author: POPOVICH, Judge. JOHNSON, Judge,

text:
    667 A.2d 1123
    COMMONWEALTH of Pennsylvania, Appellant, v. Samuel ENGLISH, Appellee. COMMONWEALTH of Pennsylvania, Appellee, v. Samuel ENGLISH, Appellant.
    Superior Court of Pennsylvania.
    Argued June 15, 1995.
    Filed Oct. 19, 1995.
    Reargument Denied Dec. 28, 1995.

      Gregory A. Stuck, Assistant District Attorney, Sunbury, for Commonwealth.
    Jeffrey J. Crossland, Lewisburg, for Samuel English.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge.

This case involves cross-appeals from the order of the Court of Common Pleas of Northumberland County granting a motion for a new trial and denying an arrest of judgment. We reverse in part and affirm in part.

The facts establish that on the 8th day of March, 1991, Sabrina Miller was phoned by her estranged husband that he would be picking up their son for visitation at 7:00 p.m. To avoid any conflict, Ms. Miller asked the appellant, who had fathered her second son (Ryan, aged 2 months) out of wedlock, to remove himself from the premises until after Mr. Miller’s departure. The appellant agreed and occupied himself at a neighborhood bar until a phone call was received to return at 8:00 p.m.

While at the bar, the appellant consumed 3-5 beers and some whiskey before leaving with two six packs of beer. Upon the appellant’s return, the minor-child Ryan was asleep on the couch. Ms. Miller had placed two blankets over one of the cushions and the child was resting there.

During the course of the evening, Ms. Miller consumed 1-2 beers and was awakened by Ryan’s crying at 3:00 a.m. The mother bathed, changed and fed the child before the two watched television and played. At approximately 5:00 a.m., Ms. Miller fell asleep on a reclining chair with Ryan fast asleep on top of her. At some point during the early morning hours of March 9th, Ms. Miller felt the child being lifted from her chest. The next thing she recalled was being startled by a phone ringing. Ms. Miller answered the phone and observed the appellant sleeping on the couch, face down and fully extended, so that his head was at one end and his legs (shins) were over the child’s quilt and angled up so that his feet were over the right armrest.

When Ms. Miller informed the appellant that the call was for him, he sat to the left of the couch and spoke to the caller. Ms. Miller asked where Ryan was located and was told by the appellant the baby was on the couch. The child was not visible to Ms. Miller until she removed the bed quilt on the couch. Ryan was lying on his stomach in the center of the cushion with his head facing away from the back of the couch — this was next to the right armrest and on the opposite side of the appellant’s resting place.

With Ryan’s failure to respond to his mother’s kiss, she became frightened and screamed that he was not breathing. The appellant gave the child “mouth to mouth” resuscitation while Ms. Miller dialed “911”. Within minutes, an emergency medical technician arrived, followed close behind by an ambulance. Cardiopulmonary resuscitation was continued by the technician before transporting the child to the hospital. The attending emergency room physician treated the child for one-half hour before pronouncing the child dead. The parents were advised that the physician attributed the cause of death to SIDS.

An autopsy was performed and a corner’s inquest was conducted in which the medical examiner believed that the death should be pursued as a criminal homicide — an “intentional” killing. A police investigation led to the appellant being charged -with the homicide, but the District Attorney listed the offense as involuntary manslaughter — a “grossly negligent or reckless” killing. A two-day jury trial resulted in the appellant’s conviction as charged. With the filing of post-trial motions, the court ordered a new trial on the ground that the “cumulative effect” of alleged errors committed by the Commonwealth prejudiced the appellant, but the request for an arrest of judgment was denied. Cross-appeals were filed challenging the order entered.

Initially, we examine whether the court below abused its discretion in granting a new trial on grounds that the Commonwealth asserts were waived by English. The court believed that the “interests of justice” required the grant of a new trial with the “cumulative effect of errors” committed during the course of trial.

The first alleged error, discernible from a reading of the court’s opinion as contributing cumulatively to prejudicing the appellant’s right to a fair trial, is a conversation overhead by Ms. Miller on the first floor of the courthouse during a recess in which two females purportedly engaged in the following; to-wit:

... one lady had said that she recognized [the defendant] from being in the paper with his charge that he’s serving for now. And the other woman had said that, yes, that she was just thinking about that.

N.T. 231. When Ms. Miller was asked if the two women were jurors, she “assumed” they were but she was not one hundred percent sure. In fact, she stated it was “possible” the two ladies were just observers in the courtroom because she did not recall whether either one wore an identifying juror button.

Out of an abundance of caution, the court offered the appellant the opportunity to voir dire the jury concerning the alleged communication and its knowledge of such an exchange. The defendant, after consulting with counsel, opted to forego any formal inquiry of the jurors and “proceed just as is,” notwithstanding the court’s admonition that the matter would be waived if not pursued at that stage of the case. The defendant, with “certainty,” asked to “proceed forward.” The court did so only to have the issue raised in post-verdict motions under the banner of prosecutorial misconduct “when this information was not made known to Defendant until almost 24 hours later, and after closing arguments....” to the prejudice of the defendant. See Paragraph 21.

It is axiomatic in this jurisdiction since Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) and its progeny that one must object to errors, improprieties or irregularities at the earliest possible stage of the criminal or civil adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.

Here, the defendant was given every opportunity to inquire into the sum and substance of the alleged out-of-court communication as either real or fanciful, substantive or baseless, but he elected to give up the occasion to delve into the subject in favor of proceeding to verdict. His choice having been made to forego inquiry of any possible jury taint cannot be resurrected in either the post-verdict or appellate format. Dilliplaine, supra; see also Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Disenchantment with or gambling on the jury’s verdict may not be cloaked in the guise of “prosecutorial misconduct” to avoid the rigors of the issue-preclusion rule of Dilliplaine, supra. Accordingly, the circumvention of the issue preservation rule mandates that the present issue of prosecutorial misconduct in not disclosing sooner possible jury taint be deemed waived for appellate purposes.

The second prong to the court’s finding of “cumulative effect of errors” fares no better. Specifically, the court holds that, in tandem with the waived voir dire of jury issue, “the potential prejudicial effect of the expert testimony offered by the Commonwealth ... require[s] that the Defendant be granted a new trial” to effectuate justice.

At trial, the Commonwealth’s expert (Dr. Wayne Ross) testified that the cause of death was cardio-pulmonary arrest due to complications of asphyxia. The expert also offered that bleeding on the lungs (petechial hemorrhages) and the thymus gland in the chest were indicative of insufficient oxygen brought on by a compression of the chest from a hand pushing down on the.back and head. This prompted Dr. Ross to opine that the child died with its face down, brought on by a combination of chest compression and suffocation not found in SIDS cases.

Moreover, the expert remarked on cross-examination that, as to the manner and method of death, “somebody ... probably put their hand over the back, put their hands on the back of the head, not in the front of the face, and took the face and put it in between the two cushions, and in that way suffocated [the baby] compressing the nose down in between and on one of the cushions.” N.T. 187. The Commonwealth objected to such testimony and at sidebar noted that the defendant was not indicted for the commission of an “intentional” killing, but the defense was leading the witness to that point. The court overruled the objection and permitted the defense to rebut testimony describing an intentional killing by the Commonwealth’s expert on direct examination. In the course of doing so, however, the expert opined that “somebody intentionally killed the child.” N.T. 190. He believed so even though he was aware that the defendant had been charged with only involuntary manslaughter.

The defendant requested that the expert’s testimony be stricken. The court took the matter under advisement and, prior to closing arguments, granted the request in so far as it struck the doctor’s opinion that the child’s death was an intentional act and the jury would be instructed accordingly. Nonetheless, after the court’s ruling but before instructing the jury, the defendant moved for a mistrial claiming that the jury’s exposure to such testimony was prejudicial, even though during trial the objection sought relief in the form of striking the testimony and not a mistrial. The court advised the defendant to consult with counsel before choosing to withdraw the mistrial motion. The defendant did so and informed the court that he did not wish to have his motion for mistrial considered.

Again, as with the voir dire issue, the defendant caused the mistrial claim to appear in post-verdict motions as court error in allowing the elicitation by the prosecution of Dr. Ross’ testimony of an intentional killing, the relief for such was a new trial. See Paragraphs 22 and 23.

The precepts enunciated by Dilliplaine, supra, are applicable here so that the appellant’s failure to preserve his mistrial objection, and instead opting to have the jury decide his fate despite exposure to Dr. Ross’ “intentional” killing observations, renders it waived for appellate review. Accordingly, having found no merit to any of the trial court’s “cumulative effect of errors” determination, the grant of a new trial is reversed. Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991); Beal v. Reading Co., 370 Pa. 45, 87 A.2d 214 (1952).

Next, we turn to the defendant’s contention that the evidence was insufficient and warranted his arrest of judgment motion. Since the motion challenges the sufficiency of the evidence, the test to be applied is “whether, accepting as true all of the Commonwealth’s evidence and all reasonable inferences therefrom, the evidence is sufficient to prove beyond a reasonable doubt that [the defendant] is guilty of the crime[ ] charged.” Commonwealth v. Morrison, 265 Pa.Super. 363, 401 A.2d 1348, 1351 (1979); Commonwealth v. Danner, 45 D. & C.3d 206, 207 (York Cty.1986).

Involuntary manslaughter is a crime which requires proof that the death of another was caused by the “reckless or grossly negligent” act of a defendant. 18 Pa.C.S.A. § 2504(a).

At bar, we have testimony that the defendant had consumed 3-5 beers and tasted a whiskey between 6:00-8:00 p.m. on the 8th of March, 1991. He brought two six packs of 12 025. beers to Ms. Miller’s apartment, 1-2 of which were ingested by Ms. Miller and only 2 or 3 cans remained within 48 hours of the minor-child’s death.

The sleeping arrangements were such that the defendant placed a 2-month-old baby at one end of a couch while he reclined on the other end. Yet, when the mother awoke, she found the defendant lying on the entire couch such that his legs extended over and on top of the sleeping area of the baby. The child was not breathing when found by the mother under the quilt covering the child and above which the defendant’s legs extended.

The Commonwealth’s medical expert testified that the child’s death was the-product of an object compressing against its back and head causing suffocation. Moreover, the expert testified "without objection by the defendant that he believed that the death was caused by an “intentional” act; to-wit: 1) the striations on the face of the child matched the pattern on the couch’s cushions; 2) “Mongolian spot” — usually found in SIDS cases above the lower pelvis sacral region — was not evident on Ryan; 3) blood spots on the child’s lungs consistent with suffocation; 4) expert opined that a child of 2 months could not have maneuvered its head into an area between the two cushions, which was consistent with the striations left on the child’s face and "visible during autopsy; and 5) the settlement of the blood in the body upon death (lividity and cyanosis) was consistent with the child’s body having been compressed against the cushion of the couch causing death by suffocation.

Given the defendant’s proximate position to the child on the couch, the fact that he had ingested alcohol prior to sleeping on the same unit as the child and no precautions were taken to provide for the safety of the baby in its vulnerable sleeping location are consistent with “a great departure from the standard of ordinary care, evidencing a disregard for human life or an indifference to the possible consequences of the actor’s conduct.” Commonwealth v. Agnew, 263 Pa.Super. 424, 398 A.2d 209, 211 (1979).

It was the defendant who moved the child from the embrace of his mother and placed him in a position on the couch which culminated in a suffocation death not symptomatic of SIDS. The autopsy showed that force was applied to the child’s body causing it to compress against the cushion of the couch and the defendant was observed with his legs over the child’s sleeping area immediately prior to finding him expired from asphyxia.

The volume of circumstantial evidence, albeit not individually sufficient to convict, when read in concert is sufficient to show that the defendant was the direct cause of the child’s death, whose behavior constituted a great departure from the standard of ordinary care called for in attending to an infant. Contrast Commonwealth v. Pennell, 9 D. & C.4th 241 (Potter Cty.1991); Danner, supra.

The jury heard all of the evidence and found sufficient proof of involuntary manslaughter. We have been presented with no argument to alter that verdict. In fact, upon remand, the initial verdict of the jury is to be reinstated and sentence to be imposed thereafter. Order granting a new trial is reversed; appeal of the same order denying arrest of judgment affirmed. Case remanded for reinstatement of verdict and sentence. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

While I agree with that portion of the Majority Opinion which affirms the trial court’s denial of the motion for an arrest of judgment, I am unable to agree that the trial court abused its discretion in granting a new trial. Accordingly, I must respectfully dissent.

The trial court determined that the interests of justice required the grant of a new trial due to the cumulative effect of errors at trial. Our supreme court has stated that “[a] trial court has an ‘immemorial right to grant a new trial, whenever, in its opinion, the justice of the particular case so requires.’ ” Commonwealth v. Powell, 527 Pa. 288, 293, 590 A.2d 1240, 1242 (1991), quoting March v. Philadelphia & West Chester Traction Co., 285 Pa. 413, 416, 132 A. 355, 357 (1926). Further,

[i]t is the trial judge’s review of the conditions and activity surrounding the trial which leaves him or her in the best position to make determinations regarding the fairness of the process and its outcome. It is apparent, therefore, [that] if a trial court determines that the process has been unfair or prejudicial, even where the prejudice arises from actions of the court, it may, in the exercise of its discretionary powers, grant a new trial “in the interest of justice.”

Id., 527 Pa. at 294, 590 A.2d at 1243. Recently, our supreme court, quoting Echon v. Pennsylvania Railroad Co., 365 Pa. 529, 534, 76 A.2d 175, 178 (1950), stated:

“When the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. ‘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.’ Mielcuszny et ux. v. Rosol, 317 Pa. 91, 93, 94, 176 A. 236 [ (1934)].”

In re Milton S. Hershey Medical Center, 535 Pa. 9, 13-14, 634 A.2d 159, 161 (1993); Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995).

Here, English, in his post-trial motions, asserted that he was entitled to a new trial based upon prosecutorial misconduct and the Commonwealth’s introduction of prejudicial evidence. The trial court found that although none of the trial errors were so prejudicial that they could not be cured by appropriate jury instructions, “the cumulative effect of these errors may have been to prejudice the jury against [English], thereby depriving him of a fair and impartial trial.... ” Footnote to Order, dated August 22, 1994, at 1. Specifically, the trial court took issue with the contradictory way in which the Commonwealth presented its case. The Commonwealth charged English with involuntary manslaughter, alleging that the child’s death occurred as a result of criminal recklessness or negligence. However, at trial, the Commonwealth’s expert, a forensic pathologist, testified that the child’s face was pushed into the sofa cushions by some “outside force.” N.T., November 18, 1993, at 173-74. Defense counsel lodged an objection, contending that such an assertion went completely beyond the charge of involuntary manslaughter and suggested, instead, that the child was intentionally suffocated. Id. The trial court overruled the objection. Id. at 177-78. On cross-examination, defense counsel questioned the forensic pathologist as to whether, in his opinion, “somebody” intentionally pressed the child’s face into the sofa cushions. Id. at 187. After the pathologist replied in the affirmative, the Commonwealth objected, claiming that such testimony went beyond the scope of the expert’s testimony presented during direct examination. Id. at 188. The court overruled the objection. Id. at 189. However, the following day, just prior to instructing the jury, the court directed the jury that the forensic pathologist’s testimony that the child’s death was an intentional act was stricken from the record. Id. at 226. The court further directed the jury to totally disregard such testimony. Id. In its Order, the trial court found that the introduction of evidence which suggested that the child was intentionally killed caused clear prejudice to English. Footnote to Order, supra, at 2. I agree. Given the fact that the jury did not receive the instruction to disregard this prejudicial evidence until the following day, I find no abuse of discretion in the court’s conclusion that, in the interests of justice, a new trial was required.

In addition, the child’s mother reported overhearing a conversation between two women who may have been jurors. One of the women stated that she recognized English from an item in the newspaper concerning a prior crime he had committed. The other woman responded that she had been thinking about that as well. N.T., supra, at 231. The court allowed English the opportunity to voir dire the jury, but he declined to do so. Id. at 244-45. In its Order, the court expressed concern that, despite English’s waiver of his right to voir dire the jury, “the jury may have been tainted to the extent that [English]’s conviction could [have been] based in part on prejudicial hearsay outside the record.” Footnote to Order, supra, at 3. Based upon this factor and the introduction of evidence which suggested that the child was intentionally killed, the court ordered a new trial.

The Majority concludes that the trial court abused its discretion in granting a new trial because English did not object to the trial errors or improprieties at the earliest possible stage of the proceedings. Majority op. at 574-75, 575-77. However, my research has not disclosed any authority for the proposition that the trial court is foreclosed from granting a new trial in the interests of justice based upon any action or inaction by defense counsel. In fact, our supreme court “has expressly approved of a trial court’s granting a new trial, sua sponte, for the promotion of justice, if sufficient cause exists.” Powell, supra, 527 Pa. at 293, 590 A.2d at 1242. See also Commonwealth v. Tyson, 535 Pa. 391, 635 A.2d 623 (1993) (trial court’s grant of post-conviction relief in the interests of justice was affirmed even though appellant’s issues were previously raised and decided on direct appeal). Therefore, based upon the above-stated standards, I find no abuse of discretion in the trial court’s grant of a new trial, and I would affirm the trial court order in its entirety. Hence, this dissent.

      . An order granting a new trial, albeit interlocutory, is appealable when a defendant claims, as here, that he is entitled to discharge. See Pa.R.App.P. 311(a)(5).

      . SIDS is an acronym for Sudden Infant Death Syndrome.

      . The court, without objection from either side, formulated the following question to be posed to each juror; to-wit;
      It's been brought to our attention that two women that may or may not be jurors in this trial were overhead talking about the defendant and/or this case. This conversation occurred on the lower floor yesterday around or after the luncheon recess and the discussion centered around whether one of them recognized the defendant from a picture in the paper and/or prior involvement in the criminal justice system.
      N.T. 242.

      . The new Pennsylvania Rules of Criminal Procedure are not applicable here since the determination of guilt occurred prior to January 1, 1994.

      . It is not implausible that the defendant, after consulting with counsel, believed that the evidence was not sufficient to convict or possible disclosure of his prior criminal conduct might surface during jury questioning, and chose to allow the jury as composed to decide the case. Such trial strategy cannot be equated with any claim of counsel’s ineffectiveness. See generally Commonwealth v. Watts, 319 Pa.Super. 179, 465 A.2d 1288 (1983).

      . From our review of the record there is not a scintilla of evidence to show that the prosecution, in regard to disclosing the out-of-court discovery of Ms. Miller, acted "intentionally” to provoke a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983).

      . Even if, arguendo, the issue were not waived, we note that the doctor’s discussion of facts indicative of an "intentional” killing (hands pushing against the child's back and head causing its face to be forced against or between cushions) went unabated. See, e.g., N.T. 159, 162, 168 & 170.
      The first objection lodged by the defendant was to the witness' opinion testimony that outside force caused the child’s head to move and striations to appear on the face matching the couch-covering, which was after testimony had been offered by Dr. Ross implying the same. Moreover, on cross-examination the defendant continued to question the doctor as to the foundation for his "outside force” theory causing the child's suffocation. Thus, the defendant cannot be heard to complain now to evidence admitted without objection and exploited by the defense to assail the doctor’s believability on the manner and method of the minor-child’s death. See generally Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981).
      The trial court's citation to Commonwealth v. Kramer, 389 Pa.Super. 136, 566 A.2d 882 (1989), to substantiate its "cumulative effect of errors” theory to support its grant of a new trial is misplaced. The errors found to warrant a new trial in Kramer were asserted by the defendant at trial in the form of mistrial motions initially denied but later reversed at the post-verdict stage by the trial court.
      Here, the defendant waived the allegations of error after consulting with his attorney during the midst of trial, each of which could have been addressed at that point and not await the outcome of the jury's verdict to raise the claims.
      We find that trial strategy played a role in the defendant's waiver of the now claimed trial errors in the hope of being found not guilty. He will not now be heard to claim entitlement to review of matters withdrawn from trial inquiry and possible rectification before the close of the case. To allow such a post hac approach would be to reward the defendant for his inaction and award him two bites at the proverbial guilt-determining-process apple.
      We wish to respond to the trial court’s characterization of the defendant's refusal to pursue a mistrial for the doctor’s “intentional killing” testimony as a “Hobson’s choice,” since he might expose himself to the prosecution amending the indictment to charge first degree murder instead of involuntary manslaughter. This position falters under the light of scrutiny.
      To explicate, the defendant, having chosen to have the jury decide his fate and despite the doctor's comments on the manner and method of ■ death (outside force applied to the child’s back and head contributed to suffocation), has the benefit of knowing the outcome of the verdict and would be availed a new trial to obtain a second attempt at vindicating himself. However, the defendant has no greater assurance at this point (as at the trial level) that the prosecution would not seek a first degree murder charge if the award of a new trial were upheld.
      If the “Hobson’s choice” existed at trial, it certainly existed at the post-verdict level with the defendant’s request for a new trial without any guarantee that the Commonwealth would not seek what he was attributed by the trial court in fearing, i.e., a step-up in the charge to first degree murder. The benefit to the defendant is that now he knows his trial strategy seeking full vindication did not bear fruit. The trial court would ignore the presence of waiver and award a new trial. We, on the other hand, see no reason to condone such conduct by the defendant under the rubric of "interests of justice.” See Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991).

      . We wish to comment on the Commonwealth’s contention that the trial court's order granting a new trial was a subtle hint that the defendant should be retried for an “intentional killing,” as commented upon by its own expert at the coroner's inquest and at trial.
      Suffice it to say, without undue elaboration and citation to authority, it is for the District Attorney to decide whom to indict and what charges to lodge against an accused. Commonwealth v. Slick, 432 Pa.Super. 563, 639 A.2d 482 (1994). It is not for the judiciary to interject itself into the indictment process, a function which the Legislature has reserved solely for the prosecuting attorney, absent a gross abuse of discretion, to exercise. Id. We have been presented with no evidence to cast a cloud of suspicion upon the District Attorney’s indictment process to believe that he has grossly abused his discretion in charging the defendant with involuntary manslaughter instead of first degree murder.


source: Caselaw Access Project

author: PER CURIAM: TAMILIA, Judge,

license: Public Domain

text:
    667 A.2d 1131
    Isabella WASILSKY, Administratrix of the Estate of George W. Wasilsky, Deceased, Appellant, v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corp., Celotex Corporation, H.K. Porter Company Inc., Eagle-Picher Industries Inc., Southern Textile Company, GAF Corporation, Rubberoid Company Inc., Owens-Illinois Inc., Keene Corporation, Armstrong World Industries Inc., Armstrong Cork Company, United States Gypsum Company, Porter Hayden Co., Foster Wheeler Corporation, York-Shipley Inc., Pars Manufacturing Company, Phelps Packing and Rubber Company, Hercules Packing Corporation, Anchor Packing Company, Harnischfeger Corporation, A.C. & S. Corporation, Flexitalic Gasket Company, Flintkote Company, Garlock Industries, Fibreboard Corporation, Uni-Royal Inc., National Gypsum Company, Peltz Company, Brand Insulations Inc., Raymark Corporation, Turner & Newall, A.P. Green Refractories Companies, Allied Corporation, Harvey Hubbell Inc., Prudential Supply Corp., J.H. France Refractories Inc., Riley Stoker Corporation, Harbison Walker Refractories, American Hoist and Derrick Company, Drever Furnaces, Selas Corporation of America, Selas Furnaces, Ray Oil Burner Company, Bickley Furnaces Inc., National Airoil Burner Co., Superior Boiler Works Inc., H.B. Smith, Keeler/Dorr-Oliver Boiler Company, International Boilers, and Cleavor Brooks.
    Superior Court of Pennsylvania.
    Argued June 8, 1995.
    Filed Oct. 24, 1995.
    Reargument Denied Jan. 3, 1996.

      Robert J. O’Shea, Jenkintown, for appellant.
    Christopher H. Jones, Conshohocken, for Harbison Walker Refractories, etc., appellees.
    Before McEWEN, TAMILIA and KELLY, JJ.
   PER CURIAM:

Order reversed; case remanded. Jurisdiction relinquished.

TAMILIA, Judge,

concurring and dissenting.

The majority vacates the Order of summary judgment in this case and remands for a jury trial as to liability in a reverse-bifurcated hearing because it holds issues of fact exist as to the time of discovery of appellant’s decedent’s illness. I disagree and would affirm the Order granting summary judgment to the defendant/appellee.

The trial court properly allowed appellee to preserve the motion for summary judgment to the liability (second phase) of the reverse-bifurcated proceeding because of the complexities of the second phase and possibility the disposition in the first phase would render issues of liability moot. Although failure of appellant to serve and file a designation of the record it intended to reproduce as well as statement of issues to be argued on appeal violates Pa.R.A.P. 2154, the failure to comply does not impede review of the issues or prejudice the parties so this Court may address the merits of the appeal. (Majority Memorandum, p. 7.) I join the majority in this holding. Likewise, the majority was correct in sustaining Judges Doty and Moss, the first in postponing consideration of the motion until the second phase of the trial and Judge Moss in properly considering the motion when the second phase began.

As to the grant of the motion for summary judgment, I agree with the trial court that as a matter of law, no issue of material fact existed which presented a matter for resolution by the jury as the statute of limitations, even though extended by the discovery rule, has expired.

The majority states “[i]n granting appellees’ motion for summary judgment, Judge Moss relied exclusively on notations in decedent’s medical records to determine a genuine issue of material fact.” Id. at 12. The majority gives no reasons why medical records or affidavits, uncontested and properly admitted on the record, cannot be used for that purpose. “Relying on decedent’s medical reports, Judge Moss concluded that, by 1983, decedent knew that he had asbestosis or an asbestos related disease and, therefore, the statute of limitations had expired in 1985.” Id. The majority goes on to say “|i]t was not, however, within the judges discretion to determine whether decedent knew prior to 1987 that decedent had asbestosis. Rather, it is the role of the jury as fact finder, not Judge Moss, to determine whether decedent knew or should have known prior to 1987 that decedent had asbestosis.” Id. at 13.

The majority is in error in concluding that the facts of this case require a jury finding as to whether decedent had notice of his asbestosis before the statute had run. The majority is proposing a subjective standard, which in effect would hold that what controls is whether the decedent “could” have known as opposed to whether he “should” have known of his asbestosis. If the standard is he could have known, then there is room to determine if he did or did not know, which leaves room for dispute. When the standard is whether he should have known, his duty is measured only by the facts which, if diligently pursued, would have unerringly led to the determination that he had asbestosis or an asbestos-related disability. The decedent was not permitted to ignore his own medical reports and symptoms, even if the doctors did not communicate their contents to him. It is not surprising that Judge Moss found it incredible that decedent claimed not to have been informed by his doctors of his asbestosis, since this is the standard response from most plaintiffs faced with expiration of the statute of limitations and its extension by the discovery rule. The majority relies heavily on the dissent in Ingenito v. AC & S, Inc., 430 Pa.Super. 129, 633 A.2d 1172 (1993), which espouses a subjective test and requiring a “smoking gun” before summary judgment can be entered. Obviously, the majority in this én banc case did not agree.

The test which has been applied pursuant to the discovery rule has been frequently stated and is now a fixture in the law. Ingenito, supra; Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985). If there was any question that this rule was weakening or that it was expanding to become more subjective rather than objective in relation to when a claimant is required to take definitive action, it has been laid to rest by the most recent pronouncement of the Pennsylvania Supreme Court in Cochran v. GAF Corporation, et al., — Pa. -, 666 A.2d 245 (1995). There, the Supreme Court stated:

Reasonable diligence is just that, a reasonable effort to discover the cause of an injury under the facts and circumstance present in the case. Long ago we recognized that “[t]here are few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.” Deemer v. Weaver, 324 Pa. 85, 90, 187 A. 15 [215], 217 (1936) (quoting Madole v. Miller, 276 Pa. 131, 137, 119 A. 829, 831 (1923). Reasonable diligence is an objective, rather that a subjective standard. Under this standard, the plaintiffs actions must be evaluated to determine whether he exhibited “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985) (quoting Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982)). See also Restatement (Second) of Torts § 283 comment b. Despite the objective nature of the reasonable diligence standard, “[i]t is sufficiently flexible, however, to take into account difference^] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” Burnside, 351 Pa.Super. at 292, 505 A.2d at 988 (quoting Petri, 307 Pa.Super. at 271-72, 453 A.2d at 347). Thus, this case law teaches that a plaintiff is not under an absolute duty to discover the cause of his illness. Instead, he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case.

Id. at -, 666 A.2d at 249 (quoting Baumgart v. Keene, — Pa. -, 666 A.2d 238 (1995) (Opinion in Support of Reversal at ---, 666 A.2d at 243-44).) Continuing, the Court stated:

Our case-law further enlightens us on what is reasonable under the facts of a particular case. It is well settled that the statute of limitations is not tolled by mistake or misunderstanding. Pocono Intern. Raceway [v. Pocono Produce], 503 Pa. [80] at 84, 468 A.2d [468] 471 [ (1983) ]; Nesbitt v. Erie Coach Co., 416 Pa. 89, 93, 204 A.2d 473, 475 (1964). Also, a diligent investigation may require one to seek further medical examination as well as competent legal representation. Murray v. Hamot Medical Center, 429 Pa.Super. 625, 634-35, 633 A.2d 196, 201 (1993), appeal denied, 540 Pa. 632, 658 A.2d 796 (1994) (citing Souders v. Atlantic Richfield Co., 746 F.Supp. 570, 573 (E.D.Pa.1990) citing United States v. Kubrick, 444 U.S. 111, 123 [100 S.Ct. 352, 360, 62 L.Ed.2d 259] (1979)).

(Cochran, supra - Pa. at -----, 666 A.2d 245.)

Applying the above standards, the exercise of due diligence in this case required the decedent to seek further medical examinations as well as competent legal representation in 1982 after being examined at Abington Memorial Hospital when he was x-rayed for sinus and chest problems. The hospital report by L. Margapida, M.D., states on March 8, 1982:

The examination of the chest in the PA and lateral projections shows the left lung to be relatively clear. In the right side there are linear densities compatible with areas of fibrosis. There is pleurodiaphragmatic calcification noted in the lateral projection and not identified with certainty in the frontal projection. The heart is not enlarged in its overall size but shows some prominence of the left ventricle region. The aorta is somewhat tortuous.
Because of the pleurodisphregastic calcification the possibility of asbestosis should be considered in this case.
L. Margapida, M.D.

On October 14, 1983, decedent was admitted to Chestnut Hill Hospital with a diagnosis of myocardial infarction, congestive heart failure and probable asbestosis. On the discharge date of October 29, 1983, the report, dictated by Jennifer Daniels, M.D., disclosed the decedent was referred by his family doctor for x-rays and an electrocardiogram due to his wheezing and shortness of breath. The x-rays disclosed, lungs: Rales at the right base and rales one-half way up on the left. The x-rays taken on October 21,1983 were examined by Dr. Weis, radiologist, who reported:

There has been no change in the appearance of the chest since 10/19/83. The residual findings may represent chronic interstitial and pleural disease. Evidence of asbestosis is present with bilateral pleural thickening and diaphragmatic calcification.

(Emphasis added.)

The majority considers these reports irrelevant although they are affidavits on the record meeting the requirements for a grant of summary judgment.

Judge Moss, in her carefully detailed Opinion, applied the law as it relates to summary judgment, the statute of limitations and the discovery rule in explaining her decision:

Wasilsky’s 1983 medical records reported a history of shortness of breath before a nasal polypectomy in 1982. This surgery apparently relieved his shortness of breath initially but soon after Wasilsky began wheezing and was hospitalized in October 1983, complaining of wheezing and breathlessness upon light exertion. A contemporaneous medical history taken during that hospitalization, based on patient information and prior medical records, revealed he had “a history of pneumoconiosis, diagnosed by x-ray several years ago.” An x-ray report from October 1983 stated:
“evidence of asbestosis is present with bilateral pleural thickening and diaphragmatic calcification”; said report was sent to Wasilsky’s treating physician who monitored him. His discharge report indicated a diagnosis, inter alia, of “pneumoconiosis — probably asbestosis.”
In medical records from March 1982, Wasilsky specifically reported an asbestos exposure history. Further, a 1982 x-ray report stated: “Because of the pleurodiaphragmatic calcification the possibility of asbestosis should be considered in this case.” (Defendant’s Exhibit 1).
In deciding a Motion for Summary Judgment, courts utilize standards set forth by the Superior Court of Pennsylvania in Samarin v. GAF Corp., 391 Pa.Super. 340, 346, 571 A.2d 398, 401 (1989):
A motion for summary judgment may properly be granted only ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’
Id. [571 A.2d] at 401... .
The Samarin Court continued, “[i]t is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.” Id. [571 A.2d] at 402. Summary judgment should only be entered in those cases which are clear and free from doubt. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190, 544 A.2d 50, 52 (1988) (citing Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983)). Using this standard we must decide whether Plaintiffs claim was instituted within the prescribed limitations period.
Here it is abundantly clear Plaintiff was not duly diligent in pursuing facts upon which his claim is based or timely filing suit. In October, 1983, Wasilsky knew he had long-term workplace asbestos exposure and shortness of breath, a classic symptom of asbestos-related pleural disease. His x-ray reports and medical records from 1982 and 1983 were replete with probable asbestosis diagnoses. We find it completely incredible Wasilsky’s treating physicians did not inform him even once about multiple diagnoses of “pneumoconiosis — probably asbestosis.” However, even if the incredible happened, he could and should have ascertained his x-ray results and the origin of his chronic breathing impairment at least 3 years before December, 1986. “The failure to make inquiry when information is available is failure to exercise reasonable diligence as a matter of law.” Ingenito, 430 Pa.Super. at 133, 633 A.2d at 1175 (citing Owens v. Lac D’Amiante Du Quebec, Ltee., 656 F.Supp. 981, 983 (E.D.Pa. 1987), aff'd, 833 F.2d 306 (3d Cir.1987)).
In Pennsylvania, a legally cognizable claim for pleural thickening arises when plaintiff experiences physical symptoms linked to the disease. DiDio v. Philadelphia Asbestos Corporation, 434 Pa.Super. 191, 201-202, 642 A.2d 1088, 1092-1093 (1994); Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), alloc. granted, 539 Pa. 651, 651 A.2d 539 (1994). The uncontroverted evidence is sufficient to demonstrate Mr. Wasilsky knew or reasonably should have known in October, 1983 he had developed symptomatic pleural disease from his workplace asbestos exposure. While the “discovery rule” may have tolled said limitations period in the 1970s, by October, 1983, the statute had clearly begun to run because Wasilsky knew or in the exercise of reasonable diligence should have known he had been injured from workplace asbestos exposure. The statute expired in October, 1985 but Plaintiff did not institute this suit until December 1988.

(Slip Op., Moss, J., 1/13/94, p. 4.)

I could not have said it better and this Court should affirm the Order of summary judgment.

      . rale: an abnormal sound that accompanies the normal respiratory sound. Webster’s Ninth New Collegiate Dictionary, Copy 1984.


author: ROWLEY, President Judge:

text:
    667 A.2d 1135
    COMMONWEALTH of Pennsylvania, Appellant, v. Lisa M. HOCKENBURY.
    Superior Court of Pennsylvania.
    Argued June 21, 1995.
    Filed Nov. 6, 1995.

      Michael Morrone, Assistant District Attorney, Williamsport, for Commonwealth, appellant.
    Robert W. Ferrell, Williamsport, for appellee.
    Before ROWLEY, President Judge, and POPOYICPI and SAYLOR, JJ.
   ROWLEY, President Judge:

In this appeal the Commonwealth asks us to determine whether the trial court properly granted the motion of appellee Lisa Hockenbury to dismiss charges of receiving stolen property, filed against her in Lycoming County, on the grounds that she has already pled guilty to, and been sentenced for, receiving stolen property in Dauphin County. The trial court determined that the Lycoming prosecution was barred by the Fifth Amendment of the United States Constitution, Article I, § 10 of the Pennsylvania Constitution, and 18 Pa.C.S. § 109. We reverse.

The facts disclosed by the record, as relevant to this appeal, are as follows. On January 24, 1992, appellee sold 84 pieces of jewelry to G.M. Jewelry Enterprise in Harrisburg, Dauphin County. Appellee’s name and correct address appeared on the receipt issued by the jeweler. Apparently suspecting the jewelry may have been stolen, the jeweler contacted authorities in Dauphin County, who in turn sent a copy of the receipt to Pennsylvania State Police Officer Charles Snyder, in Lycoming County.

Officer Snyder contacted the victim of a burglary that occurred in Lycoming County on December 18, 1990, Betty Sue Bird, and on January 29 and 30, 1992, Ms. Bird travelled to Harrisburg and identified the 34 pieces of jewelry as among those stolen from her residence over a year earlier. The total value of the over 300 pieces of jewelry stolen from the Bird residence in 1990 was in excess of $16,300.00. The record does not indicate that anyone has ever been charged with the Bird burglary.

On February 3, 1992, Officer Snyder went to the Hockenbury residence in Lycoming County, where appellee lived with her mother and brother, to question her about the sale to the Harrisburg jeweler, and to inquire if she knew where the remaining jewelry stolen from the Bird residence might be. Appellee first denied and then admitted having sold the jewelry in Harrisburg. Appellee denied stealing the jewelry, and told Officer Snyder that, without her mother’s knowledge, she had obtained the 34 pieces of jewelry from her grandfather’s car. Appellee maintained that the jewelry had belonged to her grandmother, and then to her grandfather, who died several weeks earlier, on January 2,1992.

On March 3, 1992, Officer Snyder returned to appellee’s residence. Appellee’s mother, Stephana Hockenbury, told Officer Snyder that her daughter no longer lived there and had moved to Florida to live with a relative.

On April 12, 1992, the mother of the victim in the 1990 burglary at the Bird residence, Betty Stadt, attended a porch sale at the Hockenbury residence, conducted by appellee’s mother, Stephana Hockenbury. When Ms. Stadt asked Ms. Hockenbury if she had additional jewelry for sale aside from what was displayed, Stephana Hockenbury went to a blue vehicle parked in the driveway, later determined to belong to her father, appellee’s deceased grandfather, and removed a bag of additional jewelry. When Ms. Hockenbury emptied the bag of jewelry on the kitchen table, Ms. Stadt recognized a bracelet she had given her daughter, Ms. Bird, which had been stolen in the 1990 burglary. Mrs. Stadt purchased the bracelet, left the Hockenbury residence, and later informed Officer Snyder of the events at the porch sale. A search warrant was issued for the Hockenbury residence and vehicle parked in the driveway. "When the search warrant was executed later the same day, only appellee’s brother, Todd Hockenbury, was present. A duffel bag found in an upstairs bedroom contained jewelry and a pillow case which Ms. Bird identified as having been taken from her bedroom in the 1990 burglary.

A criminal complaint charging appellee with receiving stolen property was filed in Lycoming County on April 14, 1992, and appellee was arrested and subsequently released on bail. On May 27, 1992, a preliminary hearing was held on the charge, and the district justice determined that there was sufficient evidence to hold the matter for trial. A bill of information was filed against appellee on June 11, 1992. On August 14, 1992, the Commonwealth filed a bill of particulars alleging that appellee received stolen property “which was purchased at the Hockenbury residence on April 12, 1992, and/or which was seized from the residence ... on April 12,1992.”

On August 26, 1992, a criminal complaint was filed against appellee in Dauphin County, charging her with receiving stolen jewelry, valued at $2,520.00, and disposing of it to G.M. Jewelry Enterprise in Harrisburg on January 24, 1992. A preliminary hearing was held in Dauphin County on October 8, 1992, and a criminal information was filed on November 25, 1992.

On January 5, 1993, appellee appeared in the Court of Common Pleas of Dauphin County and entered a plea of guilty to receiving stolen property. She was given a sentence of twenty-two months probation, and ordered to reimburse G.M. Enterprise Jewelers in the amount of $535.00.

One week later, on January 12,1993, appellee filed a motion to dismiss the Lycoming County criminal information, claiming that the Lycoming charge constituted a second prosecution for the same offense.

/. Section 109

The trial court determined that the Lycoming prosecution is barred under Section 109 of the Crimes Code because: 1) in both prosecutions appellee is charged with violating the same provision of the criminal statute, receiving stolen property, 18 Pa.C.S. § 3925; 2) the Dauphin prosecution resulted in appellee entering a plea of guilty, which constitutes a conviction for purposes of section 109; and, 3) any subsequent prosecution in Lycoming County would be based on the same facts as those of the Dauphin prosecution. We disagree.

In the Dauphin prosecution appellee was charged with possessing and selling 34 pieces of stolen jewelry to a jeweler in Harrisburg, Dauphin County, in violation of 18 Pa.C.S. § 3925. Her ple'a of guilty to this charge establishes that the following elements are no longer in dispute: 1) that the 34 pieces of jewelry in her possession, valued at $2,520.00, were stolen, and, that 2) appellee intentionally received, retained, or disposed of the 34 pieces of jewelry on January 24, 1992, to a Harrisburg jeweler, 3) knowing the property was stolen, or believing that the property probably was stolen. In findings of fact made by the trial court in granting appellee’s motion to dismiss the Lycoming County charges, the trial court states:

Specifically the [Dauphin County] criminal complaint alleges the property to consist of “an assortment of chains, bracelets and fine (jewelry)” with an alleged value of $2,520 more or less[.] The Dauphin County affidavit of probable cause, dated August 26, 1992, included reference to the [1990 Bird] burglary, the sale to G.M. Jewelry Enterprise on January 24, 1992, the January 29, 1992, identification of the jewelry by Mrs. Bird and the February 3, 1992, interview of [appellee] by Trooper Snyder.

No mention is made regarding where, or in whose possession, the remaining 280 pieces of jewelry stolen in the Bird burglary might be, and the value of the remaining jewelry is clearly not included in the Dauphin County complaint or affidavit. As noted above, the bill of particulars filed by the Commonwealth in the Lycoming prosecution identifies only the 280 pieces of stolen jewelry seized from the Hockenbury residence on April 12, 1992.

Despite the identity of the charges brought against appellee in the two prosecutions, the facts upon which the two prosecutions are based are clearly not duplicative. Commonwealth v. Pinkston, 342 Pa.Super. 333, 492 A.2d 1146 (1985) (alleged receipt of stolen property on two occasions, eight months apart, involved discrete and unrelated constellation of facts). The fact that the stolen property originated from one place, the Bird residence, and was stolen in one burglary in 1990, appear to be all that the two prosecutions have in common. Since the facts relevant to each are not the same, Section 109 will not bar the prosecution in Lycoming County.

II. Section 110

Consistent with a determination that the Dauphin and Lycoming prosecutions involve the same facts, the trial court argues that the provisions of Section 110 are not applicable in appellee’s case. Furthermore, argues the court, even were we to find that the two prosecutions involved different facts, as we do, Section 110 will bar the Lycoming prosecution. We disagree for the following reasons.

When, as here, a prior (Dauphin) prosecution results in a conviction and the subsequent (Lycoming) prosecution, although charging a violation of the same statutory provision, is based upon different facts, Section 110 of the Crimes Code would operate to bar the subsequent (Lycoming) prosecution, if:

(l)(i) the Lycoming prosecution is for an offense for which appellee could have been convicted in the Dauphin prosecution; or,
(l)(ii) the Lycoming prosecution is for an offense which involves the same conduct or arises from the same criminal episode; if,
(a) the Lycoming prosecution is for an offense known to the prosecuting officer in Dauphin at the time prosecution was initiated there; and,
(b) the offense allegedly committed in Lycoming was within the jurisdiction of a single court; or
(l)(iii) the Lycoming prosecution is for the same conduct, unless,
(a) the offense to which appellee pled guilty in Dauphin and the offense for which she would be prosecuted in Lycoming each requires proof of a fact not required by the other.

18 Pa.C.S. § 110.

In applying Section 110(l)(i) to the facts, the trial court argues that Dauphin County would have been a proper jurisdiction for “asserting ” that appellee was guilty of “possession, retention and disposing of the jewelry stolen in the Bird residence burglary.” The relevant inquiry, however, is whether appellee could have been convicted in the Dauphin prosecution for the criminal conduct of receiving stolen property alleged to have occurred in Lycoming County.

We find the criminal conduct in Harrisburg, to which appellee has pled guilty, occurred wholly within the confines of Dauphin County and was properly prosecuted there. Similarly, the Lycoming prosecution will proceed on facts, times, dates, and property relative to criminal conduct which allegedly occurred wholly within the confines of Lycoming County. While we agree with the trial court’s contention that “it might possibly be argued the Dauphin County conduct [to which appellee has already pled guilty] would not have to be show in Lycoming County [in a subsequent prosecution],” we do not agree that “it is unquestionable that in order for the Dauphin County conduct to sustain a conviction[,] evidence of the Lycoming County conduct on the part of the Defendant is necessary.” First, what was necessary to sustain a conviction in Dauphin County is now irrelevant since appellee pled guilty to the charges there, and second, it appears that the “Lycoming County conduct” to which the trial court refers is, again, the 1990 burglary at the Bird residence. Aside from the unifying fact of the 1990 burglary, there are no facts to support a contention that appellee could have been convicted in Dauphin County of receiving stolen property which was never alleged to have been in her possession in Dauphin County. Therefore, Section 110(l)(i) will not bar the Lycoming prosecution.

Section 110(1)(ii) would operate to bar the Lycoming prosecution if the Lycoming and the Dauphin prosecutions arose from the same criminal episode. An inquiry with respect to whether a series of criminal acts constitutes a single criminal episode is fact dependent. Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995). “[W]here a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists ... and failure to consolidate will bar successive prosecutions.” Commonwealth v. Hude, 500 Pa. 482, 494, 458 A.2d 177, 183 (1983). As noted supra, the only common “criminal episode” evident to us is the source of the jewelry, the 1990 burglary, with which appellee is not charged.

There is nothing in the record to support an allegation that appellee possessed the 280 pieces of jewelry, taken out of her grandfather’s car three months later, when she sold the 34 pieces in Dauphin County in January, 1992, nor was she prosecuted in Dauphin County for a charge related to that property. It follows that, having admitted guilt to the charge of selling 34 pieces of stolen jewelry in Dauphin County, she may not be charged with or prosecuted for receipt of those pieces in the Lycoming prosecution. In the Interest of R.R., 317 Pa.Super. 334, 464 A.2d 348 (1983) (collateral estoppel or issue preclusion bars relitigation of previoüsly litigated issue in subsequent proceeding, whether same or different evidence would be introduced). The two offenses are unrelated by time and location and only related by the logic of the underlying burglary as a common source of the property, and the prosecutions for each offense do not present substantial duplication of issues of law and fact. Hude, 500 Pa. at 494, 458 A.2d at 183; Pinkston, supra. Thus, Section 110(1)(ii) will not bar the Lycoming prosecution since possession and sale of stolen property in January in Dauphin County is a separate criminal episode from the receipt of entirely different stolen property alleged to have occurred in April in Lycoming County.

Having determined that the Dauphin and Lycoming prosecutions are not based upon the same conduct and do not arise from the same criminal episode, the question of whether the Dauphin authorities were aware of the Lycoming offense at the time appellee pled guilty to receiving stolen property in Dauphin County is irrelevant. Nor need we address the question of whether the Lycoming offense could be considered within the jurisdiction of a single court. Bracalielly, 540 Pa. at 476, 658 A.2d at 763.

We also find that Section 110(1)(iii) will not bar the Lycoming prosecution, since possession and sale of 34 pieces of stolen jewelry in Dauphin County in January, 1992, is not the same conduct as possession of 280 different pieces of stolen jewelry in Lycoming County in April, 1992. Put another way, the Dauphin prosecution at no point alleged that appellee possessed the 280 pieces of jewelry seized in April, 1992, at the time she possessed and sold the 34 pieces in January, 1992, which conduct comprises the substance of the charges to which she pled guilty in Dauphin County. The facts relied upon by the trial court indicate, to the contrary, that the remaining jewelry was still in the trunk of appellee’s grandfather’s car, and was next removed by appellee’s mother, not appellee, in April, 1992. Moreover, as noted supra, the bill of particulars in the Lycoming prosecution is limited to the 280 items seized from the Hockenbury residence in April, 1992, and makes no reference to the 34 pieces of jewelry sold in Dauphin County. The intervening possession of the 280 pieces of jewelry by appellee’s mother, coupled with appellee’s inferred absence at the time her mother removed the jewelry from her father’s (appellee’s grandfather’s) car and took them into the Hockenbury residence, supports our conclusion that the two prosecutions do not involve the same conduct on the part of appellee. Since the same conduct is not involved, we need not address whether the two offenses would each require proof of a fact not required by the other.

As our discussion above demonstrates, the facts support a determination that the two prosecutions for receiving stolen property involve separate and distinct criminal episodes, distinguishable by the facts supporting each charge, the locations and times at which each occurred, as well as the substance of the stolen property. Thus, Section 110 will not bar the Lycoming prosecution.

III. Constitutional Claims against Double Jeopardy

Having concluded that neither Section 109 nor Section 110 bars the Lycoming prosecution, we next address appellant’s claim that the trial court erred in determining that, under both the federal and state constitutions, double jeopardy bars a second prosecution of appellee for receiving stolen property.

It is well-settled that protections afforded an individual under the double jeopardy clauses contained in the United States Constitution, U.S. Const., Amend. V, and the Pennsylvania Constitution, Pa. Const., art. I, § 10, are “coextensive, involving the same meaning, purpose and end.” Commonwealth v. Quinlan, 433 Pa.Super. 111, 120 n. 4, 639 A.2d 1235, 1240 n. 4 (1994), citing Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). Applying a unitary analysis, both provisions protect an individual against a second prosecution for the same offense, where, as here, a conviction has occurred. When “successive prosecutions are at stake, the guarantee against double jeopardy serves a ‘constitutional policy of finality for the defendant’s benefit.’ ” Commonwealth v. Downs, 334 Pa.Super. 568, 573, 483 A.2d 884, 886 (1984), quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion). There are two separate and distinct privileges protected by the double jeopardy clauses: that an individual may not have to suffer successive prosecutions for a single wrongful act, and no individual may be punished more than once for the same offense. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). The courts which sit in the various counties are part of a unified judicial system, and thus are precluded from separately prosecuting a defendant for a single criminal act. Downs, 334 Pa.Super. at 574, 483 A.2d at 887.

The facts established thus far by the record support a determination that there are two criminal acts, initiated and completed in two different counties. Again, the trial court determined that in a subsequent prosecution in Lycoming County, the Commonwealth would “prove the same conduct, that is, the Defendant intentionally and knowingly received stolen property consisting of jewelry stolen in a single burglary occurring ... two years prior to the discovery of the Defendant’s possession of that stolen property.” We can only surmise by this statement that the trial court is concerned that subsequent prosecution for a second charge of receiving stolen property might result in a de facto prosecution for the Bird burglary. To this, we say again, appellee has not been charged with this offense, and she may not be tried for it. Moreover, appellee’s “possession of the stolen property” is only alleged in the Lycoming prosecution, thus no “discovery of the Defendant’s possession of that stolen property [the 280 pieces seized in April]” has yet occurred; it remains for the Commonwealth to prove possession beyond a reasonable doubt in any subsequent prosecution in Lycoming County.

Our review of the trial court’s analysis demonstrates that the court essentially conducted an assessment of what, in its opinion, the Commonwealth would be required to establish in order to convict appellee if the Lycoming prosecution is allowed to proceed. The trial court concludes that the evidence is insufficient without proof of the facts that led to the Dauphin conviction, and determines that this constitutes double jeopardy. However, an overlap in proof offered in two prosecutions does not constitute a double jeopardy violation. United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992).

In any event, the adequacy, or inadequacy, of the proof required for the Commonwealth to succeed in gaining a conviction in the Lycoming prosecution is not the issue before us. It is inappropriate at this stage to substitute a preemptive assessment of the sufficiency of evidence required for the Commonwealth to succeed in a conviction after trial, for a determination with respect to whether appellee’s rights against again being placed in jeopardy for the same offense precludes any trial from taking place at all.

Because the facts support a finding that the Dauphin and Lycoming prosecutions involve separate and distinct criminal offenses stemming from separate criminal episodes, unrelated by time, location, and subject matter, with no logical relationship aside from the source of the stolen property, the constitutional guarantees against twice being placed in jeopardy for the same offense are inapplicable to the Lycoming prosecution; principles of double jeopardy only operate to bar double prosecutions for a single offense. Downs, 334 Pa.Super. at 575, 483 A.2d at 887.

The record does not support the trial court’s determination that the Dauphin and Lycoming prosecutions involve either a single act or a single criminal episode. Thus, the legal conclusion that a subsequent prosecution in Lycoming County would violate appellee’s privilege against being twice placed in jeopardy for the same offense does not legitimately follow.

Accordingly, we reverse the order of the trial court dismissing the charges filed against appellee in Lycoming County.

Order reversed and case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.

      . At a hearing on February 16, 1993, counsel stipulated that the trial court would determine the motion to dismiss the Lycoming charges on evidence from facts as set forth in the affidavit for probable cause, filed 4/14/92, testimony from the preliminary hearing on 5/27/92, and a pretrial hearing held 7/31/92, and facts as set forth in appellee’s omnibus pre-trial motion, filed 8/5/92.

      . Nothing in the record indicates that appellee was present at any time on April 12, 1992.

      . Section 109 of the Crimes Code reads in pertinent part:
      When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
      H* % *!' li* -fc
      (3) The former prosecution resulted in a conviction. [ ]
      18 Pa.C.S. § 109.

      . See Commonwealth v. Rosario, 438 Pa.Super. 241, 652 A.2d 354 (1994).

      . We note that had the Dauphin prosecution proceeded to trial, as a threshold matter the Commonwealth would have been required to establish that the 34 pieces of jewelry appellee sold to the Harrisburg jeweler in January, 1992, were stolen as a necessary element of the crime charged. See 18 Pa.C.S. § 3925; Commonwealth v. Matthews, 429 Pa.Super. 291, 632 A.2d 570 (1993). It follows that the Commonwealth would also be required to establish that the 280 pieces seized from appellee's residence in April, 1992, were stolen, as a necessary element to the Lycoming prosecution for receiving stolen property.

      . The policy concerns underlying Section 110, which essentially creates a "rule of compulsory joinder,” Commonwealth v. Bracalielly, 540 Pa. 460, 470, 658 A.2d 755, 760 (1995), are twofold: to protect the accused from government harassment by means of successive trials for offenses "stemming from the same criminal episode,” and to assure finality without burdening the judicial process by repetitious litigation. Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983); Commonwealth v. Webster, 323 Pa.Super. 164, 470 A.2d 532 (1983).

      . It is just as well that appellee rejects the applicability of Section 110, for, being aware of the prosecutions against her in both jurisdictions, a failure to move for consolidation of the charges would constitute waiver. Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984) (if an accused is aware of charges filed in separate jurisdictions based on one criminal episode, failure to move for consolidation constitutes waiver of a statutory claim under Section 110). See also Commonwealth v. Cicconi, 439 Pa.Super. 81, 653 A.2d 40 (1995) (no statutory protection allowed if defendant knowingly acquiesces in separation of trials).

      . The trial court questions, hypothetically, whether appellee could have been charged and convicted more than once if, after the sale of stolen jewelry in Dauphin County, she had proceeded to Union, Northumberland, Snyder, and Perry Counties and sold additional pieces of stolen jewelry in each county. This would indeed constitute an "ongoing offense," Commonwealth v. Downs, 334 Pa.Super. 568, 579, 483 A.2d 884, 889 (1984), subject to one prosecution, precisely because, as the trial court points out, appellee would have to have had possession of all the stolen property at some point in time, in order to have effected the series of hypothetical sales.
      The facts relied upon by the trial court establish, to the contrary, that appellee had possession, and effected a sale, of 34 pieces of stolen jewelry on January 24, 1992, in Dauphin County. The Commonwealth alleges that appellee had possession of 280 entirely different pieces of stolen jewelry on April 12, 1992, in Lycoming County in the Lycoming prosecution.

      . Hude, supra (necessity to consider double jeopardy complaints only arises once it is determined that statute does not require granting relief requested).

      . We need not address that part of the trial court's analysis which relies upon the Supreme Court’s decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), as Grady was overruled in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). However, the trial court’s references to and reliance upon the “Blockburger test” and decisions which have evolved from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), are inapposite to the facts of this case. In the event that one act gives rise to two statutory violations, the “Blockburger test” inquires whether each offense contains an element not contained in the other. Commonwealth v. Mary M. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995).
      The concern instantly is whether a second prosecution for violating the same statutory provision, allegedly occurring on two separate dates, by two distinct acts, violates the privilege against double jeopardy. Thus, making a determination with respect to whether "each of the offenses created requires proof of a different element,” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, is irrelevant. Id. (where one act constitutes violation of two provisions, test to apply to determine whether there are two offenses or one is whether each provision requires proof of additional fact not required by the other).


author: POPOVICH, Judge:

text:
    667 A.2d 1143
    COMMONWEALTH of Pennsylvania, Appellee, v. Timothy P. McENANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1995.
    Filed Nov. 8, 1995.

      Barbara A. Zemlock, Harrisburg, for appellant.
    Richard E. Guida, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before POPOVICH, SAYLOR and BROSKY, JJ.

      . Defense counsel did not object to this testimony at trial as it would have been futile. The prosecution was proceeding according to the trial judge's erroneous pretrial ruling. It is difficult to imagine a more direct comment on one's right to silence than the officer's testimony that no statement was made by appellant. Furthermore, there was no probative value to this evidence beyond the fact that appellant asserted his right to silence. There was no need for the prosecution to draw attention to the absence of a statement by appellant and it was improper for the trial judge to sanction such conduct.

   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Dauphin County on November 10, 1994, following appellant’s conviction on charges of second-degree murder, burglary, robbery and criminal conspiracy. Appellant was sentenced to life imprisonment for the murder and consecutive one to two year sentences for both the burglary and criminal conspiracy charges. Appellant herein raises the following issues:

1. Did the trial court err in denying appellant’s motion to suppress the seizure of appellant’s cellular phone because the search warrant for the vehicle was deficient in probable cause and particularity?
2. Did the trial court err in denying appellant’s motion to suppress cellular telephone records obtained through the improper use of a subpoena?
3. Did the trial court err in denying appellant’s motion to suppress evidence obtained through a warrantless search of the memory chip within a validly seized cellular phone?
4. Was the evidence presented at trial sufficient to sustain appellant’s conviction of second-degree murder, burglary, robbery and criminal conspiracy?
5. Did the trial court err in denying appellant’s motion to suppress certain statements as constituting an impermissible comment on appellant’s right to remain silent?

Upon review, we find that the lower court properly decided the various suppression issues raised by appellant, and we agree with the lower court that the evidence was sufficient to sustain the verdict. However, we are convinced that the court erred when it permitted the Commonwealth to introduce evidence which amounted to an impermissible comment upon appellant’s constitutional right to remain silent. Accordingly, we reverse and remand for a new trial.

We turn now to the issues presented. When reviewing the denial of a motion to suppress, this court must:

determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341, 342-343 (1990), quoting Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989).

The facts of this case are as follows: On March 4, 1993, at 12:45 a.m., eighty-two year old Kathryn Bishop was found dead on the floor of her residence. Wayne K. Ross, a forensic pathologist, determined that Mrs. Bishop had been stomped to death sometime between 9:00 p.m. and 11:30 p.m. on March 3, 1993. Paint chips were found on Mrs. Bishop’s hands, and black t-shirt fibers were on her face, neck and clothing. Additionally, Mrs. Bishop’s kitchen door window had been smashed, her basement window had been opened and scuff marks were left on her clothes dryer which was located just below the basement window.

Subsequent investigation revealed that the appellant, Timothy McEnany, and his cousin, Andrew Reischman, were at Mrs. Bishop’s residence to clean her chimney between the hours of 2:00 p.m. and 5:00 p.m. on March 3, 1993. While appellant and Reischman were cleaning the chimney, Mrs. Bishop and her daughter, Janet Seitz, were discussing Mrs. Bishop’s finances. At this time, one of the workers was in the house. There was a large roll of paper money and a basket full of change owned by Mrs. Bishop in plain view. Mrs. Seitz and her husband left Mrs. Bishop at approximately 5:00 p.m. At that time, appellant and Reischman were still present at the house.

During the time period between March 4,1993 and March 7, 1993, Trooper Jeffrey Stansfield spoke with appellant regarding his contact with Mrs. Bishop on March 3, 1993. Appellant told Trooper Stansfield that he had been to Mrs. Bishop’s residence on March 3, 1993 to clean her chimney. Appellant also stated that he was at a bar called Shane’s Flight Deck between the hours of 6:30 p.m. and 1:30 a.m. on the evening of the murder. The bar is located about fifteen (15) miles from Mrs. Bishop’s residence and over sixty (60) miles from appellant’s home. A cook from Shane’s saw appellant at the bar around 6:00 p.m. that evening, but not after that time. A bartender from Shane’s testified that she saw appellant after midnight that evening and that he was acting in a manner to ensure that his presence was noticed.

Officers then spoke with Mrs. Bishop’s neighbor, Dawn Rogers, who stated that she heard the sound of breaking glass between the hours of 10:00 and 10:30 p.m. on March 3, 1993. A couple of minutes later, Mrs. Rogers saw a person running down the street from the direction of Mrs. Bishop’s house, carrying a clear bag containing a large envelope. Mrs. Rogers’ description of this person matched the general description of Reischman.

On March 7, 1993, at approximately 10:25 a.m., Corporal Lester Freehling and Trooper Stansfield arrived at appellant’s house and asked him if he would accompany them to the police station. At that time, Corporal Freehling told appellant that he was not required to go, that he was not under arrest and that the officers would bring him home at any time. Appellant agreed to go with the officers. The officers and appellant arrived at the police station at approximately 11:15 a.m. Then, Corporal Freehling, as a precaution, gave appellant a Miranda form and, once again, told him that he could stop the questioning at any time. Appellant said that he understood his rights and signed the waiver form. Corporal Freehling interviewed Appellant until 1:00 p.m. regarding events surrounding and leading up to the evening of March 3, 1993. At no time was appellant handcuffed or otherwise physically restrained.

At 1:00 p.m., Trooper McElheny met with appellant and requested that he take a polygraph examination. Appellant agreed, and Trooper McElheny then explained the examination to him for about an hour. Prior to administering the exam, Trooper McElheny obtained appellant’s written consent as well as his signature on another Miranda form. The exam lasted from about 2:00 to 5:00 p.m., at which time Trooper McElheny informed appellant that the results of the test indicated that he was not telling the truth. Appellant was not arrested at this time nor was he told that he could not leave.

At 5:10 p.m., Corporal Freehling rejoined the questioning, and, at 5:30 p.m., he proposed the possible scenario to appellant which follows: While appellant and Reischman were working at Mrs. Bishop’s house, Reischman had seen a lot of money on the dining room table. Appellant and Reischman had gone to Shane’s bar and started drinking. Reischman told appellant about the money and suggested that they rob Mrs. Bishop. The two went back to Mrs. Bishop’s house where Reischman was dropped off, and appellant waited nearby in the van. Reischman returned with the money and did not tell appellant that he had killed Mrs. Bishop. Appellant first learned of her death when the two troopers arrived at his house. Corporal Freehling then said, “This may not be actually how it happened, but it is pretty close to the truth, isn’t it?” Appellant’s immediate response was, “Yeah, I want to tell you what happened.” Corporal Freehling stopped the questioning and left the room. At this time, appellant blurted out to Trooper McElheny, “It’s that fucking beer. Every time I drink I get in trouble. I really fucked up this time.” Thereafter, Corporal Freehling returned and began to advise appellant of his constitutional rights. Before he could finish, appellant interrupted him and said that he wanted to do the right thing and that he knew what the right thing was. Appellant further stated that he wanted to tell what happened, but he didn’t want to do anything “stupid” and wanted an attorney present before he made a statement. All questioning of appellant then ceased.

As the investigation continued, Trooper Stansfield obtained search warrants for appellant’s van and residence. From appellant’s residence, officers seized the clothes worn by appellant on March 3,1993. Investigation of appellant’s clothing revealed paint chips in the pocket of appellant’s jacket. Paint analysis expert, John Evans, testified at trial that the paint chips found in appellant’s jacket pocket were consistent with chips found on Mrs. Bishop’s hands. The chips found in appellant’s jacket and on Mrs. Bishop’s hands were also consistent with the peeling paint around the broken basement window. Chemist, Lee Ann Grayson, testified that fibers found on Mrs. Bishop’s body matched those of the t-shirt appellant wore on the day of the murder.

Pursuant to the search warrant for the van, officers seized appellant’s cellular phone. Investigation of the memory of appellant’s phone revealed that the last number dialed was Mrs. Bishop’s home telephone number. A subsequent search of appellant’s phone records revealed two unanswered calls made to Mrs. Bishop’s residence at approximately 10:07 p.m. on the night she was murdered.

Appellant’s first assertion of error is that the search warrant for his van was issued without probable cause. When reviewing whether a search warrant was supported by probable cause, we employ the “totality of the circumstances” analysis of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Camperson, 437 Pa.Super. 355, 650 A.2d 65, 69-70 (1994). The “totality of the circumstances” test has been summarized as follows:

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, that there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 925 (1985), quoting Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332-2333.

The record reveals that on March 8, 1993, Trooper Stansfield applied for a warrant to search appellant’s 1977 Ford Van. The affidavit of probable cause for the search warrant explained that appellant and his cousin were at Mrs. Bishop’s house on March 3, 1993, between the hours of 3:00 and 5:00 p.m. At 5:00 p.m., Mrs. Bishop’s daughter left her mother alone in the house with appellant and his cousin. During the time appellant was at Mrs. Bishop’s house, his 1977 Ford Van was parked outside. The affidavit further sets forth that Appellant and his cousin were the last known people to see Mrs. Bishop alive and that the time of death was sometime between 9:00 p.m. and 11:30 p.m. on March 3, 1993. The affidavit also set forth the scenario which Corporal Freehling presented to appellant describing appellant’s use of the van to commit the crime, and it noted appellant’s affirmation of that scenario.

Applying the “totality of the circumstances” test, we find that the issuing authority had sufficient information upon which to determine that probable cause existed. The vehicle was at the scene of the crime. Appellant was one of the last two people to see the victim alive, and appellant agreed to a scenario stating the van was used to commit the crime.

As an extension of his attack on the warrant for the van, appellant contends that the search warrant for the van lacked the specificity necessary to justify seizure of appellant’s cellular phone. The search warrant for the van cites its purpose as “searching and seizing any trace evidence including, but not limited to: blood, hairs, fibers, glass, paint, and any other contraband or evidence related to this crime.” The cellular phone does not fall expressly within the above listed items. Nevertheless, we find that appellant’s cellular phone was validly seized under the plain view exception.

Pennsylvania courts have determined that the plain view exception applies when the following three conditions are satisfied: (1) the initial intrusion must be lawful; (2) the item must have been inadvertently observed; and (3) there must be probable cause to link the observed property with criminal activity. Commonwealth v. Daniels, 406 Pa.Super. 112, 116, 593 A.2d 895, 897 (1991).

Applying the plain view exception to the present case, we find all three requirements were met. The initial intrusion by officers into appellant’s Ford Van was pursuant to a valid search warrant as stated above. The officers inadvertently observed the cellular phone while searching for trace evidence. Whether probable cause existed to link the cellular phone to criminal activity requires closer inspection. When determining whether police officers had probable cause to believe that certain items were evidence of criminal activity, the probable cause standard

merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,’ that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, non-technical probability that incriminating evidence is involved is all that is required.’

Commonwealth v. Daniels, 406 Pa.Super. 112, 593 A.2d 895, 898-899 (1991) (citing [Commonwealth v. ] Kendrick, supra, 340 Pa.Super. [563] at 571, 490 A.2d [923] at 927 [1985]) (quoting Texas v. Brown, 460 U.S. 730, 741-43, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 513-14 (1983)).

As noted above, officers knew that appellant’s van was used to transport appellant and his cousin to and from the victim’s house on the day she was killed. More importantly, however, is the fact that appellant’s cousin informed police officers that he and appellant made a phone call to the victim’s residence on the day of the murder. With this information in mind, we find that sufficient probable cause existed to believe the cellular phone would be “useful as evidence of a crime” as required by the applicable standard. Therefore, we conclude that the cellular phone was properly seized pursuant to the plain view exception.

Appellant asserts in his second issue for review that an improper subpoena was used to obtain his cellular phone records for March 3, 1993, thus warranting suppression of such evidence. A subpoena was issued on May 12, 1993, requesting the telephone company to produce the phone records of appellant’s cellular phone. Subsequently, a valid search warrant was issued requesting the same phone records. Appellant’s phone records showed two unanswered calls made to Mrs. Bishop’s residence at approximately 10:07 p.m. on March 3, 1993.

At the time the subpoena was issued, appellant had only been arrested and preliminarily arraigned. No trial date had been set, and the criminal information was not filed until more than two weeks after the subpoena was issued. Appellant correctly observes that a “prerequisite to the issuance of a subpoena [is] that there be some pre-existing matter or cause pending before the court.” Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394, 395-96 (1987) (quoting Commonwealth v. Polak, 438 Pa. 67, 263 A.2d 354 (1970)). Additionally, subpoenas are not to be used to compel production of documents merely for inspection or for a “fishing expedition”. Cohen v. Pelagatti, 342 Pa.Super. 626, 632, 493 A.2d 767, 770 (1985). In the present case, it is clear that there was no formal proceeding before the court.

Although the use of the subpoena to obtain appellant’s phone records was unlawful, it is not necessarily true that all subsequently obtained evidence is subject to suppression. In Commonwealth v. Shaw, 476 Pa. 543, 555, 383 A.2d 496, 502 (1978), the Pennsylvania Supreme Court said, “[i]n deciding-whether a warrant issued in part upon information obtained through exploitation of illegal police conduct is valid, we must consider whether, absent the information obtained through the illegal activity, probable cause existed to issue the warrant.” Commonwealth v. Riffert, 379 Pa.Super. 1, 549 A.2d 566, 573 (1988) (quoting Shaw). Furthermore, evidence seized pursuant to a legal warrant, independent of the initial illegal conduct, is not subject to suppression. Commonwealth v. Camperson, 437 Pa.Super. 355, 650 A.2d 65, 70 (1994).

The affidavit of probable cause for the search of appellant’s cellular phone records was not based on any information obtained through the subpoena. And, as previously discussed, there was sufficient probability that appellant’s phone records would reveal information useful to solving this crime. Therefore, we find that, although the subpoena was issued improperly, the cellular phone records were obtained lawfully pursuant to an independent search warrant.

Appellant’s third issue proposes the question of whether an additional warrant is necessary to search the memory chip of a validly seized cellular telephone. It has been held that a warrant authorizing the seizure of a personal computer authorizes reproduction of the documents stored within. Commonwealth v. Copenhefer, 526 Pa. 555, 587 A.2d 1353, 1356 (1991). Copenhefer goes on to comment that the Commonwealth should not be prohibited from utilizing technological advances in analysis techniques on validly seized physical evidence. Id. The memory chip in a cellular phone is analogous to the memory of a personal computer in that both simply store information for later use. Accordingly, we find that an additional warrant was not necessary prior to inspection of the memory chip of appellant’s cellular phone.

We turn now to appellant’s fourth issue for review that the evidence presented was insufficient to sustain his conviction for the offenses charged. Appellant contests specifically that the evidence was insufficient to place appellant at the victim’s residence at the time of the homicide. The applicable standard of review is “whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286, 1288 (1984); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 488 A.2d 29, 31-32 (1985).

Applying the aforementioned standard, we find that the record reveals the following: Appellant and his cousin were at the victim’s residence on the afternoon of the murder, March 3, 1993, at which time they observed a large sum of money. Appellant and his cousin were left alone with the victim at 5:00 p.m. The victim’s time of death was estimated between 9:00 p.m. and 11:30 p.m. on March 3, 1993. Subsequent investigations revealed that the perpetrator entered the victim’s home through a basement window, took her money and killed her. Paint chips found in appellant’s jacket worn on that day were consistent with paint chips found on Mrs. Bishop’s hands, and both samples were consistent with the paint around the basement window. Fibers were found on the victim which were consistent with the clothing appellant was wearing on that day. Phone records revealed that two unanswered phone calls were made from appellant’s cellular car phone to the victim’s home at approximately 10:07 p.m. on March 3, 1993. Also, Mrs. Bishop’s neighbor testified that she heard the sound of breaking glass between 10:00 p.m. and 10:30 p.m. on the night of the murder. Further, appellant was not seen at Shane’s between shortly after 6:00 p.m. and 12:00 a.m. Thus, appellant offered no evidence to support his alleged alibi. Finally, appellant made statements to police officers which indicated his involvement in the charged crimes.

Upon review, we find that the evidence, when viewed in a light most favorable to the Commonwealth as the verdict winner, was sufficient to sustain appellant’s convictions on charges of murder, burglary, robbery and conspiracy. Specifically, the physical evidence placed appellant proximate to the victim at the time of her death. Upon initial interrogation by police, appellant gave a statement implicating himself in the murder, albeit in a diminished role. Further, appellant knew the money to exist, and those funds were missing after the victim’s murder.

We now turn to the merits of appellant’s final issue for review. Appellant claims that admission of his statements that he “wanted to tell what happened” and “do the right thing”, coupled with the testimony that he did not give a statement to the police constituted an impermissible comment on his right to remain silent. At the pre-trial conference, the trial judge ruled that the Commonwealth could enter appellant’s statements that he wanted to do the right thing and that he knew what the right thing was. The Commonwealth was prohibited from introducing appellant’s statement that he didn’t want to do anything stupid without the presence of his attorney. Specifically, the trial judge ordered that “[t]he jury then should not be informed beyond the fact that subsequent thereto there was no statement mude.” T.T. p. 41, lines 15-20.

The record reveals the following exchange between the prosecutor and Corporal Freehling occurred at trial:

A. I again began to advise Mr. McEnany of his constitutional rights.
Q. Right to remain silent and all that?
A. Yes, sir.
Q. Did you get all the way through the rights before anything else was said?
A. No, sir.
Q. Who said something in the middle of you reading the rights?
A. A [sic] partial way through it, my reading the rights again off the form to Mr. McEnany he stated he wanted to do the right thing and he knew what the right thing was.
Q. Did you ever end up getting a statement from him?
A. No, sir, I did not.

N.T. 413, lines 4-19.

In this jurisdiction, the law regarding reference to an accused’s right to silence is well settled.

The law is clear. It is reversible error to admit evidence of a defendant’s silence at the time of his arrest. The prohibition of any reference to an accused’s silence reflects the court’s desire that an accused not be penalized for exercising his constitutional rights. It is a recognition that most lay persons would view an assertion of the constitutional privilege as an admission of guilt.

Commonwealth v. Hyneman, 424 Pa.Super. 415, 419, 622 A.2d 988, 990 (1993) (quoting Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826, 828 (1976)).

In the present case, the Commonwealth presented direct evidence of appellant’s post-arrest silence. The officer testified that when he informed appellant of his right to remain silent, appellant stopped him and stated that “he wanted to do the right thing.” Thereafter, in response to the Commonwealth’s question, “Did you ever end up getting a statement from him?, the officer replied, “No.” By offering such evidence, the Commonwealth expressly informed the jurors that appellant exercised his right to remain silent. We are convinced that this was an improper reference to appellant’s exercise of his constitutional privilege from which the jury might infer an admission of guilt. Hyneman, supra. Consequently, appellant must be afforded a new trial which is free from the taint of impermissible comment upon his right to remain silent.

Judgment of sentence reversed. Case remanded for a new trial in accordance with the provisions of this opinion. Jurisdiction relinquished.

      . Appellant also raised the following issues which need not be addressed because we have remanded this case for a new trial:
      1. Did the trial court err by refusing to charge the jury that the prior inconsistent statements of witnesses could be considered as substantive evidence and used for impeachment purposes.
      2. Did the trial court err by failing to instruct the jury that the Commonwealth had the burden to disprove appellant’s alibi beyond a reasonable doubt.
      3. Was the verdict against the weight of the evidence.
      4. Did the trial court abuse its discretion by imposing consecutive sentences for the charges of burglary and conspiracy to the life sentence of second degree murder.

      . Appellant summarily contests the probable cause set forth in the search warrants for appellant’s residence and for appellant’s cellular telephone records also. These two affidavits cite the same information that is within the affidavit for the van. In addition thereto, the affidavit for the residence describes clothing worn by appellant on March 3, 1993 as seen by Mrs. Bishop’s daughter. The affidavit for the phone records additionally states that a phone was found within appellant’s van with Mrs. Bishop’s home phone number being the last number dialed. After reviewing both of these warrants using the same analysis as for the warrant for the van, we find that sufficient information existed for the issuing authority to determine the existence of probable cause.

      . We note, the use of the phrase "any other contraband or evidence related to this crime” turns a search warrant into a general investigatory tool in violation of the Fourth Amendment to the United States Constitution and Article 1 § 8 of the Pennsylvania Constitution. Commonwealth v. Bagley, 408 Pa.Super. 188, 197, 596 A.2d 811, 815 (1991).

      . Reference to an accused's silence could be harmless error if corrected by adequate cautionary instructions, especially in the case of an indirect reference by the prosecution. Hyneman, supra. Although this case involves a direct reference to post-arrest silence, no cautionary instruction was given.