author: MONTEMURO, Judge: JOHNSON, Judge, ROWLEY, Judge,

text:
    579 A.2d 403
    Terrance WILLIAMS, Appellant, v. Stephen GALLAGHER, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 8, 1990.
    Filed Sept. 7, 1990.

      Terrance Williams, pro se.
    Stephen P. Gallagher, Philadelphia, pro se.
    Before CAVANAUGH, ROWLEY, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

This is a direct appeal from the entry of a judgment of non pros. The appellant, Terrance Williams, was represented in a criminal matter by the appellee, Stephen P. Gallagher. In September of 1987, appellant filed a legal malpractice action against the appellee. Appellant was incarcerated at the time, and filed the lawsuit pro se. Appellant alleged in the complaint that appellee had negligently failed to file a direct appeal from appellant’s criminal conviction and that, as a result, appellant had suffered, inter alia, pain and suffering. Appellee subsequently filed preliminary objections, and the appellant filed a response to the preliminary objections in March of 1988. By Order dated August 16, 1988, the trial court removed appellant’s claim for $1,000,000 in damages, but otherwise denied appellee’s preliminary objections. When the appellee filed his answer, containing New Matter, in September of 1988, appellant promptly filed a response to the New Matter on September 19, 1988. Approximately one month later, on November 4, 1988, a judgment of non pros was entered for failure of the appellant to appear at the call of the list for assignment to trial. See Pa.R.C.P. 218.

We begin by recognizing that a party may file a direct appeal from the entry of a judgment of non pros. See Valley Peat & Humus v. Sunnylands, Inc., — Pa.Super. —, 581 A.2d 198 (en banc) (1990). A judgment of non pros is properly entered where the following exists: “... a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.” James Bros. Lumber v. Union Banking & Trust Co., 432 Pa. 129, 132, 247 A.2d 587, 589 (1968) (citations omitted).

In the instant case, we are convinced that the trial court abused its discretion in entering the judgment of non pros on November 4, 1988. Apparently due to his incarceration, the appellant was not aware that his case had been listed for trial. Given the nature of the cause of action, and appellant’s diligence in responding to pleadings and motions filed by appellee, we cannot imagine how the appellee was prejudiced by appellant’s failure to appear at the call of the list on November 4, 1988. There is no question, given the content of appellant’s filings in the trial court, that the appellee was fully apprised of the nature of appellant’s cause of action. The Philadelphia Court of Common Pleas filed an Opinion in this matter on February 21, 1989, wherein the court correctly recognized that “when cases are listed on the trial list that is published in the Legal Intelligencer, it is incumbent on the parties’ attorneys, or the parties themselves if they are not represented by counsel, to appear at the call of the trial list.” Op. of Trial Court, February 21, 1989, at 1. This general rule, however, does not support the entry of the non pros judgment under the circumstances of the present case. Further, we note that the appellant is now aware of the way in which the call of the trial list is handled by the Philadelphia Court of Common Pleas.

The dissent believes that we have engaged in “speculation and guesswork” concerning why the appellant failed to present himself at the call of the list. We are not convinced that, in entering the non pros judgment, the trial court was operating in the dark. It strains credibility to suggest that the trial court had no information whatsoever concerning this litigation at the time of the entry of the non pros judgment. The fact that the appellant was litigating this matter pro se, while incarcerated, is evident from a mere glance at any pleading or correspondence filed by the appellant in the trial court. We refuse to characterize what occurred in this case as a mystery when, in fact, it is not.

In our decision in Valley Peat & Humus v. Sunnylands, Inc., — Pa.Super. —, 581 A.2d 193 (en banc) (1990), we recognized that while the element of prejudice may have less importance in Rule 218 cases where it is established that a party is not ready for trial without satisfactory excuse, prejudice is a relevant consideration in any non pros case. The entry of a non pros judgment results from a balancing of all of the equitable considerations and circumstances presented by a given case. The dissent in the case sub judice proclaims surprise at our conclusion that the appellee could not have made a showing of undue prejudice resulting from the appellant’s failure to appear in court for the call of the list. We would simply note that it was no secret that the appellee was representing himself in this legal malpractice action filed by the appellant against the appellee as the only named defendant. The factual basis of the lawsuit instituted by the appellant is not a complicated one. Moreover, the legal basis for the present action may be succinctly stated: negligent failure to file a direct appeal from appellant’s criminal conviction.

Given the obvious explanation or excuse for appellant’s absence at the call of the list, the nature of appellant’s cause of action, and the surrounding equities present in this case, we find an abuse of discretion in the entry of the non pros judgment.

Order reversed and case remanded. Jurisdiction is relinquished.

JOHNSON, J., files a dissenting opinion in which FORD ELLIOTT, J., joined.

ROWLEY, J., files a concurring statement.

JOHNSON, Judge,

dissenting.

When Terrance Williams failed to appear at the call of the trial list on November 4, 1988, the Honorable Abraham J. Gafni entered a judgment of non pros. This was nothing more nor less than is contemplated by Pa.R.C.P. 218. Without filing any petition to remove the non pros, Williams appeals directly to this court. The majority would review the entire record in order to speculate upon why Williams did not answer the call of the list on November 4, 1988. I would not. I dissent.

My colleagues begin by guessing that Williams was not aware that his case was listed for trial “[apparently due to his incarceration.” They then proceed to examine the content of numerous documents filed by Williams, none of which would have been immediately available to the calendar control judge when the trial list was being called. From this examination, the majority concludes that the appellee, Stephen Gallagher, knew what the lawsuit was all about and, therefore, could not have been prejudiced! From this springs the conclusion that Judge Gafni abused his discretion by applying Rule 218.

By failing to file a petition to remove the non pros, Williams has denied the trial court its right to consider its own action. Judge Gafni correctly sets forth the flaw in Williams’ position in his Opinion filed pursuant to Pa.R.A.P. 1925:

Plaintiff has appealed this judgment directly to the Superior Court, and no motion to vacate the judgment of non pros has been filed with this Court. Accordingly, this Court is unaware of the existence of any of the elements necessary to vacate a non pros including whether the default that occasioned the entry of judgment can be reasonably explained or that the cause of action is valid. Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 575, 519 A.2d 500, 503 (1986). Without this information, the Court can express no opinion with respect to the judgment of non pros.

Opinion, Gafni, J., dated 2/21/89, filed February 23, 1989.

I agree completely with Judge Gafni. In those cases arising under Rule 218 where the appeal is taken immediately from the entry of non pros, the only element controlling the discretion of the trial judge is whether a plaintiff has placed a satisfactory excuse of nonreadiness before the court at the time the case is called for trial. See Valley Peat & Humus v. Sunnylands, Inc., — Pa.Super. —, 581 A.2d 193 (en banc) (Dissenting Opinion by Johnson, J.) (No. 981 Philadelphia 1989, filed Oct. 5, 1990).

Based upon the analysis set forth in my Dissenting Opinion in Valley Peat & Humus, supra, I strongly believe that prejudice is not an element to be considered in the review of any Rule 218 dismissal on direct appeal.

The majority begins by recognizing that a party may file a direct appeal from the entry of a judgment of non pros. I do not disagree. Where that is done, however, we should refrain from speculation and guesswork about what the trial court should have known at time of entry of the non pros. We are limited to considering the certified record on appeal when reviewing a case. Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987).

Judge Gafni appropriately limited himself to those matters which had been properly placed before him, both in administering the call of the list and in complying with Pa.R.A.P.1925. Were we to do the same, we would find no abuse of discretion on the part of the most distinguished trial judge.

In a companion case, the majority would place upon our trial judges the obligation of holding, at the time a case is called for trial, “a brief discussion with counsel present” and “argument.... concerning any prejudice resulting to [defendant] from [plaintiffs] failure to appear.” Elcomp, Inc. v. Drolet, Nos. 1698 and 1699 Pittsburgh 1988, — Pa.Super. -, 581 A.2d 193 (1990) (en banc). On this appeal, the majority takes the trial judge to task for not having taken “a mere glance, at any pleading or correspondence filed by the appellant in the trial court.” Majority opinion, at page 586-587.

These suggestions arise from the refusal of the majority to distinguish between (1) a direct appeal from the order entering a non pros and (2) an appeal from an order refusing to remove the judgment of non pros. When the trial judge in this case declares that he is, as a matter of law, unaware of the existence of any of the elements necessary to vacate a non pros, because no petition to remove the judgment has been filed, I am prepared to believe him.

Compliance with established law and procedure has nothing to do with mystery. It does remain a mystery, however, as to the exact documents upon which the majority relies in reaching its numerous findings of fact. The majority opinion does not set this forth. It may well be that, within the luxury that we on a reviewing court enjoy in considering a matter from many different angles without the press of time, the explanation or excuse for appellant’s absence at the call of the list, and the nature of appellant’s cause of action, and the surrounding equities in this case are, as the majority declares, “obvious.”

But that is not what we have to decide on this appeal. We need only determine what facts were available to Judge Gafni at the moment he entered the judgment of non pros. Until either Williams or the majority cites to something specific in the record certified on this appeal, which cited information was available to, and should have been known by, Judge Gafni at the time the list was called, I will continue to afford Judge Gafni the respect and credibility which is his due.

The appropriate proceeding would have been a petition and rule to open the judgment, a proceeding which would necessarily have involved the taking of testimony to establish the verity of the facts alleged for the removal of the judgment. Cox v. Felice Perri & Sons, 412 Pa. 415, 417, 195 A.2d 79, 80 (1963). Had Williams filed a petition to vacate the non pros, and if the trial court had acted upon that petition after the filing of an answer and a hearing thereon, we would then be faced with the question of whether the trial court abused its discretion by refusing to vacate that judgment. See Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988); Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986). Williams has not filed any such petition, and that question is not properly before us. Compare Wilson v. Vincent, 300 Pa. 321, 150 A. 642 (1930).

The only issue before us on this appeal is this:

When a case is called for trial, if without satisfactory excuse a plaintiff is not ready, may a court enter a non pros on its own motion without abusing its discretion?

I read Pa.R.C.P. 218 and say: “Yes.” My colleagues examine the entire record from September 1987 to November 1988 and say: “No.” Hence, this dissent.

ROWLEY, Judge,

concurring:

In this case, unlike the companion case of Valley Peat & Humus v. Sunnylands, Inc., — Pa.Super. —, 581 A.2d 193 (1990), there are no disputed issues of fact to be resolved. It is unquestioned that appellant was incarcerated at the time his case was called for trial. Therefore, I concur in the majority’s decision to vacate the judgment of non pros.

      . We, of course, agree with the dissent’s view that the more appropriate procedure would envision the filing of a petition to open the non pros judgment in the trial court prior to the filing of an appeal to this Court.


source: Caselaw Access Project

author: McEWEN, Judge.

license: Public Domain

text:
    579 A.2d 407
    Craig A. NOYES and Kay Noyes, Appellants, v. Homi COOPER, M.D., Joseph Ferris, M.D. and General Electric Company. Craig A. NOYES and Kay Noyes, v. Homi COOPER, M.D., Joseph Ferris, M.D. and General Electric Company, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1989.
    Decided July 24, 1990.
    Reargument Denied Sept. 10, 1990.

      Bruce W. Bernard, Erie, for appellants (at 108) and appellees (at 187).
    John M. McLaughlin, Erie, for appellants (at 187) and appellees (at 108).
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   McEWEN, Judge.

These consolidated appeals have been taken from the judgment n.o.v. entered by the trial court in favor of the defendants, Homi Cooper, M.D., Joseph Ferris, M.D. and General Electric Company, following a jury verdict in the amount of $180,000 in favor of Craig and Kay Noyes (hereinafter “plaintiffs”) in this action for fraudulent misrepresentation.

Craig Noyes injured his back on April 24, 1985, while lifting a 75 lb. bearing assembly in the course of his employment with the defendant, General Electric. Plaintiff was treated by the defendants, Dr. Cooper and Dr. Ferris, at General Electric’s dispensary from the date of the injury until August 6, 1985. X-rays and CT scans of the plaintiff’s back, performed on June 17, 1985, revealed an old fracture of the L-5 vertebrae and a bulging disc. However, plaintiff was not informed of these findings by the defendants. The defendants continued to treat the plaintiff’s back conservatively, eventually discharging the plaintiff on August 5, 1986, after sixty-five visits.

Plaintiff testified that he was told by the defendants that the injury to his back was resolved and that there was “nothing wrong with his back” but that he would have “good days and bad days” and would have “to learn to live with it”. Plaintiff testified that he sought no further treatment for his back, despite constant pain, due to the diagnosis of the defendant doctors that his pain was not caused by any physical condition of his back but rather had a psychological origin. Mr. Noyes testified that while he experienced dull pain in his lower back constantly after April 24, 1985, the pain often became severe even as a result of normal activities such as bending, squatting, lifting or turning.

When plaintiff was subsequently hospitalized for unrelated problems in the fall of 1985 by Dr. Norman Rudolf, Dr. Cooper called Dr. Rudolf and suggested to him that the plaintiff suffered from “mental problems”. A few months later, in February of 1986, the plaintiff visited Dr. Keith Parrish, a chiropractor, seeking treatment for cervical pain. Dr. Cooper called Dr. Parrish on February 18, 1986, and informed Dr. Parrish that the plaintiff had mental problems rather than musculoskeletal problems and that any treatment rendered by Dr. Parrish would not be covered by workmen’s compensation as it was not work related.

Dr. Parrish, in order to provide treatment to the plaintiff, requested that the defendants provide copies of “any and all health records ... including x-rays....” relating to the plaintiff. The medical records provided by the defendants in response to Dr. Parrish’s request did not contain the June 17, 1985, CT scan report which revealed a “bulging of the annulus fibrosus of the L4-5 disk ... and an old appearing ununited pars inter-articularis fracture of the left L-5”. While these records were never provided to Dr. Parrish or the plaintiff, the old fracture and bulging disc were discovered as a result of x-rays taken by Dr. Parrish. The plaintiff, after being informed of the x-ray findings, continued with conservative treatment until December 10, 1987, when he underwent a spinal fusion which relieved the pain which he had experienced since April 24, 1985.

Plaintiff sought to establish at trial that he suffered from spondylolysis at L-5 which caused him constant pain between April 24, 1985, and December 10, 1987. Plaintiff alleged that the defendants were aware of and actively concealed the existence of the old fracture and bulging disc in order to wrongfully deprive him of workmen’s compensation benefits. Plaintiff also sought to establish that the telephone calls made by Dr. Cooper to plaintiff’s treating physicians were made for the sole purpose of wrongfully depriving plaintiff of workmen’s compensation benefits.

The jury awarded Craig Noyes $160,000 in compensatory damages for pain and suffering, and loss of life’s pleasures for the eight month period during which he did not seek medical treatment for his back pain due to the defendants’ fraudulent misrepresentations as to the source of his symptoms. Plaintiff Kay Noyes was awarded $20,000 for loss of consortium for the same period.

The trial court, however, granted the motion for judgment n.o.v. filed by the defendants on the basis that “the testimony of plaintiffs’ own witnesses, Doctors Parrish and Carneval, reveals that there was no damage to the plaintiff that was caused by the defendants’ actions.” The trial court provided the following explanation of its decision to grant judgment n.o.v.:

At trial, plaintiffs’ witness, Dr. Carneval, was posed a hypothetical question. In this hypothetical question, there were two courses of action which could be taken regarding the plaintiff’s back pain. Option one was for the plaintiff to adjust and try to live with this condition. Option two was a spinal fusion operation. The hypothetical question described the condition of the plaintiff during the complained of period, and how his condition had been improving. The witness responded by stating that this would show that the patient had adjusted to the situation, that he could live with it, and thus “a spinal fusion would not be indicated at that particular point,” and, if he had been the surgeon on August 7, 1987, instead of a year later, “we wouldn’t have presented it (spinal fusion) as an option.”
The testimony of a second expert testifying for the plaintiff, Dr. Parrish, corroborated the earlier testimony of Dr. Carneval. Dr. Parrish was asked on cross examination whether it was correct to say that it was not appropriate to abandon conservative treatment (in favor of surgery) until December, 1986, to which the witness responded in the affirmative. Dr. Parrish was also asked what different treatment he would have rendered if he had had the CT scans, to which he responded that he would have done nothing different.
Thus, the plaintiffs’ own witnesses provided evidence that there was no damage to the plaintiff because they would not have operated any sooner; and would not have done anything different beyond conservative treatment until December, 1986, which is beyond the complained of eight-month period. Therefore, the fifth element required for a finding of fraud has not been established, thereby precluding a finding of fraud. The law permits no recovery on the evidence presented at trial. Because the plaintiff has failed to establish his case, a judgment notwithstanding the verdict is proper.

We are constrained to vacate that portion of the trial court’s order which granted judgment n.o.v. in favor of Dr. Ferris and Dr. Cooper.

The theory of the plaintiffs’ case was that Craig Noyes, had he been apprised of the findings of the x-ray and CT examinations of June, 1985, would have sought treatment for his back pain and would have thus realized, eight months earlier, that he required surgical intervention since he could not tolerate the pain. The trial court, in concluding that there was no evidence of damages upon which to sustain the verdict, disregarded the testimony of the plaintiff that he suffered constant pain from April 24, 1985, until the surgery on December 10, 1987.

Dr. Carneval testified that the procedure which the plaintiff underwent on December 10, 1987, “is an operation to relieve pain.” Thus, “what might be a surgical indication in one patient, since they can’t tolerate the pain, would not be an indication for surgery in another patient with the exact same problem who can tolerate pain.”

The plaintiff alleged and the jury accepted that he would have obtained treatment between June 17, 1985 and February of 1986, and would have realized, eight months earlier, that surgery was his only viable alternative. The basis for plaintiffs’ suit was that the fraudulent misrepresentations of the defendant doctors caused plaintiff, Craig Noyes, to suffer unnecessarily for eight months.

We have reviewed the entire record and find, unlike the trial court, that there was sufficient clear and precise evidence upon which the jury could find that Dr. Cooper and Dr. Ferris fraudulently misrepresented the plaintiff’s medical condition, intending the plaintiff to rely on the misrepresentation, and that the plaintiff, in reliance thereon, ceased medical treatment, resulting in a delay of eight months in ultimately obtaining relief through surgery. The trial court, in ruling upon the motion for judgment n.o.v. improperly weighed the conflicting evidence and disregarded the testimony of the plaintiff, an improper usurpation of the function of the jury. See: Person v. C.R. Baxter Realty Company, 340 Pa.Super. 537, 541 n. 2, 490 A.2d 910, 912 n. 2 (1985).

General Electric contends that judgment n.o.v. was properly entered in its favor in any event since, pursuant to Section 303(a) of the Workmen’s Compensation Act, 77 P.S. § 481(a), it may not be held directly or vicariously liable to plaintiffs under any theory. See: Poyser v. New man & Company, Inc., 514 Pa. 32, 522 A.2d 548 (1987). General Electric correctly asserts that while it did not raise the defense of immunity from suit for an intentional tort based on the exclusivity clause of the Workmen’s Compensation Act in the trial court, it may be raised on appeal since the Act deprives the Court of Common Pleas of jurisdiction over the subject matter. LeFlar v. Gulf Creek Industrial Park #2, 511 Pa. 574, 580-82, 515 A.2d 875, 879 (1986); Winfree v. Philadelphia Electric Co., 520 Pa. 392, 396-98, 554 A.2d 485, 487 (1989). See also: Barber v. Pittsburgh Corning Corp., 521 Pa. 29, 37-40, 555 A.2d 766, 771-772 (1989). We agree that General Electric cannot, as a result of Section 303(a) of the Workmen’s Compensation Act, be held either directly or vicariously liable to plaintiff for any harm caused by acts of its employees, regardless of whether the conduct was intentional or negligent. Judgment n.o.v. was, therefore, properly entered in favor of General Electric.

While the entry of judgment n.o.v. in favor of Dr. Ferris and Dr. Cooper was error, we are unable to reinstate the verdict of the jury as to these two defendants since we find merit in their argument concerning the court’s instructions on the elements of fraudulent misrepresentation. We are also persuaded by the argument of plaintiffs that upon retrial the issue of punitive damages must be submitted to the jury.

Defendants contend that a new trial is required by reason of the error in the following italicized portion of the charge concerning the elements of fraudulent misrepresentation:

If you find that the defendants made a misrepresentation to tlie plaintiff, then you go on to the second element which is, that the misrepresentation made by the defendants to the plaintiff was fraudulent. So if you find there was a misrepresentation, then you ask yourself, was it fraudulent. A misrepresentation is fraudulent when the person making the misrepresentation, (a), knows it’s untrue, or (b) doesn’t believe that it is true, or is indifferent as to its truth; or (c), by reason of special circumstances has a duty to know whether it is true. That’s what makes a statement fraudulent, a misrepresentation fraudulent, [emphasis supplied]

We are constrained to agree that a new trial is required since the jury may have been misled by the charge which, although a correct statement of the law, provided the jury with an erroneous basis upon which to find the defendant doctors liable.

The primary purpose of a court’s charge to the jury is to apprise the members of the jury, in an understandable manner, of the legal principles by which they must decide the case. The law is well settled that the trial court is not required to use any prescribed language in performing this function. Indeed, for a party “to be entitled to a new trial [on the basis of erroneous jury instructions], the instructions complained of must be fundamentally in error, and it must appear that the erroneous instructions might have been responsible for the verdict. A new trial is also appropriate where the instructions, although perhaps not erroneously stating the law, have misled or confused the jury.

Hawthorne v. Dravo Corp., Keystone Division, 352 Pa.Super. 359, 368, 508 A.2d 298, 302-03 (1986) (emphasis supplied) (citations omitted). Accord: Jones v. Montefiore Hospital, 494 Pa. 410, 420, 431 A.2d 920, 925 (1981); Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 268-70, 545 A.2d 926, 931 (1988); McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 342, 472 A.2d 1149, 1150 (1984).

It is well settled that the scienter element of the tort of fraudulent misrepresentation may be satisfied by actual knowledge on the part of the tortfeasor of the falsity of the representation, reckless ignorance of the matter, or “mere false information where a duty to know is imposed on a person by reason of special circumstances.” Reimer v. Tien, 356 Pa.Super. 192, 198-00, 514 A.2d 566, 569 (1986) quoting Shane v. Hoffmann, 227 Pa.Super. 176, 181-83, 324 A.2d 532, 536 (1974). Accord: Smith v. Renaut, 387 Pa.Super. 299, 305-07, 564 A.2d 188, 192 (1989). The court’s charge was in conformity with these principles. Defendants Cooper and Perris, however, as fellow servants of appellant, could be found liable only for conduct which constituted an “intentional wrong”. 77 P.S. § 72 See: McGinn v. Valloti, 363 Pa.Super. 88, 525 A.2d 732 (1987), allo. denied, 517 Pa. 618, 538 A.2d 500 (1987).

Since the charge of the court suggested that the defendants could be liable on the basis of constructive or legal fraud as well as actual or positive fraud, contrary to Section 205 of the Workmen’s Compensation Act, we are required to award a new trial. See: Spearing v. Starcher, 367 Pa.Super. 22, 29-31, 532 A.2d 36, 40 (1987).

Plaiiitiffs, in their appeal, also contend that the trial court erred in refusing to submit the issue of punitive damages to the jury. The trial court provided the following rationale for its refusal to submit the issue of punitive damages to the jury:

Pennsylvania case law requires that “punitive damages must be based on conduct which is malicious, wanton, reckless, willful or oppressive.” Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). “Punitive damages may be awarded for conduct that is outrageous due to defendant’s evil motive or reckless indifference to the rights of others.” Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 374, 492 A.2d 1382 (1985). It is for the court to decide whether to permit an instruction of the jury on punitive damages. “The trial judge must determine whether the Plaintiff has presented sufficient evidence to support a punitive damages claim; that is, facts from which the jury might reasonably conclude that the preponderence of the evidence establishes outrageous conduct by the defendant.” Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). We find that the plaintiff has not put forth evidence of outrageous conduct by the defendants so as to merit an instruction on punitive damages, and thus, properly refuse to instruct the jury on this subject.

The rule of punitive damages set forth in the Restatement (Second) of Torts § 908 has been adopted in Pennsylvania. Martin v. Johns-Manville Corp., 508 Pa. 154, 168-70, 494 A.2d 1088, 1096 (1985); Feld v. Merriam, 506 Pa. 383, 393-95, 485 A.2d 742, 747 (1984); Chambers v. Montgomery, 411 Pa. 339, 344-45, 192 A.2d 355, 358 (1963). Comment (b) to Section 908 provides that:

[s]ince the purpose of punitive damages is not compensation of the plaintiff but punishment of the defendant and deterrence, these damages can be awarded only for conduct for which this remedy is appropriate—which is to say, conduct involving some element of outrage similar to that usually found in crime. The conduct must be outrageous, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others.... Reckless indifference to the rights of others and conscious action in deliberate disregard of them (See § 500) may provide the necessary state of mind to justify punitive damages ....

We are compelled to the conclusion that it was error, and logically inconsistent, to submit the issue of defendants’ liability for intentional, fraudulent misrepresentation to the jury and yet refuse to submit the issue of punitive damages. The defendants, as fellow servants acting within the scope of their employment, could be found liable to the plaintiffs only for “actual fraud” and not merely constructive or legal fraud.

Fraud embraces a good variety of actionable wrongs, and may be actual or constructive as it is knowingly or innocently made. Actual or positive fraud requires a dishonest intent, and consists in deception, intentionally practiced to induce another to part with property, or to surrender some legal right, and which accomplishes the end design. Constructive or legal fraud, on the other hand, designates a breach of duty tending to deceive others and operating to their injury, although there be no dishonest or vicious intent. It is not fraud as generally understood, but is merely conduct that creates liability and that has therefore some of the consequences of actual fraud. Constructive fraud usually arises from a breach of duty when a relationship of trust and confidence exists.

P.L.E. Fraud § 1, pg. 39 (emphasis supplied).

Thus, “actual fraud” involves conduct which is intentional, wilful, malicious and oppressive. Where the plaintiff’s evidence establishes actual fraud, the decision of whether to award punitive damages and the amount to be awarded are within the discretion of the factfinder. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 128-30, 464 A.2d 1243, 1263 (1983). “[I]t is difficult to picture a fact pattern which would support a finding of intentional fraud without providing proof of ‘outrageous conduct’ to support an award of punitive damages.” Id. Similarly, in the instant case, the evidence of fraudulent misrepresentation presented by plaintiffs, if accepted by the fact-finder, would support an award of punitive damages. The issue must, therefore, be submitted to the jury upon retrial of the matter. See and compare: Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 424-28, 565 A.2d 1170, 1182-1183 (1989); Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 381-85, 492 A.2d 1382, 1386-1387 (1985).

The judgment n.o.v. entered in favor of General Electric is affirmed. The judgment n.o.v. entered in favor of Dr. Cooper and Dr. Ferris is vacated, and the case remanded for retrial in conformity with the foregoing.

      . Appeal No. 108 Pittsburgh 1989 was filed by Craig and Kay Noyes while the Appeal at No. 187 Pittsburgh 1989 was taken by Drs. Cooper and Ferris and the General Electric Company.

      . The final order upon which judgment was entered provided:
      AND NOW, this 10th day of January 1989, upon reconsideration of our Order of December 13, 1988, for the reason that we failed to rule on two of Plaintiffs’ post-trial motions, we enter the following Amended Order:
      1. Plaintiffs’ motion to mold the verdict is GRANTED and the prothonotary is directed to mold the verdict to read in favor of Plaintiff, CRAIG A. NOYES in the amount of $160,000 and in favor of Plaintiff, KAY NOYES, in the amount of $20,000 and against Defendants, HOMI COOPER, M.D., JOSEPH FERRIS, M.D. AND THE GENERAL ELECTRIC COMPANY.
      2. Plaintiffs’ motion to amend the record is GRANTED, and the record should reflect that during their deliberations, the jury inquired of the trial judge as to whether or not medical expenses were to be awarded to the plaintiffs, and the court responded in the negative. '
      3. Plaintiffs’ motion for a new trial as to punitive damages is refused and said motion is DISMISSED.

        4. Defendants’ motion for judgment N.O.V. is GRANTED and I hereby enter judgment for the defendants.
      5. Defendants’ motion for a new trial is refused and said motion is DISMISSED.

      . The jury awarded appellant Craig Noyes $160,000 in compensatory damages, and awarded Kay Noyes $20,000 on her loss of consortium claim.

      . The eight month period which underlies plaintiffs’ claim is the period through which the condition disclosed by the diagnostic tests on June 17, 1985, was concealed until the x-ray examination of Dr. Parrish in February, 1986.

      . For reasons set forth hereinafter, judgment n.o.v. was properly entered in favor of Defendant General Electric Company.

      . Defendants’ argument, that judgment n.o.v. was properly entered in their favor since "there was no expert testimony as required nor any other evidence to show that defendant’s alleged delay of either surgical or conservative treatment was the legal cause of the pain complained of’, merits but summary rejection. There was more than sufficient evidence, i.e., the testimony of plaintiff and his treating physicians, which, if accepted by the jury, would support a finding that the defendants’ fraudulent misrepresentations, made with the intent of wrongfully depriving plaintiff of workmen’s compensation benefits, were the legal and actual cause of the pain suffered by the plaintiff during the eight month period in which he did not seek medical treatment.

      . Section 303(a) of the Act provides:
      (a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
      77 P.S. § 481(a).

      . "[A] reviewing court may affirm the decision of the trial court if the result is correct on any ground without regard to the grounds relied upon by the trial court.” Butler v. DeLuca, 329 Pa.Super. 383, 388-89, 478 A.2d 840, 843 (1984). See: E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977).

      . Section 205 of the Workmen’s Compensation Act provides:
      If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

      77 P.S. § 72 (emphasis added).

      . Section 908 of the Restatement provides, inter alia: Punitive damages are damages ... awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
      Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.
      Restatement (Second) of Torts, § 908(1), (2).


author: POPOVICH, Judge:

text:
    579 A.2d 879
    COMMONWEALTH of Pennsylvania, Appellee, v. Dwayne L. FULLER, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed July 27, 1990.

      J. Richard Robinson, Dillsburg, for appellant.
    Gerald A. Lord, Asst. Dist. Atty., York, for Com.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered on June 15, 1989, in the York County Court of Common Pleas, following appellant’s conviction on the charges of aggravated assault, solicitation to commit aggravated assault, conspiracy to commit aggravated assault and attempt to commit aggravated assault. Appellant was consecutively sentenced to five to ten years of imprisonment for the aggravated assault and one and one-half to three years for the criminal solicitation. We affirm.

On appeal, appellant asks the following multitude of questions concerning alleged errors below:

1. Whether the trial court committed prejudicial error by amending the information midway through the trial to include the offense of aggravated assault?
2. Whether counsel was ineffective by not objecting to the trial court’s amendment of the information after the trial began which resulted in the deprivation of the defendant’s constitutional rights?
3. Whether counsel was ineffective by allowing the defendant to make an inculpatory statement to the police under the mistaken belief that a plea agreement had been reached?
4. Whether the trial court’s delay in deciding post-verdict motions denied the defendant prompt and timely access to the appeal system?
5. Whether the trial court abused its discretion in imposing a higher and disproportionate sentence upon the appellant in comparison to co-defendants who were convicted of the same offenses?
6. Whether the trial court abused its discretion by imposing a higher and disproportionate sentence upon the defendant in comparison with co-defendants who were more actively principally involved in the crimes all were convicted of?
7. Whether the trial court erred in imposing consecutive sentences for inchoate conviction and substantive offense which arose out of the same set of facts and circumstances?
8. Whether the verdict was against the weight of he evidence in that the defendant did not intend to commit serious bodily injury by use of a dangerous weapon?
9. Whether the prosecutor committed reversible error in making reference in his closing remark to his own personal beliefs?
10. Whether the prosecutor committed reversible error in making reference in his closing remarks to the commission of crimes that had been dismissed by the court?
11. Whether the court erred in its jury charge by refusing to restrict the Commonwealth as to the facts set forth in the information?
12. Whether the court erred in reading from the comments of Sheldon Toll in his adaptation of the Crimes Code?
13. Whether the trial court’s use of an example containing reference to the use of a weapon in the jury charge was reversible error?

The record reveals the following facts: Appellant was solicited by John Baldwin to “rough up” the victim, Terry Weimer, for the sum of $500. Appellant agreed, and, subsequently, Thomas Beavers offered to to perform the task for appellant. Appellant drove Beavers to the victim’s home. Beavers then entered the house and shot the victim. Upon hearing the shots, appellant immediately departed, leaving Beavers at the scene.

At trial, appellant contended that he did not envision nor intend that the victim would be shot. Rather, he believed that Beavers would simply “beat up” the victim. However, it is undisputed that the gun used to shoot the victim was owned by appellant and that appellant knew Beavers possessed the gun when he entered the victim’s home. Beavers testified that he intended to use the gun to force the victim into the basement where Beavers would then “rough-up” Weimer. Apparently, Weimer refused to follow Beavers’ orders and then menaced Beavers with a baseball bat whereupon Beavers shot the victim numerous times. As a result of the shooting, the victim was hospitalized for one month, lost thirteen pints of blood and partially lost the use of his right hand.

Originally, appellant was charged with attempt to commit criminal homicide, conspiracy to commit criminal homicide and solicitation to commit criminal homicide. However, immediately prior to the beginning of trial, the prosecution sought to amend the indictment and information to include an aggravated assault charge. (Trial Transcript, p. 34) The motion to amend was granted. Following the close of the Commonwealth’s case, the lower court granted demurrers to the attempted criminal homicide and related inchoate offenses. Appellant was convicted and sentenced on the remaining charges. This appeal followed.

First, appellant contends the lower court committed prejudicial error by permitting amendment of the information to include the offense of aggravated assault. Pa.R.Crim.P. 229, Amendment of Information, specifically states:

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interest of justice.

In Commonwealth v. Stanley, 265 Pa.Super. 194, 212-13, 401 A.2d 1166, 1175 (1979), affirmed, 498 Pa. 326, 446 A.2d 583 (1982), we explained:

The purpose of Rule 229 is to insure that a defendant is fully apprised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed.
(Citations omitted) In effecting this purpose, the courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If however, the amended provision alleges a different set of events, or the elements or defenses to the amended provision crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. (Footnotes omitted)

See also Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984).

The Commonwealth argues that aggravated assault is a lesser included offense of attempted murder, and consequently, amendment was proper. In support of its position, the Commonwealth cites Commonwealth v. Shurgalla, 371 Pa.Super. 244, 537 A.2d 1390 (1988) and Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983). The Commonwealth contends that Shurgalla and Ford held that aggravated assault was a constituent offense of attempted murder and, for the purposes of sentencing, merged with the more serious offense. While we do not agree with the Commonwealth that aggravated assault is a lesser included offense of attempted murder, we will nevertheless permit the amendment.

Instantly, the Commonwealth has failed to note the distinction between offenses that merge under the prior “interest of the Commonwealth” test and lesser included offenses. The recent Pennsylvania Supreme Court decision in Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) is illustrative. In Williams, supra, the Court held that the doctrine of merger based on whether the Commonwealth has interest in prosecuting a defendant for more than one crime was abrogated. Now, merger occurs only when, of the two crimes arising from a single criminal episode, one of the crimes is a lesser included offense of the other. Williams, 559 A.2d at 29.

To quote from Williams, 559 A.2d at 28 n. 2., “[a] lesser included offenses is a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater included offense.” In other words, it must be impossible to commit the greater offense without also committing the lesser included offense. Instantly, it is obvious when the elements of criminal attempt murder and aggravated assault are compared that a criminal attempt murder can occur without a constituent aggravated assault.

Criminal attempt, 18 Pa.C.S.A. § 901(a), states: “A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step towards the commission of that crime.” Thus, criminal attempt murder requires 1) specific intent to kill and 2) any act which constitutes a substantial step towards killing. On the other hand, aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), provides: “A person commits an aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting an extreme indifference to the value of human life.”

It is crucial to note that the word “attempt” as used in the aggravated assault statute does not carry the same meaning as the more general usage of “attempt” in defining the inchoate crime. With respect to aggravated assault, an “attempt” requires more than a mere “substantial step” towards commission, rather it requires at least a simple assault. See Commonwealth v. Russell, 313 Pa.Super. 534, 538-42, 460 A.2d 316, 319-320 (1983), quoting Commonwealth v. Alexander, 477 Pa. 190, 193-94, 383 A.2d 887, 889 (1978). After analyzing the elements of criminal attempt murder and aggravated assault, it is obvious aggravated assault is not a lesser included offense since every element of aggravated assault is not necessarily included in criminal attempt of murder. For example, hiring a contract killer to assassinate one’s enemy constitutes a “substantial step” towards commission of a murder and could result in a conviction for criminal attempt murder. However, the same act is clearly insufficient to support an aggravated assault conviction. Without a doubt, certain factual scenarios can result in a conviction for both criminal attempt murder and aggravated assault, but that does not require the offenses to have a lesser included/greater offense relationship. See Williams, 559 A.2d at 29 (unlawful restraint arising from same incident as an aggravated assault is not a lesser included offense and does not merge).

By using the pre-Williams cases, the Commonwealth has failed to define correctly the relationship of the offenses in question. This becomes self-evident when one considers that criminal attempt murder is a felony of the second degree, 18 Pa.C.S.A. § 905(a), but aggravated assault as charged instantly carries a grade of felony of the first degree. Logically, how can a lesser included offense carry a greater penalty? Simply, it can not. Further, it is analytically consistent with the purposes of criminal jurisprudence to punish a criminal who completes an aggravated assault and causes serious bodily injury more severely than a criminal who merely takes a “substantial step” towards completion of a murder. See Solem v. Helm, 463 U.S. 277, 293, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637, 651, (1983) (“It is generally recognized that attempts are less serious than completed crimes.”); Modern Penal Code § 5.05.

While we agree with appellant that aggravated assault is not a lesser included offense of criminal attempt of murder, we are convinced the lower court correctly permitted the information to be amended. In reviewing the validity of an amendment to a criminal information, we look more to substantial justice than to technicalities. Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985). Instantly, the trial court allowed amendment of the information to include the charge of aggravated assault prior to trial. Although this was a case of an eleventh hour amendment, the Court offered appellant the opportunity to request a continuance to prepare to meet the new charge. See T.T., pgs. 7-14. The charge of aggravated assault and criminal attempt murder arose out of the same set of facts. And, under the particular facts of this case, the crimes charged involved the same basic elements. Thus, appellant was placed on notice of his criminal conduct and was not prejudiced by the amendment. Even though the present amendment was substantive in that it changed the grade of the offense charged, Commonwealth v. Gray, 329 Pa.Super. 347, 353-54, 478 A.2d 822, 825 (1984), we will permit the amendment.

We now turn to appellant’s allegations of ineffective assistance of trial counsel. The applicable legal standard of review for a claim of ineffective stewardship was concisely stated by our Supreme Court in Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988), as follows:

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. (Citations Omitted)

See also Commonwealth v. Graham, 522 Pa. 115, 560 A.2d 129 (1989); Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

First, appellant contends trial counsel was ineffective for failing to object to amendment of the information to include a charge of aggravated assault. Having determined that the trial court did not err by permitting the amendment, appellant’s underlying argument lacks merit, and counsel cannot be held ineffective for failing to pursue a meritless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989).

Second, appellant alleges counsel was ineffective for failing to request a continuance to prepare for the new charge. This argument fails because appellant has not explained how he was prejudiced by counsel’s action. Moreover, the record is clear that appellant was aware of all the facts pertaining to the criminal attempt murder charge and the aggravated assault charge prior to trial; and, appellant’s defense would not have changed if a continuance had been granted. Cf., Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985) (counsel not ineffective for failure to request continuance where defendant did not show continuance necessary to prepare further for defense).

Third, appellant argues that counsel was ineffective for permitting appellant to make an inculpatory statement to police under the assumption that a plea agreement had been reached. However, appellant has not shown he was prejudiced by the statement’s admission. On direct examination, appellant testified in a manner consistent with the statement he made to the police, i.e. that the victim was to be “roughed-up,” not killed or seriously injured. The testimony of appellant’s co-conspirators was also consistent with appellant’s at trial testimony and his out-of-court statement. In sum, the evidence admitted via his out-of-court statement was cumulative. Moreover, the evidence of appellant’s guilt was overwhelming, and, absent a showing of actual prejudice, counsel can not be held ineffective. Commonwealth v. Durst, supra.

Next, appellant contends that the trial court’s delay in deciding his post-verdict motions denied him prompt and timely access to the appellate system. This argument is also without merit. Appellant complains, in essence, that the approximately one year and five month delay between his conviction and his sentencing violated his constitutional rights to a speedy trial and due process. However, the delay in adjudication of appellant’s post-verdict motions and in sentencing was caused by the trial court’s desire to provide appellant with “every procedural safeguard necessary for him to be fairly and competently represented.” Trial Court Opinion, p. 18. We find no violation of appellant’s rights. See Commonwealth v. Greer, 382 Pa.Super. 127, 554 A.2d 980 (1989); Commonwealth v. Stewart, 221 Pa.Super. 1, 289 A.2d 126 (1972).

Appellant also contends that sentencing court abused its discretion by imposing a higher and disproportionate sentence upon appellant in comparison with his co-conspirators who were convicted of the same offenses and who were more actively involved in commission of the the crime. Appellant was sentenced by Judge Emanuel Cassimatis to five to ten years on the aggravated assault charge and a consecutive sentence of one and one-half to three years on the criminal conspiracy charge. Thomas Beavers and John Baldwin were sentenced by Judge Joseph Erb to five to ten year sentences for aggravated assault and a concurrent sentence of one and one-half to three years for the inchoate offense.

In Commonwealth v. Hollerbush, 298 Pa.Super. 397, 408, 444 A.2d 1235, 1241 (1982), we were faced with a similar situation to the one currently before and, therein, we stated:

This is not a situation where the appellant and his accomplices were tried jointly, or where they were tried singly and sentenced by the same judge. The sentencing judge in this case neither tried nor sentenced any of appellant’s accomplices. Where, as here, the sentencing court considered the circumstances of the crime and the particular characteristics of the appellant, the fact that the appellant received a stiffer sentence than other appellants guilty under the same statutory provisions for their respective roles in this gang rape does not in itself constitute grounds for a finding that the appellant’s sentence was excessive. Commonwealth v. Jezorwski, 280 Pa.Super. 178, 421 A.2d 464 (1980).

Herein, appellant and his accomplices were tried and sentenced by different judges. Accordingly, the fact that appellant received a sentence greater than that of his coconspirators is not in and of itself sufficient grounds to merit resentencing. Hollerbush, supra. Further, a review of appellant’s sentence reveals no abuse of discretion by the court below. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

Appellant also contends that the lower court erred in sentencing him for both the completed aggravated assault and the inchoate crime of criminal conspiracy. However, it is well established that the completed crime and the conspiracy to complete the intended crime are separate and distinct offenses and do not merge for sentencing purposes. Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980); Commonwealth v. Torbeck, 266 Pa.Super. 535, 405 A.2d 948 (1979).

Next, appellant alleges the verdict was against the weight of the evidence. Challenges to the weight of the evidence require an assessment of the credibility of the testimony, and we will not entertain such a challenge since our examination is confined to the cold record. Commonwealth v. Wallace, 522 Pa. 297, 314-16, 561 A.2d 719, 728 (1989); Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728, 733 n. 3 (1987); Commonwealth v. Griscavage, 512 Pa. 540, 542-44, 517 A.2d 1256, 1257 (1986).

If appellant actually intended this issue to be an attack on the sufficiency of the evidence, his argument is clearly without merit. The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably determine all elements of the crime charged to have been established beyond a reasonable doubt. Wallace, 561 A.2d at 722 n. 7; Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). Instantly, it is without question that the evidence was sufficient to sustain appellant’s conviction on the charge of aggravated assault. The evidence produced at trial demonstrated that appellant was hired by John Baldwin to “rough-up” the victim; appellant then solicited Thomas Beavers to “rough-up” the victim; appellant drove Thomas Beavers to the victim’s home; the .357 handgun used by Beavers to shoot the victim was owned by appellant; appellant knew Beavers possessed the revolver when he entered the victim’s home; the victim was hospitalized after the shooting for three weeks and lost approximately thirteen pints of blood; and appellant received $500.00 for the injuries to the victim. Without doubt, the aforementioned evidence was sufficient for the jury to determine that appellant was guilty of aggravated assault based on an accomplice theory.

Appellant alleges he should receive a new trial because the prosecutor stated his personal beliefs in his closing statement and, in so doing, reference to charge of the criminal attempt murder, even though the trial court had granted a demurrer to that charge. A review of the prosecutor’s closing argument reveals that he did in fact make a passing reference to his personal belief that appellant intended to kill the victim. Trial Transcript, pp. 252-253. However, before the prosecutor could even complete his thought, defense counsel requested he be allowed to approach the bench and objected to the prosecution’s comment. The trial court immediately thereafter gave the following curative instruction:

Ladies and gentlemen of the jury, the personal beliefs of attorneys on either side are not supposed to be argued to you or to be considered by you. What you are to pay attention to are the arguments that they make giving it what credibility you think it is entitled to in accordance with the instruction I will give you later on. Trial Transcript, p. 254.

Instantly, we have no reason to doubt the efficacy., of the trial court’s curative instruction, and appellant has failed to demonstrate any prejudice which the prosecutor’s comment may have engendered. Thus, appellant is not entitled to a new trial. Commonwealth v. Slocum, 384 Pa.Super. 428, 442-43, 559 A.2d 50, 56-57 (1989).

Finally, appellant raised several challenges to the jury instruction of the trial court. He contends the instruction was erroneous because 1) the trial court did not restrict the Commonwealth to the facts as pleaded in the information, 2) the trial court read an excerpt from Sheldon Toll’s Pennsylvania Crimes Code Annotated regarding accomplice liability and 3) the trial court illustrated the concepts of “intentional,” “knowing” and “reckless” by analogizing them to the use of a gun by aiming to kill another, aiming to harm only but actually killing and aiming at a target but missing and killing another.

It is well settled that the trial court’s charge to the jury must be read as a whole and that error can not be predicated on an isolated excerpt from the charge. Commonwealth v. Dillon, 386 Pa.Super. 236, 245-48, 562 A.2d 885, 890-891 (1989), allocatur granted, 524 Pa. 595, 568 A.2d 1245 (1989); Commonwealth v. Bailey, 322 Pa.Super. 249, 267-69, 469 A.2d 604, 614 (1983), citing Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981); Commonwealth v. Todaro, 301 Pa.Super. 1, 446 A.2d 1305 (1982). Instantly, viewing the charge as a whole, we can detect no error. Moreover, even if we view the isolated excerpts about which appellant complains, it is obvious that the lower court fulfilled its duty by correctly explaining the law and clarifying the issues for the jury. See Commonwealth v. Newman, 323 Pa.Super. 394, 401-02, 470 A.2d 976, 980 (1984).

Having determined all of appellant’s assertions of error are without merit, we affirm.

Judgment of sentence affirmed.

WIEAND, J. concurs in the result.

      . Only the aggravated assault charge was added prior to trial. The Commonwealth did not request to amend the information to include the related inchoate offenses until after the close of the Commonwealth’s case. (Trial Transcript, p. 176-177).

      . The grades of some types of aggravated assault were changed from a felony of the second degree to a felony of the first degree. 18 Pa.C.S.A. § 2702(b), as amended 1986, Dec. 11, P.L. 1517, No. 164, § 1, effective in 60 days. We note that all of the cases cited by the Commonwealth for the proposition that aggravated assault is a lesser included offense of criminal attempt murder were decided under the prior version of § 2702, pursuant to which aggravated assault was a felony of he second degree.

      . Assuming aggravated assault is a lesser included offense of criminal attempt murder, then the two would merge for sentencing purposes, and sentence should be imposed only on the greater offense. “When crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the one to which the legislature has attached the greatest penalty.” Commonwealth v. Sayko, 333 Pa.Super. 265, 271, 482 A.2d 559, 563 (1984); Commonwealth v. O’Brien, 356 Pa.Super. 294, 514 A.2d 618 (1986). However, if the aforestated rule were applied when convictions for both aggravated assault and criminal attempt murder have occurred, a defendant would have to be sentenced on the lesser included offense, not the greater, as aggravated assault, in most cases, carries the greater penalty.

      . Without a doubt, aggravated assault is a lesser included offense of murder. Commonwealth v. Musselman, 483 Pa. 245, 247 n. 1, 396 A.2d 625, 626 n. 1 (1979).

      . Appellant argues that the charge of aggravated assault was not added until after the Commonwealth had rested and demurrers had been granted to the criminal attempt murder charge and related inchoate offenses. However, the record clearly demonstrates the aggravated assault charge was added prior to trial.

      . Again, we reiterate that generally aggravated assault is not a lesser included offense of criminal attempt (murder). However, we are not applying the merger test herein. Rather, our purpose is to determine, under the particular facts of this case, whether appellant was placed on notice of his criminal conduct and whether appellant was prejudiced by the last minute addition. Commonwealth v. Stanley, supra.

      . Substantive amendments have been allowed in the past. See Commonwealth v. Jones, 319 Pa.Super. 570, 466 A.2d 691 (1983) (change in grade of criminal mischief permissible; amendment made prior to trial); Commonwealth v. Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982) (adding criminal charges to information on day of trial permissible where no showing of prejudice, no request for continuance).
      Herein, we distinguish those cases where the Commonwealth sought permission to amend the information substantively only after resting its case. See Gray, supra, (trial court improperly permitted information charging defendant with criminal trespass to be amended at close of Commonwealth’s case, in that defendant lacked notice of prosecutor’s intent to prosecute him for forcible entry rather than surreptitious or deceptive entry, and amendment raised grade of crime from third to second-degree felony, subjecting defendant to more severe penalty); Commonwealth v. Plybon, 279 Pa.Super. 329, 421 A.2d 224 (1980) (proposed amendment of information charging defendánt with driving under combined influence of alcohol and a controlled substance which would have deleted reference to controlled substance and would have charged driving under the influence of alcohol only was properly denied because it would have substantially altered the offense as charged as to prejudice the defendant, thus, eliminating defense that defendant was not under the influence of any controlled substance at the time of the allegedly criminal act).

      . Moreover, appellant's counsel permitted appellant to make his statement in an effort to reach a plea bargain. Therefore, counsel’s action had a reasonable basis designed to effectuate his client’s interests, and counsel can not be deemed ineffective. Commonwealth v. Davis, supra.

      . Appellant was represented at trial by Attorney Floyd P. Jones. He was convicted on Jan 13, 1988. In the post-trial motions filed by Attorney Jones, Jones raised the issue of his own ineffectiveness. In response, the court, on July 25, 1988, appointed new counsel, Attorney Steven G. Zorbaugh. Attorney Zorbaugh requested additional time to study appellant's case. His review was hindered by the absence of a trial transcript which was not made available until December 20, 1988. Attorney Zorbaugh later petitioned the court to withdraw, and said petition was granted on the grounds of conflict of interest. On January 25, 1989, Attorney J. Richard Robinson, current counsel, was appointed to represent appellant and additional post-verdict motions were filed. On April 19, 1989, the lower court filed its opinion addressing appellant’s allegations. Appellant was sentenced on June 15, 1989.

      . The Commonwealth contends that the inchoate charges filed against Thomas Beavers were nolle pressed pursuant to a "charge bargain.” This slight discrepancy in the facts does not influence our decision, and we will accept appellant's version of the facts for our discussion.

      . Moreover, this issue was actually waived by trial counsel because he failed to object to the instruction prior to the jury’s retiring for deliberation. Pa.R.Crim.P. 1119(b); Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220, 1221 (1981); Commonwealth v. Smith, 321 Pa.Super. 170, 179-82, 467 A.2d 1307, 1313 (1983). However, as the trial court address this issue in its review of appellant’s post-verdict motions, we also considered the merits of this challenge.


author: TAMILIA, Judge:

text:
    579 A.2d 889
    In the Interest of Christopher Michael SMITH, a Juvenile. Appeal of Christopher Michael SMITH.
    Superior Court of Pennsylvania.
    Argued June 7, 1990.
    Filed Aug. 14, 1990.

      Basil G. Russin, Chief Public Defender, Kingston, for appellant.
    James P. Phillips, Jr., Asst. Dist. Atty., Lake Ariel, for Com., participating party.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from the March 16, 1990 dispositional Order entered following appellant’s adjudication of delinquency on the charge of involuntary manslaughter. Appellant, who was 17 years old at the time, was charged with both voluntary and involuntary manslaughter following the shooting death of Richard Hillman. On December 20, 1989, after an adjudication hearing, the trial judge dismissed the charge of voluntary manslaughter because he found appellant “was justified in killing Richard Hillman for self-protection” (H.T., 12/20/89, p. 9). However, the trial judge found him guilty of involuntary manslaughter because he “was guilty of reckless and grossly negligent conduct when he undertook to introduce a loaded revolver into the differences between him and Richard Hillman” (H.T., p. 11).

The facts leading to Richard Hillman’s death, as summarized by the trial court, are as follows:

“The juvenile, Christopher Smith, and his girlfriend, Nicole Gialanella, attended several graduation parties on the evening of the 10th of June, 1989, including one at the home of Lisa Petruskas, not far from the home of the juvenile. They arrived at approximately 10:00 and that was where Nicole had intended to spend the night. Richard Hillman was also at the party. A couple of Chris’ friends approached him, told him to stay away from Richard Hillman because he was threatening to beat Chris up because Chris was trespassing on his turf.” Apparently referring to Chris’ escort, Nicole, who had in the past dated Richard Hillman.
Richard did come up to Chris, held up his fingers about four inches apart to show how close he was to beating Chris up. He also said that he could cock back and nail Chris, but he wouldn’t do it because Chris was only about 105 pounds. Chris walked away from him and went for a walk with Nicole to avoid trouble.
Richard and one Gerald Gizenski followed them and one of them allegedly threw a bottle that broke at their feet; Nicole being barefoot. Chris also alleged that Rich tried to trip him, but with the help of one Brian Hampel the couple eluded Richard Hillman and returned back to the Petruskas house. It was during this episode that Chris called Rich “a no good drunken bum and he would never amount to anything.” Rich got mad, but Brian Hampel held him back.
Chris thereupon left in his car and drove hurriedly away. He went directly home, took a shower and was preparing for bed when he heard a car coming up the driveway. Chris got dressed and went out expecting to see Nicole. Richard Hillman was at the base of the driveway urinating. Chris said to Rich, “I want to settle things peacefully.” At this time it was getting light; in other words, day was breaking. Richard said he was going to get even or get back because of what he, Chris, had said at the party.
Then Chris went into the house and into his parent’s bedroom and grabbed his father’s .22 pistol out of a dresser drawer. It was loaded at the time. It was in a holster and loaded at the time he took it. He went out, met Rich apparently at the patio. Rich gave him a slap with his open hand and grabbed him by the collar of his sweatshirt demanding an apology. Chris said, “I apologize.” There was a struggle which carried the two from the patio through the room door and into the living ropm and onto a couch. Apparently Chris pushed Richard off him and at that time he, Richard, came around and said that he wanted to shoot a couple of rounds.
They started off the patio and Chris at this time started to put the gun away, retreived [sic] it when he came around. Richard came back to the patio. His mood had changed. Richard Hillman was calling him a pussy and saying that he would not shoot him. He further suggested, “Go ahead and shoot me; it would be self-defense.” The juvenile at this time had trouble getting the safety off the gun. Richard came towards him and he raised his fist. The juvenile shot one shot into the air, but it didn’t stop the victim, the decedent. Then the juvenile shot once into his body, but he kept coming and the juvenile then shot him in the head. From other evidence in the case death was simultaneous with the shot to the head.

(H.T., pp. 3-5.)

At the March 16, 1990 dispositional hearing, the trial court found appellant in need of care, treatment and rehabilitation and directed that appellant, upon his qualification for high school graduation, be committed to St. Gabriel’s, a youth correctional institution, where he would remain until he reached 21 years of age. Appellant was then released into his parents’ custody.

Appellant moved for the trial judge’s recusal on March 21, 1990, and the court stayed appellant’s disposition pending resolution of the motion. On May 1, 1990, the trial court rescinded and vacated the March 21, 1990 Order. On May 7, 1990, appellant moved to modify disposition, and the trial court issued upon the Commonwealth a rule to show cause why the requested relief should not be granted and scheduled a hearing for June 4, 1990. Appellant filed a timely notice of appeal on May 17, 1990, and on May 18, 1990, the trial court issued an Order continuing the reconsideration hearing believing it was without jurisdiction because an appeal had been filed.

This case involves a tragic episode for the two teenagers involved and their families. Procedurally it is in disarray because of a failure to follow the requirements of the Juvenile Act, 42 Pa.C.S. § 6301 et seq., while attempting to conform to the Rules of Criminal Procedure in a manner not provided for by law. The disposition of the case is also in error because the trial court made mutually exclusive findings of fact and conclusions of law, thereby entering a dispositional Order which cannot be legally sustained. The trial court also provided cause for a motion of recusal by his statement, sympathetic to the victim, arising from his own personal family situation, which we need not pass upon in view of our disposition of this case. We touch upon the recusal motion only as it affects the procedural question as to whether or not the case should be quashed and remanded for consideration of that motion and the motion for reconsideration of sentence.

Initially, we address the Commonwealth’s requests to dismiss the appeal due to appellant’s failure to file post-trial motions and his untimely motion for modification of sentence. Both appellee and appellant rely on the Rules of Criminal Procedure as the basis for their post-dispositional actions. In Commonwealth v. Clay, 376 Pa.Super. 425, 546 A.2d 101 (1988), we dealt with the question of post-trial motions extensively as it relates to appeals in juvenile cases.

We observe at the outset that the Juvenile Act, unlike its predecessors, does not provide for post-trial motions or relief, and the procedures for post-trial review contained in the Pennsylvania Rules of Civil Procedure do not apply to juvenile proceedings unless specifically provided otherwise. Pennsylvania Rule of Criminal Procedure 1(a) provides:
These rules shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic relations proceedings.
In the note to Rule 1, it is stated:
These rules apply to proceedings involving juveniles only to the extent that the Juvenile Act does not vest jurisdiction in the Juvenile Court. See, e.g., Juvenile Act §§ 6302-6303, 6355, 42 Pa.C.S. §§ 6302-6303, 6355 (1982); Vehicle Code 75 Pa.C.S. § 6303 (1977).
Nor may post-trial proceedings be introduced by reason of local rules as the authority to impose local rules must flow from the Juvenile Act, which does not grant such authority, or pursuant to Rule 1(b) of the Rules of Criminal Procedure, which is not applicable. Pennsylvania Rule of Criminal Procedure 6 provides:
b) Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.
As stated above, Rule 1 provides the Rules of Criminal Procedure do not apply to juvenile proceedings so that a local rule could not impose those rules on such proceedings. Additionally, the Juvenile Act is sui generis and was meant by the legislature to be twofold in purpose: to protect the public interests and rehabilitate youthful offenders. [In the Interest of] McDonough [287 Pa.Super. 326, 430 A.2d 308 (1981) ], supra. Because of the difference in function between the Juvenile Act and the Crimes Code, the proceedings of the two are not interchangeable. In Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981).

Id., 376 Pa.Superior Ct. at 428, 546 A.2d at 103.

In Matter of Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990), the issue of post-trial motions in juvenile cases was revisited by our Court en banc as it related to proceedings leading to claims of ineffectiveness of counsel. The majority voted 6 to 3 in favor of rejecting post-trial motions in juvenile proceedings and, therefore, the statement and rationale of Clay, supra, is controlling.

Here, the procedural anomalies occurred first when appellant filed a motion for recusal after the disposition hearing. This motion was untimely in that further motions for recusal are not viable after the disposition Order has been entered. See Reilly by Reilly v. Southeastern Penn sylvania Transportation Authority, 507 Pa. 204, 222, 489 A.2d 1291, 1300 (1985) (“[o]nce the trial is completed with the entry of a verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he cannot be heard to complain following an unfavorable result.”). The Order of disposition was entered on March 16, 1990, and the only permissible action following that Order was filing an appeal. We addressed this issue in Clay, supra, stating as follows:

Preliminarily, we must clarify the procedure by and through which this appeal was take as it is incorrect. The Juvenile Act, 42 Pa.C.S. § 6301 et seq., does not provide for the right of appeal. In the Interest of McDonough, 287 Pa.Super. 326, 430 A.2d 308 (1981). Article V, section 9 of the Pennsylvania Constitution provides “there shall be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court.” The Juvenile Court is a court of record and pursuant to Pa.R.A.P. 341, appeal may be taken as of right from any final order of an administrative agency or lower right from any final order of an administrative agency or lower court. The final Order of a Juvenile Court is the Dispositional Order as to a Delinquent Child, pursuant to 43 Pa.C.S. § 6352; see McDonough, supra.

Clay, supra at 428, 546 A.2d at 103 (emphasis added).

The Order of March 16, 1990 was the Order which should have triggered the appeal. A motion for recusal, if it was to be considered, had to be presented before that Order was entered. A timely objection to the judge’s statement and request for recusal or oral motion to continue the dispositional hearing, pending consideration of such a motion, would have effectively resolved the procedural aspects and preserved the right for appeal. Once the dispositional hearing and Order became final, nothing appellant could do would breathe life into such a motion. However, in staying the disposition Order on March 21, 1990, within the 30 days allowed for taking an appeal, pursuant to accepted procedural practice applicable to appeals, the trial court, in effect, extended the time for taking the appeal to 30 days from the time of reinstatement of the dispositional Order. Pennsylvania Rule of Appellate Procedure 1701, Effect of Appeals Generally, (b)(3)(i), (ii), comes into play only under the circumstance where an appeal has already been taken. The motion for recusal, while untimely, was acted upon by the trial court, in staying the dispositional Order while the case was still within his jurisdiction. This can only be considered as acting upon a motion for reconsideration, as recusal of the trial judge, if granted, could only result in a dispositional hearing de novo by another judge. Despite the errors leading to this result, the dispositional Order was held in abeyance until reinstated. On. May 1, 1990, the court rescinded and vacated the Order of March 21, 1990, thereby reinstating the original disposition Order. The motion for modification of disposition filed by appellant on May 7th, while considered by the trial court in issuing a rule to show cause, referable on June 4, 1990, at which time a hearing was scheduled, was never acted upon by the court as he believed he was without jurisdiction, since an appeal had been filed on May 17, 1990. In this respect, the trial court was correct, even if the reason was not, because, as we stated above, the motion to modify is a nullity in a juvenile proceeding. Likewise, Pa.R.A.P. 1701(b)(3), providing for granting reconsideration of a prior Order after appeal is taken, requires that the court “expressly grant reconsideration” (“(an Order that “all proceedings shall stay” will not suffice)” Note to Pa.R.A.P. 1701). So despite the procedural convolutions in this case, a timely appeal has resulted, being filed within 30 days of the final Order, entered May 1, 1990. We, therefore, hold that despite the procedural errors by counsel and the court, fundamental justice requires that we consider the merits of this appeal as to dismiss the appeal, as suggested by the Commonwealth, would result in a failure to provide a means for appellate review, short of habeas corpus, as P.C.R.A. procedures do not apply to juvenile cases. See In the Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977). Additionally, the entire thrust of the Juvenile Act and most legislation involving litigation as to children and families is to provide the most expeditious resolution of appeals possible, consistent with due process. This case illustrates the wisdom of that approach as the dispositional Order was entered on March 16, 1990, and the case was argued in Superior Court on June 7, 1990.

We may now address the substantive issue on the merits, which may be stated succinctly as whether the trial court, upon finding the appellant was justified for his self-protection in using force resulting in the death of the victim, may thereafter find him delinquent on the lesser included offense of involuntary manslaughter because he acted in a reckless manner.

The trial court made the following findings of fact and conclusions of law with regard to the charge of voluntary manslaughter:

From this testimony we have made the following findings of fact: No. 1, that Richard Hillman was killed by two pistol shots; No. 2, that Christopher Smith fired the shots that killed Richard Hillman; No. 3, that the juvenile was at his home at the time of the shooting; No. 4, that the juvenile testified that he was in fear of Richard Hillman injuring him to the extent that he, the juvenile, would be a vegetable; No. 5, the decedent was 60 pounds heavier than the juvenile and the juvenile had grounds for feeling threatened and being fearful of the decedent.
Conclusions of law: The juvenile used the deadly weapon on a vital part of the decedent, Richard Hillman; Two, the juvenile claims self-defense as justification; Three, the burden was on the Commonwealth to prove beyond a reasonable doubt that the juvenile was not acting in self-defense; Four, a reasonable doubt existed that the juvenile was not acting in self-defense; Five, the juvenile, being at home, had no duty to retreat; Six, the juvenile had reasonable grounds to use force for self-protection; Seven, the juvenile, Christopher Smith, was justified in killing Richard Hillman for self-protection.

(H.T., 12/20/89, pp. 8-9, emphasis added).

Since we have detailed in length the trial judge’s conclusions of law, findings of fact and ultimate disposition and his rationale for the disposition, our role as an appellate court is simply to determine if the court made an appropriate decision within his discretion. We believe the trial court committed reversible error and the only remedy under the circumstances of this case is to vacate the dispositional Order and discharge appellant.

Appellant argues that the court, without foundation, ruled, after finding appellant delinquent on the charge of involuntary manslaughter, that he was in need of treatment, supervision and rehabilitation. Since the only exception to the necessity for such a finding is where “evidence of the commission of acts which constitute a felony shall be sufficient to sustain a finding that the child is in need of treatment, supervision or rehabilitation,” 42 Pa.C.S. § 6341(b), the argument has substantial merit. Here, the child was without blemish prior to this tragic incident; he was a model student and class president. All evaluations and recommendations by court-appointed experts were to the effect he was not in need of treatment, supervision or rehabilitation, but required counseling to help him deal with the tragic consequences of having taken another’s life. It appears that the court’s conclusion was unsupported by the evidence.

The more fundamental error by the trial court, as argued by appellant, was in making mutually exclusive findings of law and fact that the homicide was justified in order for appellant to protect himself and at the same time finding he acted recklessly. Key to this finding is the state of mind of the actor. In Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977), the Supreme Court held the state of mind which characterizes involuntary manslaughter is not malicious, it is referred to as “criminal negligence” and it is evidenced by acts, whether lawful or unlawful, done in a “reckless or grossly negligent” manner as those terms are defined. See 18 Pa.C.S. § 2504. In Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977), the Supreme Court held that under the Crimes Code, murder, voluntary manslaughter and involuntary manslaughter are all classifications of the crime of criminal homicide, 18 Pa.C.S. § 2501. The essential element necessary to sustain a murder conviction which distinguishes murder from involuntary manslaughter is the state of mind of malice. Id., 474 Pa. at 462, 378 A.2d at 1206. Thus, when malice is based on an intent to kill, as exhibited by consciously disregarding an unjustified and extremely high risk that the actions might cause death or serious bodily harm, Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975), the recklessness or gross negligence which would support an involuntary manslaughter conviction constitutes a “lesser kind of culpability,” Model Penal Code § 1.07(4)(c), than the malice necessary to support a murder conviction. In the latter, the actor consciously disregards, or in gross deviation from a standard of reasonable care, fails to perceive a substantial and unjustifiable risk that his action might cause death or serious bodily injury. A plurality decision, Garcia, supra, holds it follows that when malice is based on the disregard of an extremely high risk of death or serious bodily harm involuntary manslaughter is a lesser included offense of murder.

The trial court, in a juvenile case, is the finder of fact and, as such, substitutes for the jury in an adjudication of delinquency. Conversely, the trial judge must explain his decision in order to establish for appellate review that his findings of fact and conclusions of law, supported by the evidence, justify the adjudication. In a jury trial, the same function is served by the court’s instructions to the jury, and by a jury verdict consistent with the charge and supported by the evidence. While we do not have the same opportunity with a jury to evaluate its findings, as we do here with the findings articulated by a trial judge, the jury is presumed to have acted within the legal parameters established by the court and with a proper evaluation and weighing of the evidence.

Since voluntary manslaughter and involuntary manslaughter are lesser included offenses of murder and each is at a different point on the continuum of culpability, from the highest being murder to the least being involuntary manslaughter, see Polimeni and Garcia, supra, it necessarily follows evidence that would support any degree of homicide is sufficient to support a finding of involuntary homicide. Had the trial court found, without more, the evidence was sufficient to support a criminal homicide but only because the homicide was inflicted by the reckless or grossly negligent action of the appellant, it would have presented a stronger case for affirmance, although it would have had to pass the additional test provided by the Juvenile Act, 42 Pa.C.S. 6341(b), requiring treatment, supervision or rehabilitation. However, the trial court first made an unequivocal and firm finding that the appellant “was justified in killing Richard Hillman for self protection. (H.T., p. 9.) In making this finding, which was fully supported by the evidence, it is implicit that the Commonwealth failed to carry its burden of proving beyond a reasonable doubt the homicide was not a justifiable act of self-defense. Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983). See Commonwealth v. Patricia Ann Carbone, 524 Pa. 551, 574 A.2d 584 (1990).

The court, in applying a different set of findings and conclusions to the same facts and evidence, thereafter found the shooting to be grossly negligent and reckless, thereby making a determination that appellant was guilty of involuntary manslaughter, which was irreconcilably in conflict with the previous finding of justifiable homicide. In evaluating the proof required to establish a particular degree of homicide, it becomes readily apparent the elements required in the proof of one degree of homicide force the trial judge to exclude a different level of homicide. As an example, malice and self-defense are mutually exclusive and evidence which was sufficient to support an inference of malice ordinarily would bar the court from examining a claim based on self-defense. See Carbone, supra; Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978); Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978); Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989).

When evidence at trial indicates the defense of self-defense, the burden is on the Commonwealth to prove beyond a reasonable doubt the killing was not in self-defense (in a voluntary manslaughter case). Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975). At this point, the trial court could not pursue the guilt or delinquency of appellant further as a finding of justifiable homicide is mutually exclusive of a finding of involuntary homicide. Voluntary manslaughter is distinguished from murder in that voluntary manslaughter is an intentional killing committed without malice, whereas malice is an essential element of murder. Heatherington, supra. To a lesser extent as discussed above, the malice which may be inferred or implied in a murder case may likewise be implied in an involuntary manslaughter case, resulting in lesser culpability but nonetheless a finding of guilt. When self-defense is the defense, the Commonwealth must exclude self-defense beyond a reasonable doubt as self-defense negates the element of malice. When justification is established and self-defense has not been rebutted beyond a reasonable doubt by the Commonwealth, a jury, or the court without a jury, cannot find both malice and self-defense to be legally established in a murder prosecution when, in fact, the two are mutually exclusive. Heatherington, supra, 477 Pa. at 569, 385 A.2d at 342. The same reasoning must apply in relation to involuntary manslaughter when a claim of justification or self-defense is established. Self-defense, if justifiable, is a complete defense to any criminal homicide, whether it be murder, third degree murder, voluntary manslaughter or involuntary manslaughter. The self-defense finding negates all elements of a homicide because the use of deadly force is justified under the conditions which warrant a finding of self-defense. A trial judge is, therefore, precluded from finding, on multiple counts, that a homicide is justified on one count, but that the homicide was not justified because of gross negligence or recklessness on a lesser count, such as involuntary manslaughter. Since the findings are mutually exclusive, and once self-defense is established, the only disposition permitted, regardless of the degree of the homicide, is discharge.

For the above reasons, we hereby reverse the adjudication of delinquency for involuntary manslaughter and discharge the appellant.

Jurisdiction relinquished.

CAVANAUGH, J., concurs in the result.

      . For reasons discussed below, we have ascertained that the date of the final Order is May 1, 1990.

      . 18 Pa.C.S.A. § 2504(a).

      . If we were to treat the court’s action as a nullity since it acted upon an untimely motion by appellant, the net effect would be to require us to quash this appeal and substantially delay consideration of the merits of this case, pending a habeas corpus action. See In the Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977).

      . “Recklessly” is defined in 18 Pa.C.S. § 302(b)(3):
      “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, is disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.”
      “Negligently” is defined in 18 Pa.C.S. § 302(b)(4):
      “A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation."
      The Crimes Code definitions of the two types of manslaughter are substantially the same as under prior law. See Commonwealth v. Moore, 463 Pa. 317, 330, n. 15, 344 A.2d 850, 857, n. 15 (1975), concurring opinion of ROBERTS, J.).