to kill both men. On this appeal we do not review the sufficiency of the evidence to support an aggravating circumstance, as the Supreme Court must do when reviewing appeals from sentences of death, nor do we have the record that would enable us to make a sufficiency determination. Therefore, we do not address the Commonwealth’s point that Gibbs actually did contract to kill both men. We interpret the certified question before us to be purely one of statutory interpretation. The aggravating circumstance in question is as follows:

(2) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.

42 Pa.C.S. § 9711. Neither the parties nor the trial court advances any case authority regarding whether 9711(d)(2) can apply to unintended victims, nor do we find any. This seems to be a question of first impression.

In support of its position the Commonwealth relies upon Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 3127 (1983), by way of analogy. In Zettlemoyer the defendant argued that the Commonwealth failed to prove the aggravating circumstance of: victim was a prosecution witness to a murder committed by the defendant and was killed for the purpose of preventing his testimony, 9711(d)(5). He argued that the Commonwealth failed to prove his motive for killing the witness beyond a reasonable doubt and that the Commonwealth failed to prove that he committed the antecedent murder. Reviewing sufficiency, and finding ample support for these findings in the record, the court rejected defendant’s arguments. Nothing in the Zettlemoyer opinion supports the Commonwealth’s suggestion that, to satisfy the aggravating circumstance at issue, the victim in our case need not be the subject of the murder contract.

The plain language of the contract killing aggravating circumstance statute at issue in this case precludes an unintended victim. We reject the Commonwealth’s interpretation of the statutory language, that its gravamen is that a contract to kill was made. It may be trae that Gibbs contracted to kill somebody, but the aggravating circumstance at issue is not simply that the defendant contracted to kill in the abstract. He must have “been paid by another ... for the killing of the victim.” The Commonwealth suggests, and the trial court expressly found, that a “transferred intent” theory brings the killing at issue here within the meaning of the statutory aggravating circumstance. At common law, if the specific intent to commit murder of a particular individual exists, this intent can be transferred for the purpose of finding the elements of murder, even if the actual victim is not the intended victim. See Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955).

We will not judicially broaden a clearly drafted statute to include application of common law transferred intent theory, the purpose of which is to establish the elements of a crime. The aggravating circumstances are legislatively created. They are not crimes in themselves but rather are standards to guide the making of the choice between death and life imprisonment. Poland v. Arizona, 476 U.S. at 155-156, 106 S.Ct. at 1755, 90 L.Ed.2d at 132. It is entirely inappropriate for this court to augment the finding of a legislatively-created aggravating circumstance that can result in a sentence of death with a common law theory designed to establish intent for a crime. This situation presents the clearest reason to follow the statutory directive to construe strictly any criminal statute. 1 Pa.C.S. § 1928. It is up to the legislature, if they so choose, and not to the courts, to affirmatively incorporate the “transferred intent” concept into this aggravating circumstance by way of express language. We conclude that the Commonwealth may seek the contract killing aggravating circumstance only if Gibbs contracted to kill the victim.

Last, Gibbs argues that the security guard victim was not a “peace officer” within the meaning of § 9711(d)(1) (“The victim was a ... peace officer ...”) because he was employed as a security guard at a private housing development. Gibbs contends that this statutory aggravating circumstance applies only to one “who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests ...” 18 Pa.C.S. § 501, definition of “peace officer,” and that a private security guard does not fall under this definition. Gibbs5 argument fails. The victim was appointed as a night watchman by the Court of Common Pleas of Pike County pursuant to the Night Watchmen’s Act, 58 P.S. § 3704:

It shall be lawful for any number of persons owning or occupying real estate in any city, borough or township of this commonwealth, upon application to and with the approval of the court of quarter sessions of the proper county, to employ a night watchman or night watchmen for the purpose of protecting their premises and property in the night-time and all persons so appointed, with the approval aforesaid, as night watchman shall have, exercise and enjoy all the rights, powers and privileges, now vested by law in constables or police officers duly elected or appointed in said cities or boroughs....

53 P.S. § 3704. The victim was empowered by the court and was acting in the capacity of a “peace officer.” Opinion of the Honorable Harold A. Thomson, Jr., March 21, 1990 at 4. We conclude that the Commonwealth may seek the aggravating circumstance of killing a peace officer.

To summarize, we find no double jeopardy violation in the Commonwealth’s seeking to prove aggravating circumstances not found by the sentencing jury in the first trial. We find that, as a matter of law, the “contract killing” aggravating circumstance cannot be transferred to an unintended victim, but that, as a matter of law, the “killing of a peace officer” aggravating circumstance does apply to the killing of a private security guard duly empowered by the Court of Common Pleas under the Night Watchmen’s Act. Hence, we reverse that portion of the Order of March 21, 1990 allowing the Commonwealth to seek to prove the “contract killing” aggravating circumstance by way of a transferred intent theory. We affirm all other portions of the order.

Order affirmed in part, reversed in part. Case remanded. Jurisdiction relinquished.


author: MONTEMURO, Judge.

text:
    588 A.2d 19
    Ruth MONSKY, Appellee, v. Stephen SACKS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1990.
    Filed Jan. 29, 1991.
    Reargument Denied April 11, 1991.

      Stanley M. Shingles, Philadelphia, for appellant.
    Robert Mercadante, Churchville, for appellee.
    Before McEWEN, MONTEMURQ and JOHNSON, JJ.
   MONTEMURO, Judge.

This is an appeal from an Order requiring appellant to pay $75 per week support for his son, a full time college student.

The parties have been separated since at least January of 1972, some six months after the birth of their son, Lionel. At that time appellee filed for support, and the record reveals that orders of support were entered in 1972, and again in 1974. From 1974 to the present there have been three contempt of support petitions filed against appellant. In July of 1989, appellant requested that the 1974 support order (which had not been superceded), for $50 per week and $7 per week arrearages, be vacated on the grounds that Lionel had reached the age of eighteen, had graduated from high school and was emancipated. Three weeks later appellee filed a petition to increase. At a hearing on both parties’ requests, the Permanent Hearing Officer found that Lionel was a full time student in the architecture school of Tulane University, and granted appellee’s petition for increase to $75 per week. This appeal followed.

We first note that our scope of review in support cases is narrow.

No child support order will be disturbed unless there is insufficient evidence to sustain the order or there has been an abuse of discretion by the lower court. Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986). ‘An abuse of discretion is not “merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record, discretion is abused.” ’ Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985).

Coffey v. Coffey, 394 Pa.Super. 194, 196, 575 A.2d 587, 588 (1990), citing Steenland-Parker v. Parker, 375 Pa.Super. 457, 461, 544 A.2d 1010, 1012 (1988).

The scope of review is not affected by the fact that the child in question is of college age rather than a minor, and that the support is for college attendance. Pha roah v. Lapes, 391 Pa.Super. 585, 571 A.2d 1070 (1990). However, where the child involved is of college age, and both willing and able to benefit from college training, the inquiry shifts from the needs of the child to the ability of the parent to contribute to the child’s education without undue hardship. See, Leonard v. Leonard, 353 Pa.Super. 604, 510 A.2d 827 (1986). This does not mean, however, that a parent may not be required to undergo some measure of personal sacrifice in order to fulfill his or her obligation. Commonwealth ex rel. Hanerkam v. Hanerkam, 221 Pa.Super. 182, 289 A.2d 742 (1972). That is the dispute herein, as appellant claims that any contribution from him at all would constitute hardship that is undue.

Appellant is fifty-one years old and since 1988 has been employed as a teaching fellow/Ph.D. candidate in political science at Temple University. Appellant has an undergraduate degree in accounting and a master’s in public administration and political science, and had begun his doctorate in 1986 while employed by the University in an administrative capacity. He was awarded the fellowship when his job was terminated by departmental reorganization. Prior to that time, appellant had owned his own business, which had failed due to certain financial reverses. Before starting the business, appellant had worked for twelve years in various consulting slots for the Commonwealth of Pennsylvania. These positions ended with a change of administrations. During the intervals between periods of professional employment, appellant was employed as a sales clerk. Appellant’s remuneration from his current teaching position is annualized at approximately $20,000. He also testified to receiving $2,000 for the summer as a consultant on a University project, and a state pension of $129 per month.

Appellant has no savings, and no assets save a used car, some furniture and a computer purchased in 1986. He also claims outstanding debt of between $10,000-20,000, and potential liability for surgery to repair a torn rotator cuff in his right shoulder.

Without declaring appellant’s listed expenses absolutely unreasonable, the Permanent Hearing Officer did question the necessity for some of them. The thrust of her findings, however, centered on appellant’s putative ability to obtain part-time employment to help with his son’s expenses. Appellant argues that his teaching load of nine hours per week is essentially full time, and that the work connected with these classes — preparation time, giving and grading exams — plus whatever his own degree program requires, makes additional employment impossible.

There is no suggestion here that appellant is somehow deliberately avoiding alternative, and more remunerative employment in order to avoid at the same time his support obligations. However, not merely actual earnings but earning capacity must be evaluated in deciding the propriety of a child support award. Leonard, supra. While appellant’s potential is clearly greater than his current achievement, he need not be penalized for having chosen to provide himself a stable future in academia. Nevertheless, there are ways in which appellant might increase his cash flow without overburdening himself: increased summer employment leaps to mind, as does tutoring, neither of which would jeopardize the attention necessary for his doctoral program.

Appellant argues that he owes no duty of support where his income limitations are so obvious. Appellant’s past record reveals that even while in (temporarily) secure employment with the Commonwealth appellant accumulated arrearages, from which it might be argued that appellant’s sense of obligation to Lionel does not necessarily alter with his own financial condition.

We find from all of the foregoing that there was no abuse of discretion in the trial court’s award of support.

Order affirmed.

      . The record does not reveal the date of the parties’ divorce. Appellee has remarried, and has a son, aged approximately 13 years old, by her second husband.

      . Appellant has not remarried and lives by himself in an apartment.