[J-73-2021] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 7 WAP 2021 : Appellee : Appeal from the Order of the : Superior Court entered July 29, : 2020 at No. 1873 WDA 2019, v. : reversing the Order of the Court of : Common Pleas of Indiana County : entered November 14, 2019 at No. BRADY COLLIN DISTEFANO, : CP-32-CR-0000416-2017 and : remanding. Appellant : : SUBMITTED: October 25, 2021
OPINION
CHIEF JUSTICE BAER DECIDED: DECEMBER 22, 2021 In February of 2017, Caleb Zweig (“Zweig”) died after a brief but tragic interaction
with his college fraternity brother, Brady DiStefano (“Appellant”). Appellant initially was
charged with aggravated assault and criminal homicide due to this encounter; however,
the criminal homicide charge later was dismissed as the Commonwealth failed to produce
prima facie evidence to support it. In response to Appellant’s subsequent pretrial motion,
the trial court entered an order precluding the Commonwealth from presenting at
Appellant’s trial any evidence suggesting that Appellant caused Zweig’s death. The
Commonwealth appealed that order to the Superior Court, which reversed the trial court’s
order.
This Court granted allowance of appeal to determine whether the Superior Court
misapplied the appellate court standard for reviewing trial court evidentiary rulings. After careful consideration, we respectfully conclude that the Superior Court misapplied the
relevant standard of review in reversing the trial court’s order. Thus, for the reasons that
follow, we vacate the Superior Court’s judgment, reinstate the trial court’s order, and
remand for further proceedings consistent with this Opinion.
I. Background
In February of 2017, the Commonwealth charged Appellant with criminal homicide
and aggravated assault in connection with the death of Zweig. On April 26, 2017, a
magisterial district judge (“MDJ”) presided over Appellant’s preliminary hearing. The first
witness to testify at that hearing was Trevor King (“King”). King testified, in relevant part,
as follows.
King, Zweig, and Appellant were students at Indiana University of Pennsylvania
and fraternity brothers. At approximately 10:00 p.m. on February 3, 2017, King arrived at
an off-campus party. About 45 minutes later, Zweig informed King that Appellant was
intoxicated and needed to be taken home. Shortly thereafter, the three fraternity brothers
left the party and headed toward the residences of Zweig and Appellant. According to
King, both Zweig and Appellant were intoxicated; however, Zweig “was not nearly as bad”
as Appellant. N.T., 4/26/2017, at 7.
King stated that he walked slightly in front of Zweig and Appellant, when he heard
the two “bickering a little bit but nothing out of the ordinary.” Id. at 6. At that point, King
turned around and observed Zweig and Appellant facing each other with their chests
puffed out as they began “poking each other.” Id. at 7-8. King told the two men to stop,
turned around, and began to walk again. A few seconds later, King heard what he
described as a “scuffle,” which caused him to turn around again. Id. at 8.
King testified that, when he turned around, he saw Zweig on his back on the
pavement. Appellant was on his knees with his back toward King, while kneeling over
[J-73-2021] - 2 Zweig. King stated that Appellant’s hands were on Zweig’s “chest area,” though King was
not entirely sure where Appellant placed his hands because he “didn’t really see.” Id.
King noted that Appellant could not have had his hands on Zweig for more than 5 or 6
seconds. Id. at 31. King then pulled Appellant off Zweig, separating the two.
According to King, several persons assisted him with moving Zweig to a nearby
grass area. Zweig was unconscious and breathing with “weird noises coming from his
throat.” Id. at 9. Shortly after they moved Zweig, someone called 911, and an ambulance
arrived a few minutes later. At some point, Appellant left the scene, and after the
ambulance arrived, King went back to the house from which the three had left earlier,
where he found Appellant. King noticed that Appellant had a scratch on his face and then
escorted Appellant to his residence. The next morning, King was informed by a friend
that Zweig had died over night.
The next witness to testify at the preliminary hearing was Ashley Zezulak, M.D.
(“Dr. Zezulak”), the forensic pathologist who performed Zweig’s autopsy. Dr. Zezulak
testified that she discovered a “scalp hemorrhage” on Zweig’s head that was not large
enough to have been the cause of his death. Id. at 52. Indeed, the doctor stated that her
examination of Zweig uncovered nothing remarkable. Id. at 50. Dr. Zezulak explained
that she found no physical signs that Zweig had been choked or suffered chest
compression. Id. at 52. Notwithstanding this lack of physical evidence, the doctor
expressed an uncertain opinion that Zweig died of “[a]sphyxiation, secondary to
presumed chokehold and chest compression.” Id. Dr. Zezulak stated that her opinion
was uncertain because it arose from the investigation into Zweig’s death, not from
anything that she discovered during the autopsy. In fact, the doctor remarked that she
“didn’t find any significant anatomical findings during the autopsy.” Id. at 51. Thus, the
[J-73-2021] - 3 doctor conceded that her cause-of-death determination was not based upon the autopsy
but, rather, “solely on what investigators told [her.]”1 Id. at 57.
The MDJ concluded that the Commonwealth presented a prima facie case for both
aggravated assault and criminal homicide. Appellant subsequently filed an omnibus
pretrial motion, which included a petition for a writ of habeas corpus. As to that petition,
Appellant asserted that the “evidence at the preliminary hearing did not suffice to state a
prima facie case against [Appellant.]” Omnibus Pretrial Motion, 9/1/2017, at ¶5. The trial
court agreed with Appellant, and on November 13, 2017, the court entered an order
dismissing both of Appellant’s charges. The Commonwealth appealed the trial court’s
order to the Superior Court, which affirmed in part, reversed in part, and remanded for
further proceedings. Commonwealth v. DiStefano, 2018 WL 5076959 (Pa. Super. filed
10/18/2018) (unpublished memorandum) (“DiStefano I”). Specifically, the Superior Court
held that the trial court correctly concluded that the Commonwealth failed to present
sufficient evidence to establish a prima facie case of criminal homicide against Appellant
but that the court erred in finding that the Commonwealth failed to present a prima facie
case of aggravated assault against Appellant.
On remand, Appellant filed a motion in limine. In pertinent part, Appellant asked
the trial court to preclude the Commonwealth from presenting at his trial any evidence
regarding Zweig’s death. In making this request, Appellant highlighted that the homicide
charge had been dismissed, rendering Zweig’s death irrelevant to the prosecution of the
aggravated assault charge. Appellant further submitted that, to the extent that evidence
of Zweig’s death is somehow relevant to the aggravated assault charge, “its probative
value is outweighed by the danger of one or more of [the following:] unfair prejudice,
1 The final witness to testify at the preliminary hearing was John Eric Sherf (“Detective Sherf”), a detective with the Indiana Borough Police Department. Detective Sherf’s testimony is irrelevant to the instant appeal.
[J-73-2021] - 4 confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Motion In Limine, 8/22/2019, at ¶8.
The trial court reserved ruling on this issue, causing Appellant to renew his motion
in limine on November 8, 2019. On November 14, 2019, the trial court entered an order
granting in part and denying in part Appellant’s motion. The court stated that it would
permit the Commonwealth to present evidence that Zweig is deceased “to explain to the
jury his absence at trial and why the expert testimony from a forensic pathologist is being
presented.” Trial Court Order, 11/14/2019, at ¶3. However, the court ruled that, because
it dismissed the criminal homicide charge, “no evidence shall be permitted to prove that
[Appellant] caused [Zweig’s] death.” Id.
Later, the trial court authored an opinion elaborating on the rationale underlying its
November 14th order. Trial Court Opinion, 2/4/2020. In so doing, the court observed that,
after the criminal homicide charge was dismissed, the prosecution did not present any
additional evidence supporting a causal connection between Appellant’s actions and
Zweig’s death. Id. at 4. Concerning the relevance of evidence relating to Zweig’s death,
the court reiterated that it is probative insomuch as the evidence explains why Zweig will
not be present at trial and why the expert testimony is from a forensic pathologist. In the
court’s view, the probative value of this narrow type of evidence outweighed prejudice to
Appellant, and therefore, the evidence is admissible for this purpose. Id. at 4-5.
Regarding the admissibility of evidence as to the cause of Zweig’s death, the court
submitted that any probative value of this evidence was outweighed by unfair prejudice
to Appellant. Id. at 5. The court highlighted that, in her preliminary hearing testimony,
Dr. Zezulak was unable to state definitively how Zweig died, and she specifically testified
that she found no physical evidence of trauma that would have been fatal to Zweig. The
court opined that this reality, “along with other testimony, failed to establish that
[J-73-2021] - 5 [Appellant] caused Zweig’s death, and led to the dismissal of the criminal homicide
charges.” Id. Thus, in the court’s view, “it would be highly prejudicial to [Appellant] to
allow the Commonwealth to suggest that his actions in any way caused Zweig’s death[.]”
Id.
II. Superior Court Opinion
The Commonwealth yet again appealed to the Superior Court, this time arguing
that the trial court abused its discretion in finding any evidence concerning the causation
of the Zweig’s death to be irrelevant and unduly prejudicial. The Superior Court agreed
with the Commonwealth, reversed the trial court’s order, and remanded for further
proceedings. Commonwealth v. DiStefano, 236 A.3d 93 (Pa. Super. 2020) (“DiStefano
II”).
In reaching this result, the Superior Court noted that the Commonwealth will be
attempting to prosecute Appellant for aggravated assault under Subsection 2702(a)(1) of
the Crimes Code, which provides, “A person is guilty of aggravated assault if he . . .
attempts to cause serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme indifference to the
value of human life[.]” 18 Pa.C.S. § 2702(a)(1). The court also observed that the Crimes
Code defines “Serious bodily injury” as “[b]odily injury which creates a substantial risk
of death or which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” DiStefano II, 236 A.3d at 99-
100 (emphasis in original) (quoting 18 Pa.C.S. § 2301). The court also emphasized that
it has previously held that, to prove that a defendant committed aggravated assault, the
Commonwealth must demonstrate that the defendant acted recklessly by presenting
evidence that the defendant performed the offensive act “under circumstances which
[J-73-2021] - 6 almost assure that injury or death will ensue.” Id. at 100 (quoting Commonwealth v.
Patrick, 933 A.2d 1043, 1046 (Pa.Super. 2007) (en banc)).
Based upon its understanding of the law, the Superior Court agreed with the
Commonwealth that evidence related to the causation of the Zweig’s death is relevant to
allow the factfinder to determine whether Appellant: “(1) caused [Zweig] serious bodily
injury that created a ‘substantial risk of death;’ and (2) acted with recklessness in that his
assault of [Zweig] was ‘performed under circumstances which almost assure[d] that injury
or death [would] ensue.’” Id. (citations omitted). The Superior Court then purported to
disagree with the trial court's finding that it would be “highly prejudicial” to Appellant to
permit Dr. Zezulak to offer an expert opinion on the cause of the Zweig’s death. In this
regard, the intermediate court stated that the courts of this Commonwealth “have
reasoned that expert testimony is not rendered inadmissible simply because the expert’s
data or examination results are inconclusive.” Id. (citing, inter alia, Commonwealth v.
Minerd, 753 A.2d 225 (Pa. 2000)).
The court ultimately concluded that Dr. Zezulak’s opinion as to the cause of
Zweig’s death is admissible at Appellant’s trial. The court explained that the jury will be
charged with weighing that evidence, as well as King’s testimony regarding his
observations of the interaction between Appellant and Zweig. Because the Superior
Court believed that the trial court abused its discretion in this regard, it reversed the trial
court’s order granting in part Appellant’s motion in limine and remanded for further
proceedings.
III. Issue on Appeal
Appellant petitioned this Court for allowance of appeal, which we granted to
consider the following question, as phrased by Appellant:
Did the Superior Court err in reversing the order entered November 14, 2019, by departing from [the] standard of review for the admission or
[J-73-2021] - 7 exclusion of evidence and so conflicted with binding precedent inasmuch as the Superior Court engaged in a de novo examination of the challenged evidence rather than reviewing the [t]rial [c]ourt’s exercise of discretion? Commonwealth v. DiStefano, 249 A.3d 504 (Pa. 2021).2
IV. Parties’ Arguments
A. Appellant’s Argument
Appellant reminds this Court that evidentiary rulings are committed to the sound
discretion of the trial court and that appellate courts should not review these decisions de
novo. Appellant highlights this Court’s well-settled standards for appellate review of
evidentiary decisions. In particular, the complaining party has a heavy burden to prove
that a trial court’s evidentiary decision was made in error; “it is not sufficient to persuade
the appellate court that it might have reached a different conclusion if, in the first instance,
charged with the duty imposed below[.]” Appellant’s Brief at 18 (quoting Paden v. Baker
Concrete Construction, 658 A.2d 341, 343 (Pa. 1995)). Indeed, Appellant reiterates the
oft-quoted legal principle that an “abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record, discretion is abused.” Id.
The crux of Appellant’s argument to this Court is that the Superior Court failed to
apply dutifully its standard of review. Rather, Appellant contends, the Superior Court
erroneously substituted its judgment for that of the trial court by ruling de novo on his
motion in limine. As evidence of this contention, Appellant observes, inter alia, that the
2“Whether the Superior Court properly applied the ‘abuse of discretion’ standard of review presents this Court with a question of law. Accordingly, our scope of review is plenary, and our standard of review is de novo.” Commonwealth v. Gill, 206 A.3d 459, 466 n.6 (Pa. 2019).
[J-73-2021] - 8 Superior Court merely concluded “that the lower court abused its discretion in excluding
evidence related to the causation of [Zweig’s] death.” DiStefano II, 236 A.3d at 101.
Appellant submits that the Superior Court did not specify how the trial court abused its
discretion, evincing the fact that the intermediate court paid lip service to its standard of
review.
According to Appellant, the trial court carefully examined the relevancy of evidence
that Appellant caused Zweig’s death and reasonably concluded that any probative value
of such evidence was outweighed by the unfair prejudice it would cause Appellant. In
Appellant’s view, had the Superior Court applied the appropriate standard of review, it
would have properly determined that the trial court did not abuse its discretion.3 For these
reasons, Appellant asks the Court to reinstate the trial court’s order granting in part his
motion in limine.
B. Commonwealth’s Argument
Contrary to Appellant’s position, the Commonwealth insists that the Superior Court
correctly described and applied the appellate court standard for reviewing evidentiary
rulings. The Commonwealth suggests that the Superior Court supported its conclusion
(i.e., that the trial court abused its discretion by precluding evidence that Appellant caused
Zweig’s death,) by evaluating the trial court’s relevancy analysis. In the Commonwealth’s
opinion, the Superior Court thoroughly demonstrated how the trial court misapplied the
law in deciding to exclude evidence regarding the cause of Zweig’s death. Thus, the
Commonwealth maintains that the Superior Court did not, as Appellant suggests, merely
substitute its judgment for that of the trial court.
3 Appellant dedicates a portion of his brief to arguing that the Superior Court failed to adhere to the law-of-the-case doctrine. We, however, did not grant allowance of appeal to address that doctrine.
[J-73-2021] - 9 Indeed, the “Commonwealth vehemently submits that the Superior Court did not
engage in de novo review of evidence by simply disagreeing with the conclusion of the
trial court[.]” Commonwealth’s Brief at 17 (emphasis in original). Rather, the
Commonwealth contends, the Superior Court provided a “thorough analysis of the
relevancy, probative value, and possible prejudicial nature of such evidence and how [the]
evidence relates to 18 Pa.C.S.A. 2702(a)(1) and 18 Pa.C.S.A. 2301.” Id.
Next, the Commonwealth presents a lengthy argument regarding the merits of
Appellant’s motion in limine. The Commonwealth’s argument substantially mirrors the
rationale that the Superior Court employed in reversing the trial court’s order.
Referencing the statutory definitions of “aggravated assault” and “serious bodily injury,”
the Commonwealth argues that it must present to the jury evidence that Appellant
engaged in conduct or actions that caused a bodily injury to Zweig that not only created
a substantial risk of death but, in fact, caused Zweig’s death. Stated succinctly, the
Commonwealth believes that the Superior Court correctly reversed the trial court’s order
because evidence that Appellant caused Zweig’s death is relevant to prove him guilty of
aggravated assault and because that evidence does not unfairly prejudice Appellant.
V. Analysis
It is well settled that evidentiary rulings are within the sound discretion of trial
courts. See, e.g., Commonwealth v. Laird, 988 A.2d 618, 636 (Pa. 2010) (explaining that
“the decision to admit or exclude evidence is committed to the trial court’s sound
discretion”). Accordingly, when a party adverse to a trial court’s evidentiary ruling seeks
appellate review of that determination, that party carries a heavy burden to demonstrate
that the trial court abused its discretion. Commonwealth v. Norton, 201 A.3d 112, 120
(Pa. 2019). “An appellant cannot meet this burden by simply persuading an appellate
court that it may have reached a different conclusion than that reached by the trial court;
[J-73-2021] - 10 rather, to overcome this heavy burden, the appellant must demonstrate that the trial court
actually abused its discretionary power.” Id.
“Regarding the ‘abuse of discretion’ standard of review, this Court has explained
that the term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach
a dispassionate conclusion, within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the [trial] judge.” Commonwealth v. Gill, 206 A.3d
459, 466 (Pa. 2019) (internal quotation marks and citation omitted). “Absent an abuse of
that discretion, an appellate court should not disturb a trial court's discretionary ruling.”
Id. “An appellate court will not find an abuse of discretion based on a mere error of
judgment, but rather . . . where the [trial] court has reached a conclusion which overrides
or misapplies the law, or where the judgment exercised is manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will.” Id. at 466-67.
“Importantly, an appellate court should not find that a trial court abused its
discretion merely because the appellate court disagrees with the trial court’s conclusion.”
Id. at 467. “Indeed, when reviewing the trial court’s exercise of discretion, it is improper
for an appellate court to ‘step[ ] into the shoes’ of the trial judge and review the evidence
de novo.” Id. (internal quotation marks omitted). In other words, an appellate court may
not disturb a trial court’s discretionary ruling by substituting its own judgment for that of
the trial court.” Id. (internal quotation marks omitted).
Here, the trial court exercised its discretion and ruled that the probative value of
evidence suggesting that Appellant caused Zweig’s death was outweighed by unfair
prejudice to Appellant. As noted above, the court supported its decision by highlighting
that, in her preliminary hearing testimony, Dr. Zezulak was unable to state definitively how
Zweig died, and she explicitly stated that she found no physical evidence of trauma that
would have been fatal to Zweig. The court also noted that the Commonwealth failed to
[J-73-2021] - 11 produce any other evidence that demonstrated that Appellant’s actions were the actual
cause of Zweig’s death.
On appeal, the Superior Court noted that it reviews evidentiary rulings for an abuse
of discretion, DiStefano II, 236 A.3d at 98, and ultimately concluded that the trial court
abused its discretion, id. at 101. However, the Superior Court never described the
particulars of the “abuse of discretion” standard nor did the intermediate court specifically
explain how the trial court abused its discretion. Instead, the Superior Court stated its
disagreement with “the trial court’s finding that it would be highly prejudicial to the defense
to allow Dr. Zezulak to offer an expert opinion on causation of the victim’s death.” Id. at
100.
Respectfully, as an initial matter, the Superior Court mischaracterized the trial
court’s ultimate ruling. At one point in its opinion, the trial court did state that “it would be
highly prejudicial to [Appellant] to allow the Commonwealth to suggest that his actions in
any way caused Zweig’s death[.]” Trial Court Opinion, 2/4/2020, at 5. However, the trial
court explicitly held that it would not permit the admission of any evidence that Appellant
caused Zweig’s death because “any probative value [of the evidence] was outweighed by
unfair prejudice.” Trial Court Opinion, 2/4/2020, at 5. In other words, the trial court’s
ruling closely tracked Pennsylvania Rule of Evidence 403, which provides that a trial court
“may exclude relevant evidence if its probative value is outweighed by a danger of[, inter
alia,] unfair prejudice[.]” Pa.R.E. 403.
The Superior Court never directly addressed whether this determination
constituted an abuse of discretion. Instead, as noted, the court disagreed with the
concept that Dr. Zezulak’s testimony concerning Zweig’s cause of death is not “highly
prejudicial” to Appellant. This disagreement misses the mark of addressing the trial
court’s actual conclusion, and it simply is not supported by the record, which clarifies that,
[J-73-2021] - 12 while Dr. Zezulak would testify that Appellant caused Zweig’s death by strangling or
otherwise asphyxiating him, this testimony would be premised entirely upon what the
investigators told the doctor. The record further reflects, as detailed supra, that Dr.
Zezulak also would testify that she found no physical signs to support this conclusion.
As the Superior Court concluded in DeStefano I, the dubious nature of this
evidence led to the dismissal of the criminal homicide charges lodged against Appellant.
DiStefano I, 2018 WL 5076959, at *7. We simply fail to see how the Superior Court
reached the conclusion that this questionable testimony will not be “highly prejudicial” to
Appellant, especially when he is not being tried for homicide. Indeed, it is difficult to
contemplate a type of evidence that would be more prejudicial to a criminal defendant
than evidence that he caused the death of the alleged victim of aggravated assault for
which he stands trial.
Thus, after a review of the record, the lower courts’ opinions and the parties’ briefs,
we conclude that the Superior Court did not properly apply the “abuse of discretion”
standard. In reaching this conclusion, we observe that it is unclear from the Superior
Court’s opinion whether the intermediate court reviewed the trial court’s actual holding to
determine whether the trial court’s evidentiary ruling was the product of a misapplication
of the law or whether the trial court’s judgment was manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will. Further, as we discuss in detail supra, we find that
the proper application of the “abuse of discretion” standard of review leads us to vacate
the Superior Court’s judgment and to reinstate the trial court’s order.
As we noted above, Pennsylvania Rule of Evidence 403 allows a trial court, in its
discretion, to exclude relevant evidence if its probative value is outweighed by a danger
of unfair prejudice to the defendant. Pa.R.E. 403. The trial court dutifully applied this
rule, knowing full well the charge that Appellant faced, aggravated assault, and the charge
[J-73-2021] - 13 that Appellant no longer faced, criminal homicide, due to insufficient evidence.
Referencing the record as it currently exists, the trial court observed that the
Commonwealth failed to present any evidence, save for Dr. Zezulak’s tenuous testimony,
supporting a causal connection between Appellant’s actions and Zweig’s death. With
these circumstances in mind, the court weighed the probative value of the causation
evidence against the danger of the evidence creating unfair prejudice to Appellant, and
concluded that the unfair prejudice of the evidence outweighed its probative value.
Because the trial court properly applied Rule 403, its evidentiary ruling was not the
product of a misapplication of the law. Further, the court’s view was not manifestly
unreasonable; indeed, it was reasonable under the circumstances presented. Lastly,
there is nothing in the certified record or the trial court’s opinion that would suggest that
the court’s ruling was the result of partiality, prejudice, or ill-will. Consequently, we
conclude that the trial court did not abuse its discretion by holding that the Commonwealth
cannot present any evidence at trial which suggests that Appellant caused Zweig’s death.
VI. Conclusion
A fundamental tenet of our judicial system is that trial courts are empowered with
the sound discretion to make difficult decisions regarding the admission and exclusion of
evidence at trials. While this power certainly is not absolute, our appellate courts must
adhere to the principle that they cannot interfere with these discretionary decisions unless
an abuse of discretion occurs. In applying this principle, the appellate courts should
remain mindful that they do not address these evidentiary issues de novo and they may
not substitute their judgment for that of trial courts.
In the instant matter, the Superior Court misapplied the “abuse of discretion”
standard of review, as detailed above. In addition, our application of that standard
demonstrates that the trial court reasonably exercised its discretion by excluding from trial
[J-73-2021] - 14 any evidence that Appellant caused Zweig’s death. For these reasons, we vacate the
Superior Court’s judgment, reinstate the trial court’s order, and remand to the trial court
for proceedings consistent with this Opinion.
Justices Saylor, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.
[J-73-2021] - 15