author: KELLY, Judge: OLSZEWSKI, Judge, JOHNSON, Judge,

text:
    585 A.2d 520
    Damon JONES, Appellant, v. David RUDENSTEIN, Esq., Appellee.
    Superior Court of Pennsylvania.
    Submitted Oct. 16, 1989.
    Filed Jan. 24, 1991.

      Damon Jones, appellant, pro se.
    David S. Rudenstein, Philadelphia, pro se.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   KELLY, Judge:

The instant case involves a pro se appeal from a judgment of non pros entered against a pro se litigant upon an attorney malpractice claim arising from appellant’s unsuccessful post-verdict challenge to prior counsel’s effectiveness in the trial which resulted in his conviction of first degree murder. We affirm.

As with many cases involving pro se litigants, the procedural history is obscure and confused, and the record contains gaping omissions. Nonetheless, we glean the following from the record here on appeal.

On October 15, 1987, appellant filed a complaint asserting claims for attorney malpractice against appellee seeking compensatory and punitive damages. The underlying basis for the claim was explained in the complaint as follows.

In May 1983, appellant was convicted of first degree murder. After trial appellant filed a pro se motion for withdrawal of trial counsel and appointment of new counsel alleging eleven instances of ineffective assistance of counsel. Prior counsel was permitted to withdraw and present appellee was appointed as counsel.

Following appointment of appellee, appellant filed a pro se brief in support of the eleven claims of ineffectiveness previously asserted in the pro se motion. Appellee subsequently filed counselled supplemental post-verdict motions and a brief in support thereof. Appellant subsequently filed another pro se motion and memorandum of law in support of five additional grounds for post-verdict relief. Later, appellant filed two more pro se contentions.

An evidentiary hearing was conducted, at which appellee questioned prior counsel regarding various ineffectiveness claims. Appellant’s complaint against appellee is that appellee failed to ask prior counsel a list of questions (not in the record) which appellant prepared relating to the grounds asserted by appellant pro se, and in failing to otherwise question appellant regarding those grounds.

The complaint fails to indicate the disposition of the post-verdict motions, or whether any appeal or post-conviction relief proceedings followed. The complaint nonetheless seeks compensatory and punitive damages in the amount of $20,000, and such other relief as the court should deem proper.

Judgment of non pros was entered on December 8, 1988. Appellant contends that he sent a petition to open on December 14,1988, but that it was returned unfiled because the judgment of non pros had not yet been docketed. On December 27, 1988, appellant filed notice of appeal. On January 2, 1989, appellant filed a praecipe for entry of an adverse order. On January 10, 1989, the Judgment of Non Pros was finally entered on the docket. Rather than resubmitting his petition to open, appellant proceeded with the instant appeal.

On appeal appellant contends the trial court abused its discretion in entering the non pros. We cannot agree.

When reviewing the entry of a judgment of non pros, it is well settled law that the decision will not be reversed on appeal absent an abuse of discretion on the part of the trial court. Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988). This Court has recently determined that a party may file a direct appeal from the entry of a judgment of non pros without filing a petition to open the judgment prior to the filing of an appeal. Valley Peat & Humus v. Sunnyland Inc., 398 Pa.Super. 400, 581 A.2d 193; (Johnson, J., dissenting); Williams v. Gallagher, 396 Pa.Super. 584, 579 A.2d 403 (1990) (Johnson, J., dissenting). In order to establish grounds to open a judgment non pros, a petitioner must demonstrate:

1) the petition to open was timely filed;
2) the default can be reasonably explained; and,
3) facts in support of a proper cause of action are alleged.

See Walt Medical v. Electro Nucleonics, 400 Pa.Super. 274, 583 A.2d 492 (1990). Setting aside the first requirement as arguably problematic in this case, it is clear that appellant’s omitted petition fails to demonstrate either of the remaining requirements standing alone, or reading the petition in conjunction with the record as a whole.

Citing Salladino v. Brooks, 324 Pa.Super. 172, 471 A.2d 518 (1984), appellant asserts that his non-appearance was excused by the fact of his incarceration. Appellant however fails to note a material and dispositive distinction between his case and Salladino. In Salladino, counsel for the incarcerated plaintiff had taken all the steps available to secure the incarcerated plaintiff’s appearance; consequently, plaintiff’s non-appearance in Salladino was not plaintiff’s fault. 471 A.2d at 520-21 & n. 2. Here, appellant failed to take any steps prior to entry of judgment non pros to ensure his availability for the proceedings.

Appellant apparently labors under the false assumption that by proceeding pro se he is absolved of all responsibility to comply with procedural rules, and that the appellee and/or the court had some affirmative duty to walk him through the procedural requirements, or to ignore the procedural requirements, in order to reach the merits of his claim. Such is not the case. The United States Supreme Court has explained:

The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.

Farretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2540 n. 46, 45 L.Ed.2d 562, 581 n. 46 (1975); see also Wiegand v. Wiegand, supra, 525 A.2d at 774. Thus, appellant’s default is not reasonably explained in his petition to open.

Moreover, and perhaps even more importantly, appellant’s underlying complaint fails entirely to establish a legitimate cause of action. Appellant has failed to aver facts sufficient to establish proximate cause or causation in fact with regard to his underlying attorney malpractice claim.

In Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112 (1988), this Court explained that four things must be established to prove a claim of attorney malpractice:

1) the employment of the attorney or other basis for a duty to act on the part of the attorney;
2) the failure of the attorney to exercise ordinary skill and knowledge;
3) that such negligence was the proximate cause of damage to the plaintiff; and,
4) that the plaintiff would have succeeded on the underly- • ing claim but for the attorney’s negligence.

551 A.2d at 1115. Here, as in Ibn-Sadiika, appellant failed entirely to aver facts which, if proved, would establish either proximate causation with respect to damages or actual cause in that but for counsel’s alleged negligence the damages claimed would not have been incurred. While amendment might be permitted or required in other circumstances, here as in Ibn-Sadiika, the allegations of ineffectiveness “are appallingly vague and conclusory,” and would weigh heavily against allowance of amendment even if this were a simple appeal from summary judgment. 551 A.2d at 1117.

The unique procedural posture of this case, however, precludes allowance of amendment to state a claim. Here, rather than appealing summary judgment, appellant seeks to open a judgment of non pros. As stated earlier in this opinion, it is well settled that a party seeking to open a judgment of non pros via a petition to open must set forth the existence of a proper underlying claim. See Walt Medical v. Electro Nucleonics, supra. Accordingly, it follows that an appellant who bypasses the petition to open process before the trial court and files a direct appeal to this Court must also meet the requirement of stating a proper cause of action. Instantly, appellant has failed to meet his burden of setting forth a proper cause of action. Therefore, we are constrained to allow the trial court’s entry of judgment of non pros to stand.

Order Affirmed.

OLSZEWSKI, J., joined the majority opinion and filed a concurring statement.

JOHNSON, J., filed a dissenting opinion.

OLSZEWSKI, Judge,

concurring statement:

I wholeheartedly join Judge Kelly’s disposition of this case. I write only to address the concerns raised by Judge Johnson’s dissent.

As an intermediate appellate court, we are bound to follow the law as announced by our Supreme Court. Val ley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 405, 581 A.2d 193, 195 (1990), petition for alloc. filed, 979 E.D.Alloc.Dkt.1990, Nov. 5, 1990. As a panel of this Court, we are also powerless to overturn en banc decisions.

The dissent correctly notes that this case is identical to Williams v. Gallagher, 396 Pa.Super. 584, 579 A.2d 403 (1990). That decision establishes the propriety of the analysis of Judge Kelly’s opinion. Were Williams a panel decision of this Court, stare decisis would lead me to approve of the analysis the dissent finds objectionable. As an en banc decision, Williams leaves us no choice but to employ that analysis. Therefore, I concur in the majority opinion.

JOHNSON, Judge,

dissenting.

When Damon Jones failed to appear at the call of the trial list on December 8, 1988, the Honorable Abraham J. Gafni entered a judgment of non pros. This was nothing more nor less than is contemplated by Pa.R.C.P. 218. Without filing any petition to remove the non pros, Jones appeals directly to this court.

This case is both factually and procedurally identical with Williams v. Gallagher, 396 Pa.Super. 584, 579 A.2d 403 (1990). Both cases involve a criminal defendant/plaintiff suing his attorney for legal malpractice. As occurred in Williams, the majority in this case would utilize a three-prong test to determine whether grounds exist to support the opening of the judgment of non pros. As in Williams, the majority refuses to distinguish between (1) a direct appeal from the order entering a non pros and (2) an appeal from an order granting or denying a petition to remove the judgment of non pros.

By refusing to recognize the difference, the majority attempts to analyze and evaluate a non-existent petition to open or remove the judgment and then proceeds to analyze and evaluate the underlying complaint, as if a demurrer to the complaint was before us for review. I find troubling the references by the majority to Jones’ “omitted petition”, at page 522, and “his petition to open”, at page 522. There is no petition to open included in the certified record in this case.

Moreover, the docket entries certified to this court by the Prothonotary in and for Philadelphia County on June 28, 1989 and December 31,1990 contain absolutely no reference to either a petition to open or any attempt to file such a document. My colleagues apparently are willing to ignore Damon Jones’ malpractice in this malpractice action and review Jones’ claims as if a petition to open had been filed!

In Williams v. Gallagher, supra, I agreed completely with the most distinguished trial judge, Judge Gafni. I reviewed the certified record in that case and concluded that:

Judge Gafni appropriately limited himself to those matters which had been properly placed before him, both in administering the call of the list and in complying with Pa.R.A.P.1925. Were we to do the same, we would find no abuse of discretion on the part of the most distinguished trial judge.
... We need only determine what facts were available to Judge Gafni at the moment he entered the judgment of non pros. Until either [in this case—Jones] or the majority cites to something specific in the record certified on this appeal, which cited information was available to, and should have been known by, Judge Gafni at the time the list was called, I will continue to afford Judge Gafni the respect and credibility which is his due.

Williams v. Gallagher, 396 Pa.Super. at 590, 579 A.2d at 406, (Dissenting Opinion, Johnson, J.).

I reach the identical conclusion, on identical facts and identical reasoning, in the case before us. The reasoning and analysis contained in the majority opinion on this appeal parallels that contained in the majority decisions in Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (1990), petition for alloc. filed 979 E.D.Alloc.Dkt. 1990, November 5,1990, and Williams v. Gallagher, supra. I have attempted to set forth my position concerning these cases involving Pa.R.C.P. 218 in my dissents to those cases. 398 Pa.Super. at 411-419, 581 A.2d at 198-202; and 396 Pa.Super. at 588-591, 579 A.2d at 405-407.

My colleagues on the lead opinion suggest that the procedural history of this case is obscure and confused. I cannot agree.

The certified record is quite clear. Judge Gafni executed an order, dated December 8, 1988, which entered judgment of non pros. Copies of the order were sent to the parties on December 9, 1988. The order was filed in the Prothonotary’s Office in the First Judicial District on December 13, 1988. There are no pleadings contained within the certified record to support Jones’ contentions in his brief regarding any petition to open.

Only facts that appear in the record may be considered by this court on review. An appellate court cannot, and should not, consider anything which is not a part of the record in the case. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 214-215, 489 A.2d 1291, 1296 (1985); Commonwealth v. Young, 456 Pa. 102, 114-116, 317 A.2d 258, 264 (1974); McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 218-20, 527 A.2d 1028, 1032-33 (1987).

Until our court filed its decisions in Williams, supra, Valley Peat & Humus, supra, and Elcomp, Inc. v. Drolet, 398 Pa.Super. 203, 581 A.2d 203 (1990), the procedure to follow in cases involving Rule 218 was, in my view, quite clear. See Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988); Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986).

The only order from which an appeal has been taken, and which is presented to this panel for review, is Judge Gafni’s order of December 8, 1988 entering judgment of non pros upon failure of a party to appear at the call of the list. I fail to see what a non-existent petition to open, or the allegations contained in the complaint, might have to do with the review of that order. As in Williams v. Gallagher, the only issue before us on this appeal is this:

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

I strongly believe that the answer to that question must be a simple yes, without embellishment. Since the lead opinion employs a manner of decision that seems to rely upon the majority opinions in Valley Peat & Humus, and in Williams, I must dissent. I agree that the order entering judgment of non pros must be affirmed, but for the reasons cogently and concisely set forth by Judge Gafni in his Opinion dated 6/15/89, and for no other reasons.

Where an appeal has been taken directly to an appellate court without the previous filing of a motion to vacate the judgment of non pros and without the evidentiary hearing which would follow, how can we expect our trial judges to divine whether the default that occasioned the entry of judgment can be reasonably explained? I feel we are placing an impossible burden upon our trial judges. I dissent.

      . Appellee’s brief indicates that the post-verdict motions were denied, and a sentence of death was imposed on December 30, 1987. These facts, however, are not of record in the instant case.


source: Caselaw Access Project

author: MONTEMURO, Judge: JOHNSON, Judge,

license: Public Domain

text:
    585 A.2d 525
    COMMONWEALTH of Pennsylvania v. Anthony D’ANGELO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 81, 1990.
    Filed Jan. 24, 1991.

      Alfred Marroletti, Philadelphia, for appellant.
    Maxine Stotland, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

This appeal comes before an en banc court on the Commonwealth’s petition for reargument following our reversal of appellant’s bench conviction on two counts of violating 18 Pa.C.S.A. § 4701, Bribery in official and political matters. The sentence imposed was two years non-reporting probation and a $5,000 fine. We reverse.

The convictions stem from appellant’s acceptance, on two separate occasions, of cash handed to him by an undercover police officer investigating allegations of corruption in the Philadelphia Bureau of Licenses and Inspections. Appellant, the supervisor of district one, covering much of downtown Philadelphia, was approached by Detective Edward Dooley posing as a financial consultant for a group of investors interested in center city property, who “needed the cooperation of L. & I.” (N.T. 7/14/87 at 22) Appellant had been named by another district supervisor as the person who “knew it all in Center City.” (N.T. 7-14-87 at 20). All of Officer Dooley’s contacts with appellant, whether in person or over the telephone, were electronically recorded.

The principal issue presented is whether the evidence is sufficient to support appellant’s conviction.

The statute under which appellant was prosecuted, 18 Pa.C.S.A. § 4701 reads as follows:

§ 4701. Bribery in official and political matters (a) Offenses defined.—A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
(1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient;
(2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding; or
(3) any benefit as consideration for a violation of a known legal duty as public servant or party official.

Before surveying the circumstances surrounding each of the incidents charged in this case, we reiterate the time-honored standard against which challenges to sufficiency of the evidence must be measured:

The test of the sufficiency of the evidence in a criminal conviction is whether, accepting as true all the evidence and all the reasonable inferences therefrom, upon which if believed the [factfinder] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.

Commonwealth v. Thomas, 465 Pa. 442, 445, 350 A.2d 847, 848 (1976).

The evidence offered by the Commonwealth at trial consisted mainly of the testimony of Officer Dooley, as the tapes were not utilized by the prosecution. The officer’s version of the most critical portions of the exchange differ significantly from the transcripts, and are informed by his assumptions as to the meaning of appellant’s words rather than by any empirical knowledge of wrongdoing. The contact in L & I who had originally referred Officer Dooley to appellant had himself accepted money during the course of the investigation. On the basis of his previous experience, therefore, Officer Dooley acted upon the tip in anticipation that the objective of the operation, that is, discovery of corruption was in fact fulfilled at that point.

Our review of the record in this case included the testimonial as well as transcribed versions of appellant’s exchanges with the undercover officer. Upon comparing Officer Dooley’s evidence at trial with the documents recording the exact words of the parties, we became convinced that his testimony is grounded so firmly in preconceptions as to render meaningless his pronouncements of what transpired at his meetings with appellant. Despite the fact that all reasonable inferences must inure to the verdict winner, Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983), evidence, either circumstantial or direct, must be offered to support them. We cannot say unequivocally that such evidence exists here. In Derr, our supreme court found that although the appellant had arranged with an undercover police officer to procure hashish, had received money therefor, and had delivered as promised, there was no proof of appellant’s agreement with a third party to support a conviction for conspiracy. We find the analogue with the instant case instructive.

The first charged offense occurred at the conclusion of a lunch in a French restaurant chosen by the detective. After discussion of the detective’s “needs as a business consultant” (N.T. 7/14/87 at 21), and of his “clients’” intention to invest substantial sums of money in the Philadelphia real estate market, appellant was reported to have responded, “anything I can do for you, you know, I’ll do anything I can.” (N.T. 7/14/87 at 22) Appellant was also reported to have offered the services of his inspectors to examine proposed investment sites, but without knowing why, in order to provide the speculators group with information on the condition of the buildings for investment purposes. As the discussion concluded, Detective Dooley handed appellant his business card and three one hundred dollar bills.

On a later occasion, after appellant had accompanied the detective on an hour and a half tour of properties he felt to be suitable for development, Dooley fanned out a group of twenty and fifty dollar bills and presented them to appellant, who selected a fifty and exited the vehicle.

During the course of the relationship between appellant and the supposed investment consultant, appellant offered advice and information on a number of topics, such as the availability of certain properties, and the best way of handling certain situations which had arisen, e.g., a problem with some plumbing installation which was not done according to the Municipal Code, and for which a violation had been issued by L & I. However, as appellant’s supervisor testified, the information supplied was readily available to members of the public. The tactical advice, given in response to Detective Dooley’s attempts at subornation, were consistently exhortations to do things according to established protocol. Again using the plumbing violation as an example, the detective was told not to himself interfere or to employ any third person, but to hire a registered plumber to handle the problem. He was also told at various times to work with a good zoning lawyer, to acquire all permits before spending even $.25 on a project, to approach the Redevelopment Authority with prospective plans, and in all respects to follow the rules. There was never an offer by appellant to perform any non-legitimate service, and no request from the detective meant to elicit such a response was successful.

This court in Commonwealth v. Clarke, 311 Pa.Super. 446, 449, 457 A.2d 970, 972 (1983), held that:

Under the Crimes Code section proscribing bribery in official and political matter, once the offer to confer the proscribed benefit, or once an agreement is made, the crime is complete.

The statement of the Clarke court that only the benefit need be conferred for the crime to be complete, is slightly misleading, and depends for its validity upon context as an examination of the caselaw makes clear. In Clarke itself, both the benefit and the desired (official) act were clear to all participants: appellants, tavern owners, wished the cooperation of a police officer in circumventing the Pennsylvania Liquor Code. In Commonwealth v. Ohle, 291 Pa.Super. 110, 435 A.2d 592 (1981), also, an agreement had been reached. Specifically, the parties had determined that appellants would receive kickbacks on government automobile insurance contracts from the Director of the Pennsylvania Bureau of Insurance. In Commonwealth v. Weselyk, 268 Pa.Super. 569, 408 A.2d 1149 (1979) appellants, Commonwealth revenue officials, offered to split sales taxes due on the informant’s airplane. In each of the instances cited the terms under which the parties were operating had been made clear from the outset. Although appellant in the instant case received money, there is no mutual understanding evident. Neither a true offer, nor any agreement is discernable. See also, Commonwealth v. Peetros, 517 Pa. 260, 535 A.2d 1026 (1987); Commonwealth v. Clapps, 355 Pa.Super. 80, 512 A.2d 1219 (1986), aff'd 520 Pa. 305, 554 A.2d 10 (1989).

The question, therefore, is whether appellant’s acceptance of the money, in conjunction with his expression of cooperation, transforms his general promise into a discrete agreement to “violate a known legal duty” which falls within the ambit of the statute.

Appellant’s offer of help is viewed as unequivocal evidence of his willingness to perform illegal act or acts, and in fact forms the major underpinning of the charge. However, it is to be noted that nowhere does there appear discussion of payment, or indeed of any quid pro quo. Just prior to the hand-over, appellant described what he felt to be his duty under the circumstances as he saw them—he owed his cooperation to any legitimate person willing to spend such significant sums in the city as he understood was the investors’ intention. It was only after that the money changed hands, and there is no indication that appellant was aware it was coming.

Further, what appellant meant by his cooperation becomes clear in his responses to Officer Dooley’s suggestions of improper activity, e.g., removal of a violation. At no time did appellant react to these overtures with anything other than directives that Officer Dooley should follow the rules. No understanding of what service appellant was to perform is ever made clear, there was admittedly no direct request for anything illegal, and the information which passed from appellant to the investor were matters of public knowledge. Therefore, while we find appellant’s acceptance of the money to have been unwise, indeed, highly inappropriate, there is nothing in the record which supports interpreting his acceptance as a bribe under the Act; the statutory requirement that there be some exchange involved is totally lacking. The existing caselaw offers an interesting counterpoint.

In arguing that the requirements of § 4701 have been met, the Commonwealth emphasizes that appellant agreed to assist the erstwhile investor in locating properties, and in “smoothing” over any problems which might arise with L & I. However, as the record reveals, nothing illicit was done in regard to either of these promises, which, from their equivocal nature may never have been intended to be improper. We have only Officer Dooley’s interpretation of the words, an interpretation which is not necessarily supported by a recitation of the words themselves as they appear in transcription, and which is actually belied by appellant’s actions. While the Commonwealth states that any expectation of intelligible agreement between the parties is unreasonable, since the language of illegal compact must necessarily be guarded, the cases cited above demonstrate that lucidity is in fact commonplace. The Commonwealth’s further insistence that the terms of the contract exist and are clear, i.e., fee for service, throws us back upon the parties’ own words which fail to compel an interpretation of intended illegality. We are therefore back where we began, with appellant’s wholly inappropriate, although not illegal acceptance of cash. This alone is not sufficient to activate the statute, or to prove his guilt beyond a reasonable doubt.

The equivocal nature of the understanding between the parties is demonstrated again by the officer’s testimony regarding appellant’s alleged offer to provide the investors with the results of “courtesy inspections” of prospective investment sites. These reports would be prepared by appellant’s subordinates without knowledge of their purpose. The transcript of this conversation does not clearly indicate that such an arrangement was contemplated by appellant. Instead, the officer provides his interpretation of the conversation filtered though the preconception that appellant was ready and willing to act in violation of his legal duty. The record fails to support his premise.

The Commonwealth would prefer that we examine this case only from the perspective of Officer Dooley, and that we ignore whatever does not comport with his view. However, as the standard for assessing the sufficiency of the evidence indicates, we are obligated to accept as true all of the evidence upon which the factfinder could have based its verdict, not merely that portion of the evidence proffered by the prosecution. Moreover, we need only consider the reasonable inferences to be drawn from all of the evidence, not those which proceed from the interest of a witness in the outcome. We are led by the conflicts between' the testimonial and the transcribed versions of events to conclude that there is reasonable doubt as to whether the requirements of the statute are met.

The second charge grew out of appellant’s offer to provide the officer with a guided tour of investment possibilities. Appellant’s supervisor testified with regard to this incident that nothing appellant told the detective was other than public information, and that nothing prohibited such a tour except the press of work and a one hour lunch policy.

In fact, appellant’s behavior tracks a Model Penal Code Comment appearing in S. Toll, Pennsylvania Crimes Code Annotated (1974) at 526.

Section ... [4701] follows prevailing law in proscribing bribery in decision-making ... this makes it clear that the bribery section does not apply to: (a) situations where the law contemplates payment of fees for services rendered by a public servant; or (b) tips or other compensation for services rendered by a public servant consistently with his duties. We recognize that the practice of tipping or paying minor officials for services which it is their duty to perform gratis is an evil against which administrative and legislative action is appropriate. However, the practice is widespread and even open in some quarters, indicating that community standards of behavior in this area have not yet crystallized sufficiently to warrant the application of penal sanction in most cases. Accordingly, the primary means of social control should be by enforcement of discipline within the civil service, and by special legislation carrying minor penalties, outside the Penal Code.

In accord with this comment, we conclude that appellant’s receipt of money in return for his investment “advice” and distribution of public information is simply insufficient to constitute a violation of § 4701.

Therefore, lacking evidence either of overt action, or an agreement to take such action, we find no proven violation.

Judgment of sentence vacated.

JOHNSON, J., dissents in which ROWLEY, WIEAND and BECK, JJ., join.

JOHNSON, Judge,

dissenting.

I agree with the majority that the evidence was insufficient to sustain the second count of appellant Anthony D’Angelo’s conviction for bribery involving his acceptance of $50.00. However, I would conclude that the evidence, which consists primarily of Officer Dooley’s testimony, is sufficient to sustain the bribery conviction for accepting $300.00 as consideration for D’Angelo’s promise to violate his duties as a public servant. A reviewing court may not, as does the majority, revisit the trial court’s decision that Dooley’s testimony was credible, reject it and then determine that the remaining evidence is insufficient. Because Officer Dooley’s testimony provides sufficient evidence to convict D’Angelo, I must dissent.

At trial, the Commonwealth relied principally upon Dooley’s testimony. It was D’Angelo who introduced the transcripts of the taped conversations into evidence, apparently while Dooley was on the stand. D’Angelo’s defense was that the transcripts did not support Officer Dooley’s interpretation of the conversations. This defense, though plausible, failed; the factfinder found Dooley credible despite the transcript. Although the transcripts lacked coherence, partly because the tape was inaudible in places, they do not contradict Dooley’s testimony. The majority concludes that the parties’ words, as testified to by Dooley, when considered along with the transcripts, fail to compel an interpretation of intended illegality:

We have only Officer Dooley’s interpretation of the words, an interpretation which is not necessarily supported by a recitation of the words themselves as they appear in transcription, and which is actually belied by appellant’s actions.

Opinion by Montemuro, J. at 416-418.

The majority improperly substitutes its own credibility determination for that of the factfinder, in this case, the trial court. It is a basic tenet of our system of jurisprudence that issues of credibility are properly left to the trier of fact for resolution. Commonwealth v. Fahy, 512 Pa. 298, 308, 516 A.2d 689, 694 (1986). The finder of fact is entitled to give credence to witnesses’ testimony, and we must defer to the court’s determination of Dooley’s credibility and acceptance of his recollection of the meeting. The significant phrase in our standard of review is “all the evidence and all the reasonable inferences therefrom, upon which if believed the [factfinder] could properly have based his verdict.”

While a jury is not permitted to return a guilty verdict where the evidence offered is so unreliable or contradictory as to make any verdict based upon it pure conjecture, Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976); Commonwealth v. Maute, 336 Pa.Super. 394, 406, 485 A.2d 1138, 1144 (1984), this rule applies only to those cases in which the testimony is so patently unreliable that any decision based upon it would be pure conjecture. Commonwealth v. Upsher, 497 Pa. 621, 625, 444 A.2d 90, 92 (1982). Contradictions by other witnesses and prior inconsistent statements affect the credibility of the witness and do not render testimony patently unreliable under the Farquharson standard. Id.

We have written, with regard to the function of credibility in determination of a verdict:

Mere evidence of a conflict in the prosecution’s evidence is not fatal to its case, ... because the Commonwealth is not bound by everything its witnesses say, and the jury can believe all, part, or none of the testimony (citation omitted). The applicable standard is whether the evidence, taken as a whole, would support a verdict. Commonwealth v. Farquharson, [467 Pa. 50, 60, 354 A.2d 545, 550 (1976)].

Maute, 336 Pa.Super. at 406, 485 A.2d at 1145. In other words, construing evidence in the light most favorable to the Commonwealth does not mean merely that we are to look only to the Commonwealth’s evidence. Even if the Commonwealth’s evidence is contradictory and inconclusive in itself, we must look to the entire record to find enough evidence to constitute sufficiency; we grant great deference to the finder of fact. Of course, in doing this we disregard the evidence which does not support the verdict. That a reviewing court must look at the evidence taken as a whole if the Commonwealth’s evidence alone is insufficient to support the verdict rendered cannot mean what the majority implies, that a reviewing court may disregard the trial court’s credibility determinations and re-examine evidence on both sides of a credibility conflict.

The majority’s analysis, although set forth as a sufficiency determination, actually amounts to a re-examination of the weight of the evidence; it ultimately examines all the evidence, not just the evidence encompassed by our standard of review for sufficiency. Although D’Angelo abandoned the challenge to the weight of the evidence on appeal, I will respond to the majority’s discussion that essentially reviews the weight of the evidence.

In reviewing a challenge to the weight of the evidence, we start with the presumption that the evidence was sufficient and examine whether, nevertheless, the evidence preponderates so heavily against the verdict that a serious miscarriage of justice may have occurred. Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. denied, Vogel v. Pennsylvania, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984); Commonwealth v. McLean, 396 Pa.Super. 23, 578 A.2d 4 (1990). Under this standard, assuming that the transcript of the taped conversations were totally inconclusive, we still have Officer Dooley’s testimony, which we may not discount once the factfinder accepts it as credible. As the Supreme Court of Pennsylvania wrote in Commonwealth v. Farquharson:

Traditionally under our system of jurisprudence, issues of credibility are left to the trier of fact for resolution. (Citations omitted). While there may be some legitimacy for a trial court, who has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying solely upon a cold record, to exercise such a function.
“On appellate review of a criminal conviction, we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact. Commonwealth v. Woodhouse, 401 Pa. 242, 261, 164 A.2d 98 (1960). To do so would require an assessment of the credibility of the testimony that is clearly not our function.”

Commonwealth v. Farquharson, 467 Pa. at 59-60, 354 A.2d at 550 (additional citations omitted).

The majority does not assert that Officer Dooley’s testimony, taken by itself, is insufficient. In its ensuing analysis of the sufficiency/weight of the evidence, the majority, having decided that Dooley’s testimony is not credible, completely disregards it and examines only the transcript. This a reviewing court may not do. Dooley’s testimony, which was proper evidence before the factfinder, contains sufficient evidence which, if believed, supports a conviction for bribery of a public official. Officer Dooley’s testimony constitutes the entire body of evidence in support of the guilty verdict. We may not disregard it.

Furthermore, as a witness, Officer Dooley was not testifying as a mere “interpreter” of a cold transcript. If he were, and if his testimony were challenged, it might not have been admissible. I reject the suggestion that Dooley’s testimony may have been improper for this reason, and for the reason that, as an undercover police officer, Dooley was “interested” in the outcome of the case. Dooley testified because he himself was a party to the conversation; not only did he hear the words spoken, but he was a participant in the exchange and was in a unique position to comment upon it. D’Angelo’s defense hinged entirely upon his effort to use the transcript to discredit Dooley’s testimony, a defense that failed.

Here follows the relevant testimony of Officer Dooley: Q. What if anything happened after you met Mr. D’Angelo there?
A. Mr. D’Angelo came back to the table that I was sitting at, introduced himself and, of course, I introduced myself and I explained to him who I was and what I needed from [the Bureau of Licenses and Inspections]. I said we were going to be—when I say “we”, my company—was going to invest quite a bit of money in the Center City area, preferably around the convention center, and I needed the cooperation of [the Bureau]. I didn’t want any problems, I was here to smooth over any possible problems that would arise from [the Bureau] during the purchasing and construction of the buildings. Q. What if anything did Mr. D’Angelo tell you?
A. ... And he said at that time, “Anything I could do for you, you know, I’ll do, anything that I can”—
Mr. D’Angelo said anything he could do, he would do for me. I said to him, I told him, “I shouldn’t be telling you this, but I had developed contacts in the Redevelopment Authority,” and he said good. I said this contact had given me selected locations in the Center City area and I was wondering if he might, if I gave him these locations, would he be able to check them out for me to see if there were any violations, and if there were violations in existence, could he have them removed, the sites themselves, [sic] would they be good investment sites, and so forth.
Q. Did Mr. D’Angelo tell you if he would check out these addresses for you?
A. Yes, he did. He said he would help me with ordinances, with zoning information and things of that nature.
Q. Was there any conversation that you had with Mr. D’Angelo, Detective Dooley, concerning use of other people in Mr. D’Angelo’s department?
A. Yes. He said if I supplied him with information, with addresses, he would be able to use his department personnel, building inspectors, to go down to those addresses and examine the properties. Of course these men would not know, Mr. D’Angelo said, what they were looking at; he would just tell them to go down and inspect the building and they’d come back with a report, and that report would be relayed to me.
Q. Did you at any time during the conversation give any money to Mr. D’Angelo, Detective Dooley?
A. Yes. Towards the end of the luncheon I explained to Mr. D’Angelo that I appreciated his assistance and promise of assistance in helping me, and I handed him a business card with three one hundred dollar bills, which he accepted and put in his pocket and said, “It’s a pleasure.” (emphasis added).

N.T., 7/14/87 at 21-25. With this testimony, the elements of a violation of § 4701 are before the factfinder: 1) that the individual is a public servant, that he solicited or agreed to accept money or another benefit, and that he agreed to violate a known legal duty or other exercise of discretion. Commonwealth v. Goldbard, 276 Pa.Super. 193, 197, 419 A.2d 161, 163 (1980).

The trial court as the finder of fact could reasonably have found from this testimony that an agreement was formed. Dooley’s testimony establishes that D’Angelo’s proposed performance of illegal acts was discussed openly and unequivocally, after which Dooley expressed his appreciation for what D’Angelo said he would do. D’Angelo accepted the $300.00 stating “It’s a pleasure.” The promise to utilize city employees to inspect sites on city time for the sole purpose of rendering private advice without the knowledge of the employees involved is a violation of a known legal duty or an abuse of his discretion. D’Angelo accepted $300.00 in consideration for that promise. Thus, the requisites of the bribery statute are satisfied. That D’Angelo had yet to perform any discretionary acts on Dooley’s behalf is of no consequence. Once an offer or agreement is made, the crime of bribery is complete. Commonwealth v. Ohle, 291 Pa.Super. 110, 435 A.2d 592 (1981).

Finally, the majority places undue reliance upon the Official Comment to § 4701 as authority for reversing D’Angelo’s conviction. While Official Comments can be used in some instances to assist in the application of statutes, see 1 Pa.C.S. § 1939, I do not agree with the attempted application of the Comment in this case. The Comment recognizes and accepts the practice of tipping because it is so widespread. However, the practice is not condoned. Most important, I disagree with the majority that D’Angelo’s acceptance of the $300.00 was a tip. Tips normally are received subsequent to performing an act. Here D’Angelo had yet to perform any act necessary to warrant such an extravagant tip. This discrepancy is further magnified by the fact that D’Angelo was offered and accepted a $50.00 payment after spending two hours escorting Dooley around Philadelphia.

For these reasons, I would affirm the judgment of sentence of the trial court with respect to D’Angelo’s conviction for bribery in political matters for his acceptance of the $300.00 payment. I therefore dissent.

ROWLEY, WIEAND and BECK, JJ., join.

      . In view of our resolution of this question, we need not address the remaining issues presented in this appeal.

      . Transcriptions of the taped conversations were offered into evidence by the defense.

      . The dissent argues that the Commonwealth forbore to introduce the tapes or transcriptions of appellant’s conversations with Officer Dooley because they were inconclusive. Our review of the transcribed material convinces us, however, that the only way the Commonwealth’s burden could be sustained is by use of glosses on the actual conversations rather than the words themselves. Rather than inconclusive, the conversations were in fact adverse. The dissent itself notes that we must examine all the evidence of record. We are particularly compelled to do so where the conviction is based not on solid evidence, but upon a witness’ conjecture and speculation as to someone else’s motives.

      . The trial court’s Opinion offers us no guidance, as it merely recites the issues raised, and concludes without analysis that none contain substantive legal merit.

      . Appellant had originally suggested the Mall Tavern, described as a neighborhood bar, as a meeting place. However, because the Tavern is frequented by police officers, Officer Dooley arranged an alternative rendezvous.

      . During trial, the Commonwealth submitted into evidence the Philadelphia Code § 20-604(1), which reads as follows:
      No member of Council or other City officer or employee, shall solicit, accept or receive any gift, loan, gratuity, favor or service of substantial economic value that might reasonably be expected to influence one in his position in the discharge of his official duties, from any person, firm, corporation or other business or professional organization.
      The Commonwealth also provided the trial court with Section 10-105 of the Philadelphia Home Rule Charter.
      No officer or employee of the City and no officer or employee whose salary or other compensation is paid out of the City Treasury shall solicit or accept any compensation or gratuity in the form of money or otherwise for an act or omission in the course of his public work.
      These provisions are alluded to the Commonwealth’s brief; however, its argument, presented at trial, is not before us. That argument posits as the legal duty violated by appellant’s acceptance of the money from Officer Dooley the policy embodied in the Code and Charter sections. Since the policy is to disallow acts such as appellant’s, the argument becomes circular: he violated his legal duty not to accept money by doing so. This has no appreciable effect on the determination of whether a violation of 18 Pa.C.S.A. § 4701 has occurred.

      . It is worthy of note that none of the properties on the tour, which took place in an area known as Northern Liberties, were in appellant’s administrative district.

      . The text of the remarks quoted above provides a gloss on the actual Comment to § 4701, which reads as follows:
      This section extends bribery to cover all public employees. Under this section the crime is limited to bribery in connection with decision-making; consequently, it does not apply to situations where the law contemplates payment of fees to the public servant for his services or to tips given to a public servant. While the practice of tipping is not condoned, it is recognized that such practice is widespread.


author: CAVANAUGH, Judge.

text:
    585 A.2d 533
    COMMONWEALTH of Pennsylvania, Appellee, v. William D. JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 12, 1990.
    Filed Feb. 6, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Thaddeus A. Dutkowski, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CAVANAUGH, POPOVICH and BROSKY, JJ.
   CAVANAUGH, Judge.

Before us is an appeal from the judgement of sentence entered May 18, 1990. The sole issue on appeal is whether, for the purpose of the sentencing guidelines, a house is occupied when the owner or tenant is sitting on the back porch. We hold that when the rightful possessor is seated on the back porch of her home at the time it is burglarized, that person is within the structure for the purposes of calculating the gravity of the offense under the sentencing guidelines. We affirm the sentence.

On January 31, 1990 appellant, William Jackson, entered a plea of nolo contendere to the charges of Burglary, Theft By Unlawful Taking and Receiving Stolen Property. It was established during the plea colloquy that approximately noon on June 27, 1989, while driving his personal vehicle, a local police officer passed the residence of the victim. The officer, who knew the victim, observed her on the back porch. He also observed appellant enter the front door of the residence. The police officer turned his car around and continued to watch the house. After witnessing appellant come out the front door the officer called out for him to stop. When appellant fled, the officer gave chase. Appellant was apprehended by two citizens shortly thereafter. For the duration of these events, the victim was seated on a porch connected to the rear of the dwelling and was unaware of the crime until the police returned to the scene.

When applying the Pennsylvania sentencing guidelines the trial court used a value of seven (7) for the Offense Gravity Score. A value seven (7) Burglary is defined in the guidelines as:

Burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present.

A Burglary carrying a Gravity Value Score of six (6) is defined as:

Burglary of a structure adapted for overnight accommodation in which at the time of the offense no person is present.

The trial court concluded that a person on an attached back porch is within the structure of the dwelling for purposes of the guidelines. We agree.

Initially we conclude that appellant has raised a substantial question in his challenge to the discretionary aspects of sentencing. Where the appellant avers that the sentencing court failed to properly apply the sentencing guidelines a substantial question as to the appropriateness of the sentence has been raised. Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985). By asserting that the trial court applied the wrong Gravity Value Score in applying the sentencing guidelines, appellant has raised a substantial question that the sentence is not appropriate under the guidelines.

We turn now to the substance of appellant’s challenge. We find the lower courts reasoning to be quite sound. In Commonwealth v. Dickison, 334 Pa.Super. 549, 483 A.2d 874 (1984), we stated:

The different gravity scores for burglaries committed of structures where persons are present and structures where persons are not present is premised upon the likelihood of greater mischief in the former situation. If a burglary is committed while the structure is occupied, the potential for additional and more serious offenses is always present. Even if no further crime is committed, the presence of the victims and the potential for harm to them suggest an offense possessing gravity greater than when no person is present.

In Dickison, we held that each unit of a motel complex was a separate structure for the purpose of applying the sentencing guidelines and the presence of persons in other units or the presence of the desk clerk in the office was not the type of presence contemplated by the sentencing commission in assigning the higher gravity score. We find that this case is factually different and therefor not controlled by Dickison.

Appellant also directs our attention to Commonwealth v. Cannon, 297 Pa.Super. 106, 443 A.2d 322 (1982), where we held that a fenced in back yard was not a “building or occupied structure” as defined in the criminal trespass statute. There the defendant broke the lock on a gate and entered the back yard of the victim’s house. In Cannon, the defendant had been charged with criminal trespass of a building or occupied structure. We stated that the statute describing defiant trespasser, a less serious offense, was more specific and more closely described the defendants conduct. We relied on this as “further evidence” that the legislature did not intend the defendant’s conduct to be punished under the more serious offense. The present case is distinguishable in that the victim was on the porch and not in the yard. The porch is attached to the dwelling and forms part of the contiguous structure. Furthermore, in Cannon the question was one of the perpetrator’s location, not the presence of the victim for gradation purposes and the legislature had seen fit to define a separate offense for entering an area enclosed by a fence. We find that Cannon is inapplicable here.

In this case the likelihood of greater mischief was present. While the victim was sitting on the back porch of her home appellant entered the front. We would not hear appellant complain if the victim was in an upstairs bedroom while the burglary took place even if the victim did not encounter him. While in this case she was unaware of appellant in her home, the likelihood that she would hear a noise and investigate was quite substantial. Likewise, the possibility that appellant would be startled by a noise at the front of the house and exit the back was present. The possibility of the latter happening poses an even greater threat here than in the situation where the victim was on an upper floor of the dwelling. We hold that, for the purpose of determining the gravity value score for a burglary sentence, a back porch attached to a residential dwelling is part of the “structure” and the lower court correctly used a gravity score of seven (7) when applying the sentencing guidelines.

Judgment of sentence affirmed.

      . Although there is no other evidence in the record, the Commonwealth argued at sentencing that this was an appurtenant back porch with the only means of ingress or egress being via the dwelling.


author: HESTER, Judge: BECK, Judge,

text:
    585 A.2d 1004
    Price L. ROGERS and Elaine Rogers, v. JOHNSON & JOHNSON PRODUCTS, INCORPORATED and Lankenau Hospital and Thomas Jefferson University Hospital. Appeal of JOHNSON & JOHNSON PRODUCTS, INC.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1987.
    Filed Dec. 4, 1990.
    Reargument Denied Feb. 15, 1991.

      Alan K. Cotier, Philadelphia, for appellants.
    Jim Beasley, Philadelphia, for Rogers, appellees.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.
   HESTER, Judge:

Johnson & Johnson Products, Inc., appeals from the April 2, 1986 judgment entered by the Court of Common Pleas of Philadelphia County following a jury trial. The jury awarded appellees, Elaine and Price Rogers, damages in the amount of $225,000, to which the court added Pa.R.C.P. 238 delay damages. Appellees instituted this suit to recover for injuries sustained by Price Rogers when a plaster of paris splint manufactured by appellant allegedly malfunctioned and caused a severe burn. We previously filed an opinion reversing this judgment, Rogers v. Johnson & Johnson Products, Inc., 368 Pa.Super. 109, 533 A.2d 739 (1987), holding that a product malfunction theory and a negligence theory were mutually exclusive and that both theories could not be argued to the jury. The supreme court reversed our decision in Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 565 A.2d 751 (1989). Accordingly, we now address the issues remaining in this appeal following remand by our supreme court. We affirm in part, reverse in part, and remand.

Our careful review of the record reveals the following. On Sunday, May 1, 1977, appellee Price Rogers twisted and fractured his leg. His wife, Elaine Rogers, telephoned Dr. John Dowling, M.D., the chief orthopedic surgeon at Lankenau Hospital in the Germantown section of suburban Philadelphia. Dr. Dowling referred them to the Lankenau Hospital emergency room where a third-year resident, Dr. Lawrence Naame, was on duty. Dr. Naame concluded the fracture was severe, and consulted with Dr. Dowling by telephone. Dr. Dowling arrived shortly thereafter and recommended temporarily setting the fractured leg with a splint until he could perform an open reduction the following morning. The fracture was near an artery, requiring the doctors to avoid any risk of puncture. Dr. Dowling administered a pain killing drug and directed Dr. Naame to prepare a plaster of paris cast for the splint. Dr. Naame prepared the cast out of sight in a room adjoining the emergency room that had a sink, and then he and Dr. Dowling placed the splint on the leg. Dr. Naame then left the emergency room while Dr. Dowling held the splint to allow the plaster of paris to cool and set. Dr. Dowling then allowed the splint to rest on the bed while he proceeded to the hospital administration office to admit Mr. Rogers for surgery the following day.

Before Dr. Dowling left the emergency room, Mr. Rogers complained to him about heat from the splint. Dr. Dowling responded that this was normal. Later, after Dr. Dowling left, appellee Price Rogers complained to his wife that the splint was burning him and causing great pain. She left to locate Dr. Dowling and accompanied him back to the emergency room. Dr. Dowling did not remove the splint since he did not consider the situation abnormal and because removing the splint might endanger the leg artery. The following day during the operation, Dr. Dowling discovered second and third degree burns on Price Rogers’ leg. Although able to undergo the open reduction surgery, Mr. Rogers experienced a longer, more painful recuperative period, requiring a skin graft, therapy, and home nursing for several months.

Appellees filed suit against Johnson and Johnson alleging that its fast-setting plaster of paris (“the product”) malfunctioned thereby causing the burns, or alternatively, that appellant was negligent in not testing the product sufficiently, not monitoring complaints, and failing to give adequate warning that the product could cause severe burns. Appellees also filed suit against Lankenau Hospital and Thomas Jefferson University Hospital, with whom Dr. Naame was in a residency program and on rotation to Lankenau Hospital, alleging that either or both hospitals were negligent in supervising the physicians’ performance. Appellees did not file suit against Dr. Naame or Dr. Dowling. Instead, they attempted to establish that the physicians were not negligent in order to eliminate secondary causes as part of their malfunction theory in their case-in-chief against appellant. Appellant thus was compelled to contest appellees’ evidence eliminating the existence of secondary causes for the burn in order to refute the malfunction theory when, at the same time, the co-defendant hospitals also denied physician negligence. Appellant attempted to join the physicians as third party defendants long after the complaint was filed, but joinder was denied on the basis that appellees would be prejudiced in preparing their case for trial by the additional delay, especially since extensive discovery had been completed.

At trial, Johnson and Johnson contended that it was impermissible to plead both a malfunction theory and a negligence theory in the alternative as a factual matter in the same case. The trial court determined that a party is not required to negate secondary causes prior to arguing a malfunction theory to the jury. Instead, the court concluded it is necessary only to produce evidence which if believed by the jury would negate secondary causes.

At trial, appellant asserted that physician negligence was the cause of the burns. Appellant contended that many external factors, such as the temperature of the water and the thickness of the material used, readily could cause excessive exothermic (heat) build-up in plaster of paris and that all those factors were under the exclusive control of the physicians. The jury rejected all allegations of physician negligence and awarded damages against Johnson and Johnson. Judgment was entered and Johnson & Johnson appealed. On appeal we reversed and held that secondary causes must be excluded as a legal cause prior to the jury considering a malfunction theory. Rogers v. Johnson & Johnson, 368 Pa.Super. 109, 533 A.2d 739 (1987). As noted, supra, the supreme court reversed our holding on this issue and remanded for consideration of the remaining issues in the appeal. Rogers v. Johnson & Johnson, 523 Pa. 176, 565 A.2d 751 (1989).

Appellant now asserts that other instances of trial court error entitle it to a new trial. First, it argues that the trial court erred in admitting into evidence reports of other burn incidents involving a similar, but different, Johnson & Johnson product. Second, appellant argues that appellees improperly were permitted to cross-examine its medical expert regarding competitors’ products because this was outside the scope of his direct testimony when, at the same time, the trial court precluded appellant from offering related evidence from its own expert in rebuttal. Third, appellant asserts that the trial court’s charge was erroneous, contradictory, and confusing. Finally, appellant contends the trial court erred in awarding and calculating Pa.R.C.P. 238 delay damages.

Appellant first argues that the court erred in admitting the report which concerned a dissimilar product that caused injuries which never were established to have occurred under the same or similar circumstances to those circumstances surrounding appellee’s injury. In support, it cites Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988) (en banc). Appellant further contends that appellee repeatedly referred to the report to support an inference regarding the ultimate issue in this case to the effect that the fast-setting plaster of paris malfunctioned thereby causing appellee’s second and third degree burns. Appellant argues that it was prejudiced by the admission of the report and the repeated references to it by appellee for other purposes. Thus, appellant concludes that the relevancy of this report was doubtful, and its prejudicial effect far outweighed its usefulness. See Whitman v. Riddell, 324 Pa.Super. 177, 471 A.2d 521 (1984) (admission of evidence is reversible where admission is erroneous and harmful or prejudicial).

It has long been clear that questions regarding the admissibility or exclusion of evidence are within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. An abuse of discretion requires prejudice, partiality, bias, ill-will, or misapplication of law. Meyers v. Nicholas Homeshield, 384 Pa.Super. 1, 557 A.2d 743 (1989); Kepple v. Fairman Drilling Co., 380 Pa.Super. 52, 551 A.2d 226 (1988). Instantly, ample support exists in the record for the trial court’s decision to admit this report for the limited purpose of demonstrating notice. The report which concerned the Johnson & Johnson extra fast-setting plaster of paris that caused the burns in Texas (“the Texas report”), and the Johnson & Johnson fast-setting plaster of paris which allegedly caused injury to appellee, established that both products were packaged and/or shipped on the same day from the same factory.

While testimony revealed that the products were not from the same production batch and the circumstances surrounding the Texas injuries may not have been identical to those concerning appellee, we find that the trial court reasonably could conclude that the similarities outweighed the differences for the purpose of establishing whether Johnson & Johnson had notice of malfunctions. The production batches were made sequentially and included many of the same raw materials. Further, we note that the trial court excluded numerous other reports of burns that did not involve cold water or share the same package/shipping number. In our view, the trial court’s decision is strictly a matter of judgment. Accordingly, we do not find an abuse of discretion or reversible error by the trial court in admitting the report.

Appellant next contends that appellees and the hospital co-defendants, whose interests were opposed to appellant’s interests, used the Texas report not only for establishing notice but as substantive evidence in their closing arguments. Initially, we note that the trial court gave the standard jury instruction that arguments by attorneys do not constitute evidence. Furthermore, appellant failed to object during or after the final arguments at trial; consequently, this argument is waived.

Next, appellant argues that the trial court not only permitted appellees to exceed the scope of appellant’s direct examination of its expert but also denied appellant the opportunity to offer corresponding evidence in rebuttal from its expert. Appellant argues that as a result, the jury learned only that a competitor’s product, “OCL,” existed and had a greater thickness than the splint applied to appellee, without learning that “OCL” also had an insulating layer as a safety feature to prevent exothermic heat build-up that Johnson & Johnson’s product did not possess. Appellant now claims that the combined result of these rulings prejudiced it. In support, appellant relies on cases in which cross-examination exceeded direct examination, yet rebuttal testimony was not allowed. Woodland v. Philadelphia Transportation Co., 428 Pa. 379, 238 A.2d 593 (1968); Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989); Mapp v. Dube, 330 Pa.Super. 284, 479 A.2d 553 (1984).

The record reveals that appellees impeached Dr. Ronald Greene concerning the accuracy of his knowledge regarding the thickness of three or four competing products, including “OCL,” after he admitted that he was familiar with similar competing products and named several of them. The trial court permitted this inquiry over appellant’s immediate objection that this was not relevant and exceeded direct examination, in order to test Dr. Greene’s credibility. Appellant later sought to have its product manager, John Hull, testify regarding the thickness of “OCL” in order to explore its corresponding safety feature. The trial court sustained appellees’ objection to the relevancy of Mr. Hull’s initial testimony on the thickness of “OCL” because the thickness of the product used on appellee was not at issue. Rather than explore that it did not manufacture a product with similar thickness as “OCL” for safety reasons, which the court suggested would be permitted, Johnson & Johnson concluded its direct examination of Mr. Hull after appellees’ objection on relevancy was sustained.

Appellant never argued to the trial court that it was prejudiced by its rulings. Thus, that claim is waived and we will not address it. Dilliplaine v. Lehigh Valley Trust. Co., 457 Pa. 255, 322 A.2d 114 (1974) (concept of “fundamental” trial error abandoned in favor of preservation of error through specific and timely objection.) Furthermore, admission or exclusion of rebuttal testimony is within the sound discretion of the trial court. Mapp v. Dube, supra.

Appellant next argues that the trial court’s charge to the jury was inconsistent, erroneous, and confusing. Specifically, appellant asserts that the court stated to the jury that in asserting their defense, Johnson & Johnson had the burden of proving their claim that physician negligence was the cause of appellee’s injury. Appellant correctly argues that the burden of eliminating secondary causes in establishing a malfunction without a specific defect is a burden of the injured party and not of the defendant. We note, however, that appellant did not specifically object on this basis to the court’s charge. Accordingly, this claim is waived. Pa.R.A.P. 302. Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Dilliplaine v. Lehigh Valley Trust Co., supra.

Appellant next contends that the award of Rule 238 delay damages with respect to Mrs. Rogers’ claim based solely on loss of consortium is improper. Appellant asserts that since she did not suffer direct “bodily injury, death or property damage” as required by the rule, and her claim purely is derivative of Price Rogers’ injuries, her claim is inappropriate for an award of delay damages.

This argument recently was rejected on the basis that loss of consortium is a separate and distinct claim to which Rule 238 delay damages attach. See Novelli v. Johns Manville, 395 Pa.Super. 144, 151-152, 576 A.2d 1085, 1089 (1990), where we stated:

In light of the derivative nature of the action for loss of consortium, we are satisfied that loss of consortium is part of the total compensable damages arising from the decedent’s bodily injuries, and we hold that loss of consortium is part of “what was owed” under Craig [v. Magee Memorial Rehab. Ctr., 512 Pa. 60, 515 A.2d 1350 (1986) ].
We find further support for this conclusion by noting that not to allow delay damages for loss of consortium awards would undermine the purpose of Rule 238. As noted above, Rule 238 is designed to encourage responsible approaches to these cases and prevent unreasonable refusals to pay what is owed for tortious injury. Here, Celotex’s refusal to settle delayed compensation to Novelli for both the decedent’s claim and her loss of consortium. We see no reason to let Celotex benefit from this delay.
In summary, we hold that, because loss of consortium is part of the total compensable damages related to the decedent’s injuries, Rule 238 delay damages may be assessed on awards for loss of consortium. Accord Hughes v. GAF Corp., 364 Pa.Super. 311 [528 A.2d 173] (1987) (delay damage award based on molded verdict which included award for loss of consortium).

Finally, appellant argues that since it consistently disputed the amount of delay damages (although not their imposition), the issue of delay damages is still pending. Accordingly, appellant contends that delay damages have yet to be determined fully. Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en banc); accord Staats v. Noll, 381 Pa.Super. 162, 553 A.2d 85 (1989) (en banc); Mathis v. United Engineers & Contractors, Inc., 381 Pa.Super. 466, 554 A.2d 96 (1989). “Because the issue of delay damages was pending before the trial court on the date revised Rule 238 was promulgated, it is clear that any such award in the instant case was properly determinable only under the revised rule.” Jistarri v. Fentress, 390 Pa.Super. 209, 212-13, 568 A.2d 618, 620 (1989) (citations omitted). We agree. A hearing clearly is mandated by the revised rule.

Judgment affirmed in part and reversed in part; case remanded for a determination and calculation of delay damages. Jurisdiction relinquished.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting.

I dissent. I would reverse the judgment and remand the case for a new trial on the ground that the trial court erred in admitting evidence of other burn incidents allegedly caused by Johnson & Johnson plaster of Paris products.

The specific factual background pertinent to this issue is as follows. At the close of appellees’ case, counsel for appellees sought to admit evidence consisting of a written report prepared by a Johnson & Johnson salesman. The report, which is referred to throughout the record as the “Texas report,” consisted of information written by the salesman on a Johnson & Johnson complaint form. The information on the form was provided to the salesman by a nurse at a hospital in Texas. The nurse apparently told the salesman that on three occasions, Johnson & Johnson plaster of Paris splints had caused burns to patients of the hospital. The nurse also apparently stated that in two of the cases, the plaster of Paris had been dipped in cold water before applying it. The report contained no other information as to the circumstances of the burn incidents reported. The thickness of the splints applied to the patients, the limb to which they were applied or the manner of air circulation around the splints during the drying process were not stated. Other evidence produced at trial indicated that all of these factors might be relevant to the degree to which the plaster of Paris would heat up during the process of drying into a hardened form.

However, the report did contain certain other relevant information. The report indicated that the plaster of Paris used in Texas was extra-fast setting plaster of Paris. The product that was used in the splint applied to Mr. Rogers was simply fast setting plaster of Paris. The report also indicated that the plaster of Paris used in Texas bore the Johnson & Johnson code number 3296N219R. The relevance of this number is that the plaster of Paris code number on the material that burned Mr. Rogers was 3296N355. The first 4 digits and the letter N are the same. The first four digits mean that the products were packaged and or shipped by Johnson & Johnson on March 29, 1976. The “N” indicates that they were shipped from Johnson & Johnson’s New Brunswick plant. The last digits are the batch number of the product. Plaster of Paris is apparently manufactured by mixing various chemicals in large batches and then applying the wet plaster of Paris material to thin bandage material which is rolled up, packaged and shipped. Thus, the batch number indicates the chemical mixture from which this product was ultimately manufactured.

When counsel for appellees sought to admit this report, counsel for appellant strongly objected. He argued that it had not been demonstrated that the product involved in or the circumstances surrounding the Texas incidents were sufficiently similar to the instant case. Therefore, the probative value of the Texas report was far less than its potential for confusing and prejudicing the jury. The trial court nevertheless admitted the report, with the following instructions to the jury:

The sole purpose of reading that complaint [the Texas report] to you is for you to use as to whether or not Johnson & Johnson had knowledge that certain reactions did result from a shipment of Johnson & Johnson products made on the same day as the shipment in this case, if the code that will be read to you means what it’s supposed to mean, what it has been testified it means. Now, if that is not accurate, you will hear more testimony on it. But the sole purpose is for you to determine from it whether or not Johnson & Johnson had been notified, was on notice that this particular shipment had caused problems somewhere else. And it goes to the issue whether or not the methods used by Johnson & Johnson to keep track of any possible complaint that may arise was a method which is a carefully drawn one and not a negligently drawn one.
When I say this is the purpose you can use it for, it means for no other purpose, which means you cannot use this incident somewhere else about this other incident from this shipment on the same date, which doesn’t necessarily mean the same package, or same batch, or same group of material was shipped the same day. If the testimony was heard, it means what we heard. That is not evidence you can use to determine there was any defect in the product here in this particular case.

Despite this instruction, however, the report was ultimately used by counsel for appellees as evidence of a defect. An enlargement of the report with the code numbers highlighted was circulated to the jury and counsel for appellees repeatedly referred to it in closing arguments. These references were not confined to statements concerning the relevance of the report to the notice issue. Rather counsel argued that the report was proof of the inconsistent nature of plaster of Paris concerning its tendency to heat up, which was the central allegation of defect in this case. The argument also stressed the similarity of the code dates on the two products. The same arguments are repeated in appellees’ brief to this court.

Under these circumstances, it is apparent that all of the requirements for the grant of a new trial because of an improper evidentiary ruling are present. The admission of the evidence was erroneous and its admission was harmful to the appellant. See Whitman v. Riddell, 324 Pa.Super. 177, 471 A.2d 521 (1984).

Evidence like that involved herein is commonly referred to as evidence of similar accidents or occurrences. As the en banc panel in Madjic v. Cincinnati Machine Company, 370 Pa.Super. 611, 537 A.2d 334, 341, allocatur denied, 520 Pa. 594, 552 A.2d 249 (1988), recently reiterated, the admissibility of such evidence is limited. Such evidence may often confuse the jury and the true issues before it by turning the jury’s attention to collateral matters, i.e., the allegedly similar accidents and the circumstances under which they occurred.

When such evidence is proffered, the burden is on the proponent thereof to demonstrate that the evidence is “... comprised of similar accidents occurring at substantially the same place and under the same or similar circumstances.” Id., 370 Pa.Superior Ct. at 625, 537 A.2d at 341. Moreover, even where such evidence is admitted with a limiting instruction as to its use, the admission may nevertheless be regarded as reversible error. See Whitman v. Riddell, supra.

As appellant persuasively argues, the limits on the admissibility of evidence of similar accidents are equally applicable in a malfunction theory case such as that at bar. Uitts v. General Motors Corp., 411 F.Supp. 1380 (E.D.Pa.1974), aff'd mem., 513 F.2d 626 (3d Cir.1975). In Uitts, plaintiffs proceeded under the malfunction theory to establish a defect in a car manufactured by defendant. They attempted to introduce evidence of records of complaints to defendant concerning other accidents involving identical or substantially similar vehicles. The court noted the general rule that such evidence is not easily admitted because of its potential for prejudice and confusion of the jury. The court excluded the evidence of prior complaints, stating:

If plaintiffs were attempting to prove the existence of a specific defect or malfunction it is clear that the admission into evidence of the occurrence of similar accidents would require a showing that those accidents were caused by the same malfunction or defect. Simply because plaintiffs are proceeding under the MacDougall [malfunction] theory we do not believe they can introduce evidence of accidents which may involve a variety of causes, and then let the jury guess which of those causes was responsible for the accident in the present case.

Id. at 1383.

Clearly, appellees did not demonstrate a sufficient similarity between the incidents reported in the Texas report and the incident at issue in this case to warrant admission of the Texas report. First, the Texas report did not involve the application of the same type of plaster of Paris as was applied to Mr. Rogers. Second, the report did not reveal all of the circumstances of the reported incidents which might be pertinent to whether the plaster of Paris used in Texas had actually malfunctioned or, in fact, had simply overheated because of improper use or other secondary causes. Lastly, the potential for prejudice and confusion of the jury posed by this report was indeed large.

Although the report was admitted with a limiting instruction, it was not presented to the jury in that light. Indeed, the report was not even necessary or probative as to the issues for which it was admitted, i.e., notice or ability to recall or trace. Johnson & Johnson had already admitted that it was aware of prior complaints of burning incidents resulting from plaster of Paris. Thus, there was no need for such potentially prejudicial evidence to be admitted concerning notice.

Moreover, the report was not relevant to the issue of whether Johnson & Johnson had notice of a problem with the product involved here or should have recalled or traced it. The Texas report involved extra fast setting plaster of Paris, a different product than that involved herein. Thus, if it put Johnson & Johnson on notice of anything, or if it imposed on Johnson & Johnson any post-sale duties, such related to a different product. Finally, it is difficult to see how the mere existence of a prior complaint goes to prove anything concerning whether Johnson & Johnson could have traced and/or recalled a defective product.

Furthermore, even with the limiting instruction and assuming that the report was probative and non-cumulative as to notice or post-sale duties, the clear possibility that the jury’s attention would be diverted by the report outweighs the value of the report. The jury might well have focused on the Texas report and the similarity between the code numbers it bore and the numbers on the product used on Mr. Rogers. The jury could easily have regarded this report as evidence of otherwise inexplicable “malfunctions” of Johnson & Johnson plaster of Paris, which would reinforce appellees’ theory that Mr. Rogers’ burns were also caused by such a malfunction and, therefore, by a presumably defective product. The jury should not have been presented with this option as the Texas report was not probative of anything regarding malfunctions of fast setting plaster of Paris under the circumstances involved in this case. Avoidance of this potential misuse of evidence of similar accidents and this type of diversion of the jury’s attention is precisely the rationale that underlies the limits on the admission of such evidence. These risks were clearly present in this case and clearly outweighed the probative value of the Texas report, which was never established.

Since I find this error controlling, I would not address the remaining issues raised on appeal. I would find that the judgment against Johnson & Johnson should be reversed and the case remanded for a new trial.

      . The majority states that appellant never objected to the use of the Texas report by counsel for appellees in his closing arguments and that this objection is, therefore, waived. I strongly disagree. Appellant preserved its objection to the admission of this evidence throughout the trial, arguing its objection at every opportunity and reiterating it in post-trial motions. To suggest that it was waived because not raised again in response to closing arguments is untenable. Appellant had already objected to the evidence and the trial court was clearly informed of appellant’s position on the issue. In any event, appellant makes a point of the use of the Texas report in appellees’ counsel’s closing argument only to indicate how prejudicial the admission of the report actually was in the context of this trial. The error alleged was the admission of the evidence by the trial court, not the use of it by appellees’ counsel, and appellant’s objection to this error was fully preserved.