author: JOHNSON, Judge:

text:
    503 A.2d 954
    C. William NYE, Jr., Individually and as Administrator of the Estate of Karen L. Nye, Deceased, and all Others Similarly Situated, Appellants, v. ERIE INSURANCE EXCHANGE; Aetna Casualty and Surety Company; Allstate Insurance Company; American States Insurance Company; CNA Insurance Company; Commercial Union Assurance Company; Donegal Mutual Insurance Company; Employer’s Insurance of Wausau; Fireman’s Fund Insurance Companies; General Accident Group; Harleysville Insurance Company; Hartford Insurance Group; Home Insurance Company; Insurance Company of North America; Kemper Insurance Company; Keystone Insurance Company; Liberty Mutual Insurance Company; Maryland Casualty Company; Motorists Insurance Company; Nationwide Mutual Insurance Company; Ohio Casualty Insurance Company; Pennsylvania National Insurance Group; the Prudential Insurance Company of America; Royal-Globe Insurance Company; Safeco Insurance Company; Shelby Mutual Insurance Company; State Automobile Mutual Insurance Company; Statesman Group; State Farm Mutual Automobile Insurance Company; Travelers Insurance Companies; United States Fidelity and Guaranty Company.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1985.
    Filed Jan. 24, 1986.

      Richard C. Angino, Harrisburg, for Nye, appellants.
    Clyde W. McIntyre, Pittsburgh, for Erie Ins., appellees.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, C. William Nye, is the administrator of the estate of Karen L. Nye, who was killed in an automobile accident in Swatara Township on December 21, 1978. Nye filed a class action suit in the Court of Common Pleas of Dauphin County against Appellee, Erie Insurance Exchange, and several other insurance carriers seeking postmortem no-fault benefits for lost wages as provided for under the Pennsylvania No-fault Motor Vehicle Insurance Act. At the time of her fatal accident Karen Nye was covered by a no-fault motor vehicle insurance policy issued by Appellee.

Preliminary objections were filed by the defendant insurance carriers, which contended that Appellant did not state a cause of action. Additionally, all carriers except Erie Insurance Exchange challenged Appellants’ standing to bring the action. The trial court dismissed the complaint against all defendants except Erie and also dismissed the class action complaint filed as against Erie because the complaint did not reflect the existence of dependent survivors.

On appeal, this Court reversed the determination of the trial court in Nye v. Erie Insurance Exchange, 307 Pa.Super. 464, 453 A.2d 677 (1982), deciding that a class action suit could be maintained against all the defendants and that there was no requirement to plead the existence of dependent survivors. Upon further review, however, our supreme court, in Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983), concluded that Appellants’ complaint stated a cause of action, but that Appellants only had standing to sue Erie Insurance Exchange. The trial court’s dismissal of the complaint against insurance carriers other than Erie was affirmed by the supreme court.

Following remand, Appellee Erie Insurance Exchange filed an Answer and New Matter which alleged that the case should be stayed because Erie was a defendant in Saunders v. Erie Insurance Group, GD80-9011, a case pending in the Court of Common Pleas of Allegheny County. The Saunders complaint, which involved a class action claim seeking no-fault benefits for lost wages, was filed subsequent to the filing of the complaint in the instant case. In Saunders, however, the class had already been certified when Erie filed its request for a stay.

On May 4, 1984 Appellants filed a motion for class certification, partial summary judgment and consolidation with several other cases pending in Dauphin County. The trial court also had under consideration three petitions to intervene from representatives of decedents insured by Erie and six other petitions from representatives of decedents covered by insurance companies which had already been dismissed from this action.

A certification hearing was held on August 15, 1984. Two days prior to the hearing Appellants filed a Petition to Amend Complaint seeking to enlarge the putative class to include all survivors and estates denied work loss benefits as early as November 15, 1975. In an order and opinion dated September 11, 1984, the trial court denied Appellants’ motions for class certification, partial summary judgment and consolidation. The trial court took no action on the Petition to Amend Complaint. This appeal followed.

Appellants initially contend that the trial court erred in refusing to certify the instant class action. The trial court’s refusal to certify the class was based on its belief that the Saunders class action encompassed the instant case and that it would be duplicative and wasteful of judicial resources to certify another class of Erie insureds. Appellants assert that substantial differences exist between the instant case and Saunders.

Appellants also argue alternatively that the trial court should have granted intervention and then transferred the instant action to Allegheny County for consolidation with the Saunders case. The trial court concluded that the potential intervenors represented by Erie had unduly delayed in making application for intervention while those represented by insurance carriers other than Erie could not intervene because their carriers had already been dismissed as defendants.

Before addressing the merits of this case we must first consider what standard of review should apply to a trial court’s order granting or denying class certification. This question was recently addressed in D'Amelio v. Blue Cross of Lehigh Valley, 347 Pa.Super. 441, 500 A.2d 1137 (1985). There we stated:

The lower court’s determination regarding class certification is a “mixed finding of law and fact entitled to ‘appropriate deference’ upon appeal.” Janicik v. Prudential Insurance Co. of America, 305 Pa.Super. 120, 451 A.2d 451, 454 (1982) (quoting with approval from Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 235, 348 A.2d 734, 739 (1975) on remand, 241 Pa.Super. 192, 360 A.2d 681 (1976)).
“Trial courts are vested with broad discretion in determining definition of the class as based on commonality of the issues and the propriety of maintaining the action on behalf of the class.” Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1975). Accord, Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 342-43, 431 A.2d 883, 886 (1981); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa.Super. 219, 225-26 n. 4, 438 A.2d 616, 619 n. 4 (1981). Accordingly, the lower court’s order granting or denying class certification will not be disturbed on appeal unless the court neglected to consider the requirements of the rules or abused its discretion in applying them. See Janicik v. Prudential Insurance Co. of America, supra; Sharkus v. Blue Cross of Greater Philadelphia, supra; Klemow v. Time, Inc., supra; Bell v. Beneficial Consumer Discount Co., supra. See also Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1050 (5th Cir.1981).

Id., 347 Pa.Superior Ct. at 448-49, 500 A.2d at 1140-41.

Applying this standard of review to the instant case, we cannot say that the trial court either failed to consider the requirements of the rules or abused its discretion in applying them.

Pennsylvania Rule of Civil Procedure 1708 states in relevant part:

In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth in subdivisions (a), (b) and (c).
(a) Where monetary recovery alone is sought, the court shall consider
(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues.

The trial court, in considering the Saunders case in light of Pa.R.C.P. 1708(a)(4), stated:

Although the Saunders class action was commenced well after the Nye action, its class has already been certified and over 800 claims have been settled with approval of the supervising court (N.T. Aug 16, 1984, hearing at 6, 9-10). The Saunders class action completely encompasses the presently-proposed Nye class and in fact goes further by including non-wage earners. In view of that fact it would be duplicative and wasteful of precious judicial resources for us to certify another class of Erie insureds. It would also put defendant to a burdensome and unnecessary expense. We accordingly will not certify the class.

Opinion, 9/11/84 at 7 (footnotes omitted).

The allegations of specific differences between the Nye and Saunders actions include 1) the date of the complaints, 2) the relief requested, 3) the makeup of the class, and 4) the individual settlement techniques employed. Addressing first the difference in the date of filing for the respective complaints, we conclude, as did the trial court, that the fact that the instant case was filed before the Saunders case is of no moment. The critical factor here is that the Saunders class had been certified first. We perceive no abuse of discretion on the part of the trial court for not certifying the Nye class in spite of the different filing dates of the Nye and Saunders complaints.

Next, Appellant suggests that the class in the instant case should have been certified because of the alleged difference in the relief requested. We find no error here, since we can discern no substantial difference in the respective prayers for relief. While we are aware that the relief requested in the Saunders case does not explicitly include interest, we note that in paragraph (b) of the ad damnum clause to the Saunders complaint, a prayer is made for all “appropriate sums due and owing.” Exhibit C to Appellants’ Brief. In our view, interest was properly claimed in the Saunders complaint even though not expressly requested.

Turning to the alleged differences in the make up of the class, we note that the Saunders complaint originally only covered estates where decedents had died subsequent to February 25, 1979 while the Nye complaint went back to November 15, 1977. However, the class in the Saunders case was redefined on June 21, 1984 to correspond with the original Nye complaint. Appellants argue that the make up of the class in Nye is broader than the class in Saunders because Appellants petitioned to amend their complaint on August 18, 1984 in order to include survivors and estates denied work-loss benefits as early as November 15, 1975. Since the trial court has not disposed of that petition, the make up of the class in Nye is identical to the make up of the class in Saunders. We are not prepared to anticipate favorable trial court action on the petition in order to find a difference in the make up of the respective classes. This is especially true in light of the trial court’s dicta set forth in footnote 6 to its September 11,1984 opinion. That footnote states:

The Saunders class originally encompassed a class dating back only to February 25, 1979; however, it was later expanded to include decedents’ estates dating back to November 16, 1977, recognizing that our Nye action tolled the statute of limitations for those insureds. Furthermore, Judge Silvestri, in ordering that expansion, did not limit it to the Nye class of previously-employed decedents but included non-wage earners as well. Thus, all of the Nye class is included.
We do note that shortly before this hearing plaintiff Nye petitioned this court to broaden his class through an amended complaint, so that it not only includes non-wage earners but also covers a period going back four yeárs from the date the original complaint was filed. That issue is not presently before this court. We nonetheless note that even if we had certified a class today we would not have later granted any amendment. To permit such an amendment would have impermissibly resuscitated stale claims.

Additionally, Appellant complains about the manner in which settlements are being handled in the Saunders case and suggests that some of those settlements are unfair. These complaints should be brought to the attention of the trial court in Saunders. It is not appropriate for us to be reviewing actions in a case which is not before us. To have certified this action when the instant plaintiffs were already part of the Saunders class could have resulted in a collateral attack upon orders which had approved individual settlements reached in Allegheny County. The proper procedure for challenging such individual settlements would be to petition the Allegheny County Court to open these settlements. Clearly the trial court did not abuse its discretion by not certifying the class in the instant case.

Finally, Appellants argue in the alternative that the trial court should have granted intervention to the proposed intervenors and then transferred this case to Allegheny County for consolidation with the Saunders case. We disagree.

Pennsylvania Rule of Civil Procedure 2329 provides, in relevant part:

Rule 2329. Action of Court on Petition
Upon the filing of the petition and hearing, of which due notice shall be given to all parties, the court, if the allegations of the petition have been established and are found to be sufficient, shall enter an order allowing interventions; but an application for intervention may be refused, if
(2) the interest of the petitioner is already adequately represented; or
(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the right of the parties.

In the instant case, several of the potential intervenors were representatives of decedents insured by carriers other than Erie. Since those petitioners no longer have standing in this case based on the supreme court’s 1983 decision in Nye v. Erie Insurance Exchange, supra, they clearly have no sufficient basis to intervene. For those potential intervenors represented by Erie, we find no abuse of the trial court’s discretion in denying intervention. The instant petitions to intervene were filed in the spring of 1984, over four years after the initial complaint was filed. Our supreme court has said that “[t]he question of timeliness of the intervention is one singularly within the periphery of the trial judge’s discretionary domain.” Templeton Appeal, 399 Pa. 10, 17, 159 A.2d 725, 730 (1960). The trial court concluded that these petitions, if granted, would have unduly prejudiced the action and the right of the parties and we see no reason to disturb this exercise of discretion. See Lewis v. Pine Township, 27 Pa.Commw. 574, 367 A.2d 742 (1976).

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984; 40 P.S. § 1009.101 et seq.

      . An order denying class certification is a final and appealable order. McConnell v. Commonwealth Dept. of Revenue, 503 Pa. 322, 469 A.2d 574 (1983).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    503 A.2d 959
    COMMONWEALTH of Pennsylvania, Appellee, v. Larry CAIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Jan. 17, 1986.

      John M. Glace, Assistant Public Defender, Harrisburg, for appellant.
    Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before CAVANAUGH, CERCONE and LIPEZ, JJ.
   CAVANAUGH, Judge:

On February 7, 1984, appellant, Larry S. Cain, was convicted of murder of the first degree in connection with the stabbing death of Mr. Louis Bean and was sentenced to life imprisonment. Appellant was tried before the Honorable Warren G. Morgan, sitting without a jury. On appeal, as at trial, appellant concedes that he was the perpetrator of the act which caused Mr. Bean’s death but maintains that the evidence was insufficient to support a verdict of first degree murder because he was acting under a “diminished capacity” which negated the specific intent required for a conviction of that offense. In the alternative, he contends that the court erred in not finding him “guilty but mentally ill” under 18 Pa.C.S. § 314.

The facts pertinent to these contentions are as follows. At three o’clock in the morning on Sunday, October 23, 1983, the desk clerk at the Warner Hotel in Harrisburg answered a call from a resident complaining about loud noise coming from a radio or stereo in room 302. 302 was appellant’s room. The clerk phoned appellant and instructed him to lower the volume. Nevertheless, at 3:30 the clerk received a second call lodging the same complaint. This time, the clerk attempted to speak with appellant in person but appellant did not answer his door. The clerk then phoned appellant’s room. Still there was no answer. Several minutes later, appellant came down to the front desk. When the clerk again told him he had to lower the noise level, appellant became very belligerent, insulted the clerk, pulled a knife on him, and threatened to kill him if the clerk “didn’t get off his tail.” When appellant, who “kept yelling and screaming”, went to a, window and sat down, the clerk phoned the police. Upon their arrival, appellant did not behave in nearly so agitated a manner as he had with the clerk. The clerk refused to file a complaint at that time because his manager was not present to lend his consent. The police told appellant to return to his room. (Appellant was subsequently found guilty of simple assault in connection with this incident.) Ten minutes later, the police having departed, appellant returned to the front desk and told the clerk he would not get away with what he had done. He stormed out the door and headed across the street to the Olympian Grill restaurant. There, he encountered Louis Bean.

Bean, a patron, was sitting alone when appellant approached him and asked if Bean would buy him some coffee. Appellant had apparently known Bean only casually. Bean bought appellant a cup 'of coffee, but then repeatedly attempted to move away from him. Every time he moved, appellant followed. Bean went to pay his bill and, with appellant right behind him, removed a large sum of cash from his pockets. When Bean left the restaurant, appellant followed right behind him. Bean and his unwanted companion disappeared into the night.

All that subsequently transpired between the two men is not certain. However, at 5:06 A.M., a “bag lady” alerted a police officer of a problem on Court Street near Walnut. There, in a pre-dawn autumn rain, Officer Lee G. Cooper discovered the lifeless body of Louis Bean lying face down near a pool of blood. He had been stabbed to death by appellant. Thirteen different stab wounds, among other wounds, were found on the body. A can of mace was discovered under the body, and a set of keys was found at the scene. When the police later charged appellant in Bean’s death and searched his room at the hotel, they detected the strong odor of mace emanating from a hat described by the investigating officer as an “apple” hat. A waitress at the Olympian Grill testified that appellant was wearing a hat which she described as an “apple” cap not long before the stabbing. Several pieces of appellant’s clothing were stained with blood that matched the victim’s blood type. Moreover, the keys found at the scene were appellant’s. There was no evidence that Bean had been robbed.

Word of the tragedy spread that Sunday. Late in the afternoon, Chris Wright was dining at the Olympian Grill and conversing with the waitresses. He happened to mention the stabbing. Unbeknownst to Mr. Wright, the perpetrator of the stabbing was pacing behind him within earshot. Upon hearing Wright’s remark, appellant became very agitated. Appellant announced to Wright, whom he had never met, that he did not like him. Mr. Wright glanced at appellant and to}d him he was not “too crazy about” him, either. After Wright turned back to the waitresses, appellant approached him from behind. One of the waitresses told Wright that appellant had a knife. She handed Wright a knife and fork and he turned to face appellant. Wielding the knife, Wright prepared for a confrontation. While appellant and Wright argued, the waitress phoned the police. Apparently due either to Wright’s confrontational behavior or the call to the police, appellant left the restaurant and headed across the street to the Warner Hotel. After interviewing Mr. Wright at the Grill, the police found the appellant at the hotel. He was taken into custody and charged with harassment. • (He was subsequently found guilty of this charge!) While in custody, he also became a suspect in Mr. Bean’s death and was subsequently charged for it.

I. APPELLANT CONTENDS THAT DIMINISHED CAPACITY NEGATED THE SPECIFIC INTENT REQUIRED FOR MURDER OF THE FIRST DEGREE.

Appellant challenges his conviction of murder of the first degree because, he alleges, the Commonwealth failed to prove one of the crime’s elements, specific intent, beyond a reasonable doubt. Murder of the first degree is defined by statute as follows:

“A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” 18 Pa.C.S. § 2502(a).

“Intentional killing” is defined as:

“Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d).

Appellant contends that because he was acting under a “diminished capacity” he lacked the specific intent to kill required for a conviction under the statute.

In pleading “diminished capacity”, appellant concedes general criminal liability, Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984), and seeks a conviction of murder of the third degree.

“All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.” 18 Pa.C.S. § 2502(c).

“Specific intent to kill” is the mens rea required for first degree murder. The Commonwealth is obligated to prove premeditation and deliberation beyond a reasonable doubt to obtain a conviction. Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Walzack, supra; Commonwealth v. Kenny, 326 Pa.Super. 425, 474 A.2d 313 (1984). Specific intent to kill may be proven by the same common sense process of drawing inferences from the surrounding circumstances as is employed in any number of other areas of the law. “It is well settled that specific intent to kill, as well as malice, may be inferred from the use of a deadly weapon upon a vital part of the victim’s body.” Commonwealth v. Gardner, 490 Pa. 421, 425, 416 A.2d 1007, 1008 (1980). “This intent may be inferred from statements made by the accused and also from attendant circumstances.” Commonwealth v. Davis, 331 Pa.Super. 59, 62, 479 A.2d 1077, 1079 (1984). When a defendant alleges diminished capacity, however, he attempts to demonstrate that although the surrounding circumstances may lead the trier of fact to infer that he acted with specific intent, his psychological make-up in fact prevented the formation of specific intent in the particular instance.

The defense of diminished capacity is, however, a limited one and our courts have explicitly stated that psychiatric evidence in support thereof may be admitted only if it tends to prove that appellant did not premeditate or deliberate in committing the murder. Commonwealth v. Weinstein, supra. In Commonwealth v. Weinstein, the psychiatric testimony only addressed the defendant’s alleged uncontrollable sexual urge to strangle his victim.

“[Defendant's expert was unable to speak to the issue of specific intent, recognizable by the law, and was unable to logically relate defendant’s underlying disease or mental defect to his uncontrollable act. Defendant was clearly able to formulate and carry out a plan or design. He carefully arranged the victim’s presence at his place of business, the victim’s drugged helplessness and the presence of an accomplice, whom he asked to kill the victim, before he began the climactic act of strangulation he claims he could not control. By his own admission he arranged disposition of the body” [and] fled to escape punishment____ Commonwealth v. Weinstein, 499 Pa. at 118-19, 451 A.2d at 1350.

In the instant case, a defense witness, psychiatrist Dr. Edward Russek, M.D., had examined appellant numberous times and testified that appellant suffered from the psychosis of schizophrenia, a disorder of thinking. During its active phase, it is characterized by marked mental confusion, illogical thinking, delusions, and hallucinations. Moreover, appellant suffered from persecutory delusions and grandiose thinking which placed him in the paranoid subtype of schizophrenia. Appellant also suffered from a personality disorder, marked by anti-social, explosive, and highly assaultive behavior. Two letters written by another psychiatrist, Dr. Robert L. Sadoff, M.D., were proffered by the defense and admitted into evidence. The Commonwealth agreed to the admission of the letters without the appearance of the witness but did not subscribe to the content of the testimony. Dr. Sadoff had also examined appellant and his diagnosis was also chronic paranoid schizophrenia. Dr. Sadoff concluded that although appellant was mentally ill at the time of the stabbing, he appeared to know what he was doing and knew that it was wrong. The Commonwealth did not offer any expert psychiatric or psychological testimony in support of its position. However, nine lay witnesses were called to testify by the prosecutor. It is well settled in this Commonwealth that in seeking to discern the mental state of one accused of a killing, the trier of fact may hear the testimony of lay witnesses. Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976). Those who have interacted with an accused near the time of the incident for which he is charged, those who have known him, or who frequently cross paths with him are surely qualified to testify as to his behavior as they have observed it.

Appellant argues that he suffered from a mental illness of a long-standing nature which prevented the formation of the premeditation and deliberation required for a conviction of first degree murder. He contends that paranoid chronic schizophrenia, the mental illness which afflicted him, completely disrupted his ability to correctly interpret reality, thus making deliberation and premeditation impossible. Dr. Russek testified that, although possible, it was very unlikely that appellant’s psychosis was under control at the time of the stabbing. Dr. Sadoff also concluded that appellant was mentally ill at the time of the stabbing.

Appellant contends that the evidence was insufficient to support a conviction of first degree murder. The well-settled test of insufficiency is whether, accepting as true all the evidence and' reasonable inferences therefrom upon which if believed could support a conviction, it is sufficient to prove beyond a reasonable doubt that the defendant is guilty of the crimes for which he was convicted. Commonwealth v. Kenny, supra. Looking at the evidence in the light most favorable to the Commonwealth, we do not believe that the trial court erred in concluding that appellant did not act with diminished capacity. In Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), and Commonwealth v. Kenny, 326 Pa.Super. 425, 474 A.2d 313 (1984), defendant attempted to show diminished capacity but the evidence proferred instead tended to prove only irresistible impulse, which Pennsylvania has rejected as a test to show diminished capacity. Commonwealth v. Weinstein, supra. In the instant case, appellant’s evidence at trial showed that he felt compelled to respond to his irrational and bizarre thoughts. In Commonwealth v. Walzack, supra, Justice (now Chief Justice) Nix wrote:

“The doctrines of diminished capacity and irresistible impulse involve entirely distinct considerations. Irresistible impulse is a test which is broader than the M’Naghten test. Under the irresistible impulse test a person may avoid criminal responsibility even though he is capable of distinguishing between right and wrong, and is fully aware of the nature and quality of his act, provided he establishes that he was unable to refrain from acting.”

Commonwealth v. Walzack, 468 Pa. at 220-21, 360 A.2d at 919. Dr. Russek also testified that appellant had suffered from an antisocial hybrid-personality disorder. “Personality disorders such as a diagnosed schizoid personality are irrelevant to a finding of first degree murder.” Commonwealth v. Davis, 331 Pa.Super. at 64-5, 479 A.2d at 1080.

Our criminal law is based largely on the notion that those who breach the social contract must assume responsibility for their actions. Justice Hutchinson, writing for the majority in Commonwealth v. Weinstein, supra, contrasted the psychiatric notion of determinism, upon which the notion of irresistible impulse is based, with the premise upon which our law is based — that people have the ability to choose right over wrong.

As a matter of syllogistic logic one might consider irresistible impulse as valid a talisman for the determination of criminal intent as the ability to distinguish right from wrong. The refusal of jurisdictions such as Pennsylvania to accept it is based not on such logic, but on policy. Within the determinist assumptions of a large and influential school of psychiatry, the negation of intent is an entirely logical corolloary. The assumptions of the law — rationality, free will and choice — are otherwise, and within its system the application of irresistible impulse to determine sanity poses deeply troubling conradictions. The attempt to use it all too often finds the legal and medical professions talking at each other about different concepts designed for different purposes.

The law, in its effort to shape a rational social policy, grounded in the broadly shared assumptions of the individuals who make up society, cannot admit that acts an individual carefully plans and carries out to advance his own desire, when he knows those acts will result in the death of another human being, will not be punished simply because of the intensity or strangeness of that desire. Such an admission proceeds imperceptibly to the absurd result that the more strange and brutal the act the more likely the actor is to be relieved of its criminal consequences. Commonwealth v. Weinstein, 499 Pa. at 116-17, 451 A.2d at 1349 (footnotes omitted).

As one eminent legal scholar-jurist wrote:

[TJheory and fact agree in frequently punishing those who have been guilty of no moral wrong____
The true explanation of the rule [that ignorance of the law is no excuse for breaking it] is the same as that which accounts for the law’s indifference to a man’s particular temperament, faculties, and so forth. Public policy sacrifices the individual to the general good. It is desirable that the burden of all should be equal, but it is still more desirable to put an end to robbery and murder — [Liability to punishment cannot be finally and absolutely determined by considering the personal unworthiness of the criminal alone. That consideration will govern only so far as the public welfare permits or demands ____ [T]he actual degree of personal guilt involved in any particular transgression cannot be the only element, if it is an element at all, in the liability incurred.
It is not intended to deny that criminal liability, as well as civil, is founded on blameworthiness. Such a denial would shock the moral sense of any civilized community, or, to put it another way, a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear. It is only intended to point out that, when we are dealing with that part of the law which aims more directly than any other at establishing standards of conduct, we should expect more than elsewhere to find that the tests of liability are external, and independent of the degree of evil in the particular person’s motives or intentions ____ [The standards to which conformity is required] take no account of incapacities, unless the weakness is so marked as to fall into well-known exceptions, such as infancy or madness____ If they fall on any one class harder than on another, it is the weakest. For it is precisely to those who are most likely to err by temperament, ignorance, or folly, that the threats of the law are most dangerous.

O.W. Holmes, The Common Law 38-43 (1881, M. Howe ed.).

For purposes of specific intent to kill, our inquiry is not to learn what prompted the bizarre thoughts which caused the tragic action. It matters only that the accused was able to formulate a plan and carry it out. In the instant case, appellant argues that he felt compelled to act on his distorted and irrational thinking. In effect, he contends that he lacked the freedom to choose right over wrong. Our law will not accept such an argument to negate specific intent. That the perpetrator’s thought processes be deranged or even demonic is to no avail against the narrow standard which our law requires him to meet before we can say that the lower court erred in failing to find diminished capacity. The law imputes freedom of choice to all, save only a limited class of mentally infirm persons who fit very specific criteria. The very fabric of society would soon unravel were we to apply a different norm for all the various shades of mental composition.

Appellant contends, however, that his mental illness was of such a severe nature, and that his thinking was so irrational, that he was not able to premeditate or deliberate. He cites Dr. Russek’s testimony:

Q. Was the pre-existent mental illness greater than a lack of self-control, impulsiveness, psychoneurosis, or emotional instability?
A. Yes to all of those.

If this is meant to imply that appellant did not know what he was doing because of his distorted thinking, this assertion is not supported by Dr. Sadoff s letter, proferred by the defense, that appellant appeared to know what he was doing and knew that it was wrong. Appellant further cites the fact that the brutal murder was motiveless which was not the case, he claims, in Zettlemoyer, supra, and Weinstein, supra, thus indicating greater mental disturbance here. However, Justice Hutchinson has succinctly stated: “Psychiatrists often object to the legal concept of specific intent as a naive oversimplification. They may be unable, or unwilling, to accept the legal rule that although intent is essential, motive is irrelevant.” Commonwealth v. Weinstein, 499 Pa. at 117 n. 5, 451 A.2d at 1349 n. 5. Moreover, appellant alleges that he hallucinated while in the active phase of the illness. Those hallucinations, according to Dr. Russek, may or may not have been noticeable to lay persons. We fail to see that these alleged hallucinations aid appellant’s argument in light of Dr. Sadoff’s assertion that appellant appeared to know what he was doing. Neither does the lay witness testimony aid him. The desk clerk at the Warner Hotel testified that in the time he knew appellant, he did not appear to be walking around and talking to people who were not really there. Joyce Ann Kauffman, a waitress at the Olympian Grill who served both appellant and his victim shortly before the stabbing, testified that appellant was a regular customer, appeared to be normal, and did not appear to be talking to people who were not really there. Officer Rodney Henninger, who arrested appellant on the harassment charge (after the late afternoon incident at the Olympian Grill with Chris Wright), also testified that appellant behaved in a normal manner and did not appear to be talking to people who were not really there. Michelle Torres, another waitress at the Olympian Grill who was working at the time appellant harassed Chris Wright also testified that appellant was a regular and never appeared to be talking to people who were not really there. Nor did he ever talk “nonsense.” Detective Richard E. Shultz, who interviewed appellant after he had been taken into custody following the harrassment incident, also did not notice appellant behaving as if he were hearing voices. Pat Morris, a supervisor at a school of cosmetology testified that appellant was a student at the school at the time of the incident. She stated that she could remember no bizarre behavior on his part. Moreover, Ms. Morris testified that she was in contact with appellant on Saturday, October 22, 1983, the day before the stabbing, but noticed nothing unusual about him. Morris testified that on Friday, October 21, appellant answered questions posed to him by the school. Here are the questions and his written answers, as testified to by Ms. Morris:

“The first question was: ‘What are* your goals in cosmetology?
And his answer: ‘Goals. My goal is to own my own black cosmetic firm.’
The second question: ‘What are your needs in life?’ His answer: ‘Food, shelter, money.’
My third question was: ‘What are your wants in life?’ And his answer was: ‘Recognition, fame, someone to love me, money.’
The fourth question was: 'What do you expect from [the school]?’
His answer was: ‘A certificate of completion and to pass state board.’ ”

Defense witness, Dr. Russek, was asked:

“Q. Now, it is my understanding that a day or two, several days before [appellant] was arrested, that he took a test at a [cosmetology] school. Could a person who was actively psychotic with schizophrenia be capable to knowing his name and taking a test, a specific test for specific questions?
A. He could. It would be a question of relative severity of the disorder. Someone who is continually bombarded with delusional thinking of people talking to him or people being out to get him could be so contaminated with those thoughts that he may not be able to function mentally in a way to take a test. But someone who is not as severely bombarded by those thoughts could probably take a test.”

Although it seems that the above question to Russek concerned a test other than the “goals” sheet, it also seems clear, by looking at the appellant’s answeres to the questions posed to him in the “goals” sheet just two days before the stabbing, that he was “not as severely bombarded by” or “contaminated with” delusional thinking as would be a more severely psychotic person. While it is unquestioned that appellant displayed bizarre and illogical behavior and that his problems were of a long-standing nature, we do not believe that the lower court abused its discretion in finding that appellant was able to premeditate and deliberate at the time of the tragic incident.

Because we find that the lower court did not err in concluding that appellant did not act with diminished capacity, his specific intent to kill may be inferred from the surrounding circumstances, including the use of a deadly weapon upon a vital part of the body. See Commonwealth v. Gardner, supra. As the Honorable Warren G. Morgan described it: “The killing itself was brutal and clearly not a chance infliction of a single wound. The victim .was repeatedly stabbed, suffering a total of thirteen wounds — six of which were in his back. Two of the stab wounds affected internal organs.” Lower court opinion at 5-6. This is sufficient to show the requisite intent beyond a reasonable doubt.

II. APPELLANT CONTENDS THAT HE WAS GUILTY BUT MENTALLY ILL.

Appellant alleges that the lower court erred in not finding him guilty but mentally ill under 18 Pa.C.S. § 314.

(a) General rule. — A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.
(c) Definitions. — For the purposes of this section and 42 Pa.C.S. § 9727 (relating to disposition of persons found guilty but mentally ill):
(1) “Mentally ill.” One who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
(2) “Legal insanity.” At the time of the commission of the act, the defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong.
(d) Common law M’Naghten’s Rule preserved. — Nothing in this section shall be deemed to repeal or otherwise abrogate the common law defense of insanity (M’Naghten’s Rule) in effect in this Commonwealth on the effective date of this section. 1982, Dec. 15, P.L. 1262, Ño. 286, § 1, effective in 90 days.

Until this statute became law in March of 1983, Pennsylvania jurisprudence applied only the all-or-nothing M’Naghten Rule to those who claimed insanity as a defense to a crime. See 18 Pa.C.S. § 314(d) and (c)(2), supra. Under the insanity defense, “the defendant is either mad or bad. He should receive either treatment or punishment.” Comment, Insanity-Guilty But Mentally III — Diminished Capacity: An Aggregate Approach to Madness, 12 J.MarJ.Prac. & Proc. 351, 353 (1979). However, this standard ignores reality.

“[T]he possible shades of difference between theoretical mental perfection and theoretical total absence of mind are not two or five or a dozen — but infinity. At what point in this unperceptible shading from one extreme to the other does the dividing line between sanity and insanity appear? As ably said in a case involving testamentary capacity:
“ ‘There is no difficulty in the case of a raving madman or of a drivelling idiot, in saying that he is not a person capable of disposing of his property. But between such an extreme case and that of a man of perfectly sound and vigorous understanding, there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.’ ”

R.M. Perkins & R.N. Boyce, Criminal Law 953 (3d ed. 1982) (citing Boyse v. Rossborough, 6 H.L.Cas. 2, 45, 10 Eng.Rep. 1192, 1210 (1857)).

The suggested jury instruction for the standard includes the following points:

5.01A (Crim) Insanity (covers statutory amendments through Act No. 286 (1982)).
(1) Because the defendant has asserted an insanity defense, you will have to consider four possible verdicts. In addition to “guilty” and “not guilty” which are available verdicts in any criminal case, you will have to think about the special alternatives of “not guilty by reason of legal insanity” and of “guilty but mentally ill.” (If you keep in mind why the law permits these two special verdicts it may help you understand my subsequent instructions. The verdict of not guilty by reason of legal insanity labels a defendant as sick rather than bad. It signifies that in the eyes of the law the person, because of mental abnormality at the time of the crime, does not deserve to be blamed and treated as a criminal for what he did. The verdict of guilty but mentally ill labels a defendant as both bad and sick. It means that in the law’s eyes that person, at the time of the crime, was not so mentally abnormal as to be relieved from blame and criminal punishment for what he did but that he was abnormal enough to make him a prime candidate for special therapeutic treatment.)
[(7) Comparing the definitions of “legal insanity” and “mental illness” we can see that they both require a mental disease or defect which is something more than faulty character, temperament or social adjustment. Their definitions differ, however, with regard to the incapacitating effect necessary for legal insanity on the one hand or mental illness on the other. Legal insanity requires that the defendant be incapable either of knowing what he is doing or of judging its wrongfulness. Mental illness requires only that the defendant lack substantial capacity either to appreciate the wrongfulness of what he is doing or to obey the law. Loosely speaking, mental illness is the broader term. It covers a greater range of abnormal conditions than legal insanity. A final difference lies in the degree of proof. Legal insanity must be proven by a preponderance of the evidence, while mental illness must be proven beyond a reasonable doubt.]
(8) In determining the questions of legal insanity and mental illness you should consider all the relevant evidence including (the testimony of witnesses regarding the acts, words, conversations, behavior and appearance of the defendant at, and close to, the time of the alleged crime) (the testimony of the expert witnesses) (the testimony of ordinary witnesses concerning the defendant’s general mental condition) (_). The critical time when legal insanity or mental illness must exist in order to affect the verdict is at the time when the alleged criminal act was committed. Although you may consider evidence of the defendant’s mental condition before and after that time you may consider it only to help you determine his mental condition (and state of mind) at the time of the alleged crime.

A. Murphy, Legally Insane or Guilty But Mentally III: A Suggested Jury Instruction, 88 Dickinson L.Rev. 344, 347-49 (1984).

Professor Arthur Murphy, reporter to the criminal instructions subcommittee of the Pennsylvania Supreme Court’s Committee for Proposed Standard Jury Instructions, has described the difference in the effects of a finding of “insanity” as opposed to a finding of “guilty but mentally ill.”

“A verdict of ‘not guilty by reason of legal insanity’ may trigger, while a verdict of ‘guilty but mentally ill’ will trigger, proceedings under the Mental Health Procedures Act. [50 Pa.C.S. §§ 7101-7503.] The court, after a hearing, determines whether the defendant is severely mentally disabled and in need of treatment at that present time. The defendant’s potential dangerousness to other persons is highly relevent to this determination [50 Pa.C.S. § 7301.] When a person has been acquitted on the ground of legal insanity, the proceedings may result in an involuntary civil commitment to a mental health facility. [50 Pa.C.S. § 7304(a)(i).] In the case of an individual found guilty but mentally ill, the process may lead to involuntary treatment of the convict in a prison or in a hospital setting. [42 Pa.C.S. § 9727(b)(i).]”

A. Murphy, Legally Insane or Guilty But Mentally III: A Suggested Jury Instruction, 88 Dickinson L.Rev. 344 (1984).

The “guilty but mentally ill” standard also has an allure for those who hold the insanity defense in disfavor.

“For those who advocate abolishing the insanity defense, the statute provides an alternative verdict which is a step toward abolition without running afoul of the constitutional prohibitions that currently surround that goal.”

Comment, Guilty But Mentally III: A Reasonable Compromise for Pennsylvania, 85 Dickinson L.Rev. 295, 307 (1980-81). As one Pennsylvania House member stated pri- or to the bill’s passage:

“Those who are less mentally afflicted and attempt to use the insanity defense may attempt to confuse a jury or a finder of fact and convince them that they are innocent by reason of insanity. The finding permitted under this legislation gives the finder of fact the ability to find such an individual guilty but also provide him with the necessary mental health treatment____”

PENNSYLVANIA HOUSE LEGISLATIVE JOURNAL 2132 (Nov. 29, 1982) (comments of House Member Jeffrey E. Piccola of Dauphin County in support of the passage of the Conference Committee Report.)

“The primary functions of a finding of ‘guilty but mentally ill’ are to avoid unwarranted insanity acquittals by allowing juries to express a conclusion that the defendant, although guilty, was impaired at the time of the crime and to set in motion a judicial inquiry into the accused’s present condition.”

A. Murphy, Legally Insane or Guilty but Mentally III: A Suggested Jury Instruction, 88 Dickinson L.Rev. 344, 347 (1984).

In short, the “guilty but mentally ill” alternative is merely a statutory articulation of the natural desire to hold responsible those who breach the social contract while at the same time providing for the humane treatment of their mental infirmities.

Turning to the instant case, appellant alleges that at the time of the stabbing he lacked the substantial capacity to appreciate the wrongfulness of his conduct or to conform to the requirements of the law. As for lacking the substantial capacity to appreciate the wrongfulness of his conduct, at trial, the appellant presented two letters from psychiatrist Dr. Sadoff, who had examined him. Sadoff stated that appellant appeared to have known what he was doing and knew that it was wrong. Our review of the record reveals no testimony from defense witness Dr. Russek that appellant did not know that the stabbing was wrong. Dr. Sadoff wrote that although appellant did not believe that his action in stabbing Mr. Bean caused his death, he expressed sorrow for it and wished that it had not happened. We conclude that appellant has failed to prove that he lacked substantial capacity to appreciate the wrongfulness of his conduct.

As for the other prong of the definition of “mentally ill” under the statute, that appellant lacked the substantial capacity to conform his conduct to the requirements of the law, appellant cites the following in support of this: Both Dr. Russek and Dr. Sadoff believed that appellant was psychotic at the time of the stabbing. Dr. Russek testified that appellant was “not able to cope with the normal daily tasks of getting along in society and getting along with other people.” Moreover, appellant’s delusional thinking and paranoid characteristics rendered him unable to control his behavior. The hotel desk clerk described appellant’s behavior in connection with the simple assault as “atypical” and “surprising.” Waitress Michelle Torres and patron Chris Wright testified to appellant’s unprovoked and menacing behavior when he harassed Wright by pulling a knife on him later in the day of the stabbing. Furthermore, appellant made the totally delusional assertion to Dr. Sadoff that another man had actually killed Mr. Bean.

Appellant clearly suffered from psychological problems. Indeed, he did not cope well with the daily task of getting along in society. Were this the criteria for “mental illness”, however, we would suppose that a significant proportion of those engaging in criminal misconduct could be so classified. The statutory definition seems to us to be much narrower. The question is whether appellant lacked the substantial capacity to conform to the requirements of the law. Despite the defense testimony that appellant felt compelled to act on his delusions, we find that the lower court did not abuse its discretion in holding that appellant possessed the substantial capacity to conform to the law’s requirements. Appellant exhibited the ability to conform to rules and social norms despite his serious lapses into bizarre and uncivilized behavior. The desk clerk at the hotel .testified- that after appellant had pulled a knife on him and the police were summoned, appellant acted “normal” in their presence. “He talked very nice to the police.” Officer Henninger testified that after the incident in which the appellant pulled a knife on Chris Wright, Henninger found appellant at the hotel where he agreed to a patdown for weapons. Appellant did not act in an abnormal or uncooperative way, except that he refused to allow Henninger to enter his room to obtain identification. This may have been because incriminating evidence from the murder was stashed about the room. Pat Morris, a supervisor at the Cosmetology school which appellant attended, testified as follows:

Q. When [appellant] came to [the Cosmetology school], was he able to conform his behavior with the requirements of the school?
A. Yes.
Q. Was he able to take directions?
A. Yes.
Q. When he socialized with other students, did he appear to be manipulative? In other words, he wanted to have an upper hand on other people?
A. No, really, no.

Moreover, there was much testimony from lay witnesses that the appellant did not appear to be talking to imaginary people around the time of the stabbing. See our discussion of diminished capacity argument, supra. On the Friday before the Sunday stabbing, appellant was able to answer questions at the school he attended in a coherent and logical manner. See our discussion of diminished capacity, supra. It is possible that appellant’s schizophrenia was not in its “active phase” on the day of the stabbing. While Dr. Russek testified that it was in its active phase two days later when he first interviewed him, this may be accounted. for by the stress associated with incarceration and being charged with a homicide. Dr. Russek testified that it is very unlikely, although possible, that appellant’s psychosis was under control at the time of the stabbing.

It seems clear, however, that the court, as trier of fact in this case, was persuaded that the testimony of the lay witnesses offered an accurate reading of appellant’s mental state. The desk clerk at the Warner Hotel, whom the appellant had threatened with a knife prior to the stabbing, testified on cross examination that appellant’s behavior at the preliminary hearing, which was held some eight days after his arrest, was disruptive and similar to the behavior he exhibited on the night of the stabbing. It was the desk clerk’s opinion that appellant’s behavior at the hearing was fabricated. Detective Shultz, who interviewed appellant after he had been taken into custody late in the day of the stabbing, testified as follows:

Q. Was there anything unusual in his behavior that sticks out in your mind?
A. No.
Q. Did he appear as though he was hearing voices or was he talking to people who were not present?
A. No.

However, when asked about appellant’s behavior at the preliminary hearing, he stated:

There was a marked difference in the way he acted the day of the preliminary hearing as to the way he acted on Sunday, October 23 when I first interviewed him ____

Of course, appellant’s bizarre and nonconformist behavior is evidence of psychological infirmity. The factfinder need not, however, conclude that appellant lacked the substantial capacity to conform his conduct to the requirements of the law merely because he failed to abide by it. We find the evidence sufficient to support the finding that, beyond a reasonable doubt, appellant had the substantial capacity to conform his conduct to the requirements of the law.

We concede that, by necessity, the “guilty but mentally ill” law and the diminished capacity standard, like the insanity defense, place great burdens on the trier of fact. Unlike the “reasonable man” standard in negligence law which asks the factfinder to compare a defendant’s behavior with the usual or proper societal behavior, these ask the factfinder to look into the psyche of the defendant and discern its innermost workings. It is a most difficult assignment. As an appellate court with only the cold, lifeless record to guide us, we naturally defer to the trier of fact who heard the witness’ tone of voice, saw their facial expressions and presumably caught the trial’s subtleties— all of which may be lost in the written word. Our review of the record reveals that the testimony fully supports the court’s holding.

In order to sustain a conviction of first degree murder, and to hold that appellant was not “mentally ill”, the law does not require that we find appellant’s mental state to have been perfectly sound or that appellant acted with a completely free will. It may well be that that Law which is higher than ours holds appellant less than fully culpable because of his mental state. We conclude, however, that the law of this Commonwealth demands that appellant assume full responsibility for the tragic death of Louis Bean.

Judgment of sentence affirmed.

      . At trial, appellant was also convicted of simple assault and harassment for incidents which occurred before and after the murder respectively.

      . Although the appeal here concerns only the murder conviction, the facts related to the simple assault and harassment charges are presented to elucidate appellant’s mental state.

      . Our Supreme Court thoroughly discussed contentions similar to those made by appellant in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982). There, as in the instant case, the court discussed evidence of paranoid schizophrenia, anti-social personalty, and irresistible impulse.
      [Irrelevant to appellant’s ability to form the requisite mens rea for an intentional killing was the testimony of appellant’s grandmother ... and mother____ Basically, their testimony profiled appellant as a tempermental, spoiled, anti-social young man (appellant was 25 years old at the time of trial) who could not maintain a job or a relationship with women, and who seemed very depressed in the weeks preceding the shooting____ [Tjhis testimony sheds no light whatsoever on appellant’s mental capacity to premeditate, deliberate and form the specific intent to kill.
      Finally, the defense presented Dr. Schneider, a clinical psychologist____ Asked to give his “final diagnosis”, Dr. Schneider replied: "As a result of the testing, the interview and my conversations with family members, my diagnostic impression is that we have a schizoid personalty with paranoid features — well, paranoid and inadequate features."____ Dr. Schneider applied his psychological labels to appellant and rendered the following observations:
      “I also mentioned that Mr. Zettlemoyer is an inadequate person which essentially means that he was unable, as I indicated, to deal with the normal pressures, demands, responsibilities of daily living. He has never completed anything to my knowledge successfully, whether it be socially, personally or vocationally. He has failed and I believe that his reaction over this period of time resulted in, well, what I refer to as a pressure cooker syndrome, pressure mounting up. If you don’t have a release valve it will blow and that’s where I believe that the emotional disturbance, in addition to the personalty disorder, may have resulted in the behavior.

      "I find that Mr. Zettlemoyer is a pampered, doted upon, catered to, in simple terminology spoiled brat who figures out how to get what he wanted, either directly or by manipulating or controlling the situation to get what he wanted his entire life and I believe that faced with the number of stresses that he had to deal with that he could not cope with, and he decompensated____”
      It should be apparent from the foregoing summary of the "defense”, that the psychiatric/psychological testimony of Dr. Schneider falls well short of the objective quantum of reliability and relevance which this Court requires ... before such testimony will be deemed admissible on the issue of whether appellant had the mental capacity to form the specific intent to kill. Moreover, the "defense" offered in this case is simply an attempt to once again foist the “irresistible impulse” concept upon this Court under different nomenclature, an attempt which we have consistently rejected and will continue to resist.
      Thus, in this case as in Commonwealth v. Weinstein ... appellant’s "expert was unable to speak to the issue of specific intent, recognizable by the law, and was unable logically to relate [appellant's] underlying disease or mental defect to his uncontrollable act. [Appellant] was clearly able to formulate and carry out a plan or design." [499] Pa. at [118], 451 A.2d at 1350. Accordingly, the trial court did not err in refusing to allow Dr. Schneider to express his opinion as to whether appellant possessed sufficient mental capacity to form the specific intent to kill, especially in light of the fact that the psychologist had already testified extensively and the jury was in a position, under proper instructions, to draw its own conclusion as to this issue.

        Commonwealth v. Zettlemoyer, 500 Pa. at 31-35, 454 A.2d at 945-47 (footnotes omitted).

      . In his closing argument, the prosecutor stated that appellant’s evidence showed that he was compelled to act by irresistible impulse. Appellant argues that this contention was made without any supporting expert testimony to rebut defense counsel’s earlier contention that the irresistible impulse did not apply. We believe that the prosecutor’s remark was a fair one, based on the precedents cited herein. Moreover, no objection was made to the remarks and so the contention is nevertheless waived. Commonwealth v. Williams, 500 Pa. 226, 455 A.2d 632 (1983).


author: HOFFMAN, Judge:

text:
    503 A.2d 971
    Dorothy M. LaBUDA v. Joseph L. LaBUDA, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Jan. 28, 1986.

      Mark Malkames, Allentown, for appellant.
    Raymond J. DeRaymond, Easton, for appellee.
    Before SPAETH, President Judge, and HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of the lower court entered in accordance with the court’s order and accompanying memorandum opinion of February 25, 1985. The order provided, inter alia, for the equitable distribution of the parties’ marital property. For the following reasons, we vacate the judgment, affirm in part and reverse in part the court's order, and remand for further proceedings consistent with this opinion.

The parties married on February 1, 1947, (Master’s Report at 3), and separated on July 4, 1980, (id. at 14). On November 5, 1981, appellee wife filed a complaint in divorce. Appellant husband answered, and, on December 22, 1981, the lower court appointed a special master to hear testimony and file a report with recommendations concerning the following claims: marital dissolution, equitable apportionment of marital property, permanent alimony, and counsel fees and costs. See Pa.R.Civ.P. 1920.51(a)(1). Hearings were scheduled and held from June 4, 1982, to January 19, 1984. On September 14, 1984, the master filed his report. See generally id. 1920.53,1920.54. On September 24, 1984, both parties filed exceptions to the master’s report. See id. 1920.55(a). After making several corrections to the master’s report based on thé parties’ exceptions, the lower court decreased the total value of the marital estate from $233,758.10 to $204,758.10. The court did not, however, disturb the master’s recommended division of the marital property; appellee was awarded a fifty-five percent share of the marital estate, and, to the extent each party’s pension was marital property, each party was to share equally in the other’s pension. This appeal followed.

Appellant raises four issues challenging the lower court’s award. We will not upset the trial court’s equitable distribution award absent a clear abuse of discretion. Ruth v. Ruth, 316 Pa.Superior Ct. 282, 286, 462 A.2d 1351, 1353 (1983). Under this standard, we do not usurp the trial court’s duty as fact finder. Id., 316 Pa.Superior Ct. at 287, 462 A.2d at 1353. We do, however, “carefully scrutinize” each of the Divorce Code, 23 P.S. §§ 101-801, factors to be considered by a court when equitably distributing marital property, see id. § 401(d), in determining whether the court below abused its discretion. Ruth v. Ruth, supra, 316 Pa.Superior Ct. at 287, 462 A.2d at 1353. Furthermore, “an abuse of discretion will be found by this court if the trial court failed to follow proper legal procedures or misapplied the law.” Braderman v. Braderman, 339 Pa.Superior Ct. 185, 191, 488 A.2d 613, 615 (1985). With this standard of review in mind, we turn to appellant’s contentions.

I. The 50/50 “Starting Point”

Appellant first contends that the master, relying on Paul W. v. Margaret W., 130 P.L.J. 6 (Ct.C.P. Allegheny County 1981), erred in stating that, in equitably distributing the marital property, “the starting point for considering all relevant factors should be an equal division of [the] marital property.” (Master’s Report at 6). Appellant cites Ruth v. Ruth, supra, for the proposition that, in view of the factors set forth in 23 P.S. § 401(d), there is no need to resort to a “presumptive starting point.” We find that the master’s use of a 50/50 starting point was proper.

In Paul W. v. Margaret W., the court held that an equal division of the marital property was the “only appropriate starting point” for equitably distributing the marital property. Paul W. v. Margaret W., supra at 8. We are persuaded by the court’s rationale in adopting such a starting point. The court first noted that “there is no way to weigh the [§ 401(d) ] factors against each other without a starting point at which to begin the weighing process.” Id. In choosing an equal division of the marital property to be that starting point, the court noted the following: (1) if the § 401(d) factors favor neither party, any other distribution would not “insure a fair and just determination and settlement of [the parties’] property rights,” 23 P.S. § 102(a)(6); (2) because historically property jointly owned by the parties was divided equally and the Divorce Code gives each party an interest in property acquired during the marriage, see id. § 401(f), the Legislature must have intended that the martial property be divided equally when consideration of the § 401(d) factors did not result in a distribution in favor of one of the parties; and (3) this starting point is consistent with the notion of marriage “as a shared enterprise or joint undertaking in which both parties contribute to the acquisition and preservation of marital assets” and where “full recognition is to be given to non-economic contributions.” Paul W. v. Margaret W., supra at 8-9.

Appellant’s reliance on Ruth v. Ruth, supra, is misplaced. There, in discussing our abuse of discretion standard of review in equitable distribution cases, we stated that

we [would] not choose to follow presumptions in the hope of achieving the legislature’s goal of “economic justice.” At oral argument ... a suggestion was made by counsel for the parties that this Court adopt “guidelines” or establish “presumptions” to be applied in deciding issues involving property rights under the [Divorce] Code. In view of the legislative guidelines [that] are set out [in 23 P.S. § 401(d)], we [saw] no need for this Court to enumerate additional criteria.

Id. 316 Pa.Superior Ct. at 287, 462 A.2d at 1353. Here, appellant questions the master’s use of a starting point; he is not questioning our use of such a point “in determining whether or not the lower court abused its discretion.” Id. In any event, we are not establishing any presumptions or guidelines. As the Paul W. v. Margaret W. court put it: “Equality is not a formula for distribution but only a starting point at which the court will begin to weigh the factors presented in [a] particular case.” Paul W. v. Margaret W., supra at 10. Thus the use of a 50/50 starting point is not an end to the matter of equitable distribution. A court must then apply the § 401(d) factors to reach an equitable distribution. That is exactly what was done in the instant case: in approving the master’s division of the marital property, the lower court noted that “he also considered all the factors for equitable distribution set forth in Section 401(d) of the Divorce Code, thereby arriving at a 45/55 division of marital assets.” (Lower Court Opinion at 4). We wish to make clear, then, that “equitable does not automatically mean equal.” N. Perlberger, Pennsylvania Divorce Code § 5.2 at 3 (1980); see also Semasek v. Semasek, 331 Pa.Superior Ct. 1, 11, 479 A.2d 1047, 1052 (1984) (concept of equitable distribution is not an equal division of the marital property). Accordingly, because we find no error in the master’s use of a 50/50 starting point, we find this contention meritless.

II. When is Property Acquired After Separation Marital Property?

Appellant next contends that certain property that he received after he and appellee separated is not marital property. Specifically, appellant claims that “retirement incentives,” a “lump-sum retirement incentive,” and a portion of his Bethlehem Steel Savings Plan were improperly included in the marital estate by both the master and the lower court.

“Marital property” is defined generally as follows:

All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

23 P.S. § 401(f). However, “[property acquired after separation until the date of divorce” is not marital property. Id. § 401(e)(4). Reading these two provisions together, we find that the § 401(f) presumption merely begs the question here: when was the property acquired?

We agree with appellant that he received the above three items of property after he separated from appellee. But that is not an end to the question. This Court has noted: “It is acknowledged in jurisdictions requiring the distribution of marital property that a spouse has a right, co-extensive with that of a wage-earner spouse, to a portion of retirement benefits accrued during marriage.” Flynn v. Flynn, 341 Pa.Superior Ct. 76, 82, 491 A.2d 156, 159 (1985) (emphasis added). We have also stated that to deny one spouse a share of the other’s retirement benefits would deny the former something he or she “helped to achieve during the marriage.” Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 194, 488 A.2d at 617. “Each spouse has a reasonable expectation of enjoying the monies received from an employee retirement fund.” Id., 339 Pa.Superior Ct. at 194, 488 A.2d at 617. Accordingly, we have held:

Since a pension benefit is an economic resource acquired with funds that would otherwise have been utilized by the parties during their marriage to purchase other assets, it constitutes marital property. This determination is made without regard to the possibly contingent nature of the pension, whether or not it has vested or matured.

Flynn v. Flynn, supra, 341 Pa.Superior Ct. at 83, 491 A.2d at 160. See generally Braderman v. Braderman, supra, 339 Pa.Superior Ct. at 192, 488 A.2d at 616 (distinguishing among types of retirement or pension benefits). However, “only that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code.” King v. King, 332 Pa.Superior Ct. 526, 530, 481 A.2d 913, 915 (1984). Thus, the above cases suggest that it matters not when a spouse receives property, but whether the right to receive such property accrues during the marriage. To the extent that a property right “accrues” or “arises” during the marriage, then, the spouses expect they will enjoy the property when they receive it. With these principles in mind, we will consider appellant’s contentions.

Appellant first contends that the retirement incentives he received after his separation from appellee are not marital property. We agree. Appellant elected to participate in a Bethlehem Steel Corporation “Special Early Retirement Incentive Program” pursuant to which he was to receive a payment of $813.20 for twenty-one months beginning in November, 1983. Appellant argued below that those payments “were a special sweetener offered by [his] employer for early retirement, a benefit or option which had not accrued prior to the separation.” (Appellant’s Exceptions to Master’s Report no. 6 at 2). The lower court found that the payments were marital assets because they were “received in lieu of the regular pension and surviving spouse benefit in part.” (Lower Court Opinion ¶¶ 9, 12 at 4). This is incorrect. The twenty-one month payments were to be received in addition to the regular pension and special (lump-sum) payment and were equal to twenty-five percent of an employee’s monthly salary. See Bethlehem Steel’s General Announcement to All Nonrepresented Salaried Employees. The crucial point is this: eligible employees were not notified of the program until April, 1983. See id. Employees had to decide no later than May 31, 1983, whether they wished to participate in the plan and they had to retire by July 31, 1983. Appellant did both. Therefore, this property “right” did not accrue prior to the parties’ separation. Appellee could not have expected to enjoy these payments when appellant received them because neither party had any idea that he would receive the payments until after they separated. Accordingly, we reverse the lower court’s order insofar as it includes these payments in the marital estate subject to equitable distribution.

The lower court also found that appellant’s “special lump-sum retirement payment of $10,549.00 was properly included as a marital asset since it was received in lieu of the regular pension and surviving spouse benefit in part.” (Lower Court Opinion II9 at 4). The record supports this conclusion. In a letter to “Dear Fellow Salaried Employee” from Bethlehem Steel’s Vice Chairman and Chairman of the General Pension Board, appellant was notified that the company’s “pension plan provides that an eligible salaried employee can apply for and, upon meeting specified requirements, receive a lump-sum payment in lieu of the special payment, regular pension and surviving spouse benefit.” See also General Pension Board’s Notice of Change in Interest Rate Used in Lump-Sum Payment Calculations. Therefore, this lump-sum payment was received in lieu of benefits that accrued to appellant while he was married and was correctly included within the marital estate.

Appellant also contends that the master erred in including the entire amount, $15,610.00, of his Bethlehem Steel Savings Plan as a marital asset. We agree. Only those contributions to the plan made by appellant (and the company’s matching contributions) during the time that the parties were married are marital property. Contributions made after the date of their separation obviously did not accrue to appellant before their separation date. We therefore reverse the lower court’s order insofar as it includes the full amount of the savings plan in the marital estate. In his inventory and appraisal, appellant valued the plan at $9,000. On remand, the court shall determine the value of the plan as of July 4, 1980, and adjust its award accordingly-

III. The Pension “Formula”

Appellant next contends that the master erred in valuing his pension benefits and in dividing them equally between the parties. Specifically, appellant argues, that the master erred in (1) failing to consider that appellant’s earnings were at their highest level in the period following the parties’ separation and at their lowest before such period in devising a formula to determine what portion of appellant’s pension plan is marital property; (2) using the deferred distribution, rather than the immediate offset, method of dividing the pension benefits; (3) calculating the value of the accrued pension benefits that appellant received because he was not given credit for taxes taken out of his gross pension pay; and (4) recommending that the pension benefits be divided equally because of appellant’s greater needs. We find these contentions either waived or merit-less.

In computing the portion of appellant’s pension benefits to be received by each party, the master proceeded as follows:

At the time of separation, [appellant] had accrued 27.5 years of service which shall be used as the numerator, and the denominator shall be the total years of service, i.e. 30, which shall be multiplied by the monthly [pension] payments [to be received by appellant] to arrive at the portion of the plan which is [appellee’s] share.

(Master’s Report at 14). Appellee concedes that no adjustments were made to the above formula to reflect the fact that appellant’s earnings may have been greater following the parties’ separation. (Brief for Appellee at 7). In ruling on appellant’s exception, the lower court found that “[t]he Master used a fair and equitable method to allocate the value of pension benefits [that] accrued prior to the separation and after separation.” (Lower Court Opinion at 4). We do not believe that the lower court abused its discretion in light of the fact that neither before the master, the lower court, see Appellant’s Exceptions to Master’s Report no. 5 at 2, nor this Court on appeal has appellant offered an alternative formula for determining what portion of his pension is marital property.

Appellant’s next two arguments are waived. Pennsylvania Rule of Civil Procedure 1920.55 provides in relevant part that:

Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Mat ters not covered by exceptions are deemed waived unless, prior to the entry of the final decree, leave is granted to file exceptions raising those matters.

Pa.R.Civ.P. 1920.55(a) (emphasis added). Issues (2) and (3) here were not covered in appellant’s exceptions, and appellant did not move for leave to file exceptions raising these matters before the entry of the final decree. Accordingly, we will not consider these arguments for the first time on appeal. “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R. A.P. 302(a).

Appellant also argues that the master erred in equally dividing the pension benefits. He argues that his earning capacity is minimal due to his various health problems, that appellee is not burdened with similar health problems, that she has a higher earning ability, and that her “contributions to [the] acquisition [of the pension] were indirect and uncertain in the best of circumstances.” (Brief for Appellant at 14). We agree with the lower court that “[t]he Master considered all of the factors listed by [appellant], and arrived at a fair and equitable method of dividing the pension income of the parties,” (Lower Court Opinion at 7), and thus find no abuse of discretion. Appellant’s health was primarily relevant to the master’s using the deferred distribution method of dividing the pension, (Master’s Report at 12-14), and, in any event, appellant is retired and “continue[s] to be covered by héalth insurance and that coverage is a benefit to [him]____” (Id. at 9-10). While the master did find that appellee “has a somewhat higher earning ability,” he also found that “she has never been employed in a supervisory capacity[,] has generally been a laborer[, and] ... has attempted to procure employment without success, for the most part.” (Id. at 31). And, regarding appellee’s contributions to appellant’s acquisition of his pension, we note that, while finding that “[n]either party substantially contributed to the increased earning power of the other,” (id. at 26), the master also found that appellee’s pension should be divided equally between the parties. See id. at 6-9.

IV. The 55/45 Equitable Distribution of the Marital Property

Appellant last contends that the master’s 55/45 division of the marital property was in error. Specifically, appellant argues that the master (1) failed to give due regard to the § 401(d) factors; (2) erred in considering appellant’s “greater anticipated” Social Security benefits; (3) failed to consider appellee’s dissipation of marital assets; (4) took into account appellant’s marital misconduct in equitably distributing the marital property, misconduct not being a § 401(d) factor; and (5) failed to consider appellee’s employment (and related health benefits). These claims are meritless.

Section 401(d) of the Divorce Code provides as follows:

In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

23 P.S. § 401(d). We believe that the master gave more than adequate regard to these factors, see Master’s Report at 23-31, in finding that, “[i]n order to attempt to recognize the health insurance and Social Security factors and effectuate economic justice,” (id. at 31), he recommended a 55/45 division of the property.

We find no error in the master’s consideration of appellant’s anticipated Social Security benefits in equitably distributing the marital property. Section 401(d) requires that “[t]he sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits,” be considered by the court (or master, see Pa.R.Civ.P. 1920.51(a)(2)(i)) in equitably distributing the marital property. 23 P.S. § 401(d)(6). The master found, but we need not find here, that the benefits were not marital property subject to equitable distribution. See Sorbello v. Sorbello, 21 Pa. D. & C.3d 187, 196-97 (Ct.C.P. Cumberland County 1981) (holding that Social Security benefits are not marital property subject to equitable distribution).

Appellant also argues that the master erred in failing to consider appellee’s dissipation of the marital assets. We disagree. The master “considered] the monies paid by [appellee] out of the funds withdrawn from [two joint accounts] as dissipation of marital assets____” (Master’s Report at 30). Moreover, the master included the two accounts in question as assets within appellee’s control when he equitably distributed the marital property. See id. at 32-34. Therefore, any monies that appellee dissipated were included in her fifty-five percent share of the marital estate.

We also find that the master did not improperly consider appellant’s marital misconduct in equitably distributing the marital property. Equitable distribution is to be done “without regard to marital misconduct.” 23 P.S. § 401(d). Here, the master mentioned appellant’s “extramarital affair” only in the context of computing appellant’s dissipation of marital assets. See Master’s Report at 29-30. Thus, such misconduct was not a factor in the master’s recommended distribution of the marital property other than as it related to appellant’s dissipation of marital assets.

Appellant last argues that the master erred in failing to consider appellee’s employment at Mack Trucks and the health benefits she received in conjunction with such employment. Our review of the record indicates that appellee’s position was only temporary. See Appellant’s Petition for Suspension of Support Order and Appellee’s Objection to Petition for Suspension of Support Order (appellee “expects to be [employed] for ... several months”). Furthermore, in discussing the third factor to be considered when equitably distributing marital property, “[t]he ... employability ... of each of the parties,” 23 P.S. § 401(d)(3), the master noted that, after appellee’s employer, Hellertown Manufacturing, closed its Hellertown plant, “she made application to Western Electric, Durkee’s and Burron, [but] she was not able to obtain employment.” (Master’s Report at 25). This finding supports an inference that appellee had difficulty in obtaining permanent employment. Accordingly, this claim is meritless.

For the foregoing reasons, we vacate the judgment of the lower court, affirm in part and reverse in part the court’s order, and remand this case for proceedings consistent with this opinion.

Judgment vacated; order affirmed in part and reversed in part; case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . We have grouped appellant's numerous contentions into four broad categories. While we address each of appellant’s arguments, we note that appellant’s brief did not conform to Pa.R.A.P. 2119(a), in that the argument portion did not track the statement of questions involved and the arguments were not labeled.

      . Of course this assumes that the trial court found facts. Cf. Ruth v. Ruth, supra, 316 Pa.Superior Ct. at 292, 462 A.2d at 1356 (SPAETH, J. (now P.J.), dissenting) (“First we look to see whether the lower court has made findings of fact____”).

      . In other words: has the court considered the facts in light of the factors? In this regard, we note 23 P.S. § 404: "In an order ■... for distribution of property, the court shall set forth the reason or reasons for the distribution ordered."

      . We refer throughout this opinion to the lower court’s February 25, 1985 opinion. The court’s Pa.R.A.P. 1925(a) opinion of April 8, 1985, ”specif[ies] that the place in the record where the lower court’s reasons for the entry of the Order appealed from may be found is in the Memorandum Opinion accompanying the Order dated February 25, 1985.”

      . Appellant also challenges the master’s application of the § 401(d) ' factors. That issue is considered below in section IV of this opinion.

      . In holding that appellant’s pension plan, savings plan, and retirement incentives (including the lump-sum payment) were marital property, the master stated that they "should be equally distributed by the Court." (Master’s Report at 10). Our review of the record, however, indicates that the master included the accrued (¿a, already paid) pension benefits (including ten months of the retirement incentives), the savings plan, and the lump-sum payment in the marital estate subject to the 55/45 division. See id. at 31-35. We only state this for the record; neither party addresses the issue here.

      . The master found that, because "no breakdown was given as to what was acquired during the marriage prior to separation and what was acquired after separation, ... the entire amount [should] be considered marital and subject to distribution." (Master’s Report at 17). Similarly, here on appeal appellant has not argued what the breakdown of the payment should be if we find it to be a marital asset. Therefore we also find that the entire amount of the lump-sum payment is marital property.

      . While the master originally noted the correct value of the plan, see Master’s Report at 9, he misstated the amount as $10,549.00, see id. at 17, and as $10,610.00, see id. at 21, 32. The latter figure was used in the computation of the total value of the marital estate. When the lower court amended the estate value, it used $10,549.00 as the base figure. See Lower Court Opinion at 5. The difference is insignificant.

      . The fraction utilized by the master is known as the "coverture fraction”:
      The fraction represents that portion of the value of the pension that is attributable to the marriage. The numerator of the fraction is the total period of time the employee spouse was participant in the plan from date of marriage until date of separation, and the denominator is the total period of participation in the pension plan.

        King v. King, supra, 332 Pa.Superior Ct. at 533, 481 A.2d at 916.

      . The parties agreed to incorporate into the record documents from their related support matter. (N.T. May 2, 1983 at 200-01).