author: SPAETH, Judge:

text:
    464 A.2d 333
    In re Andre LOWRY and Jeffrey Lowry, minors. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Linda DIAZ, also known as Johanna Berceli, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Ronald ZIEGLER. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Kathleen BERGER, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Tracey MITCHELL, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Leonard BROOKS, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Snowley BROOKS, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Julie BRISON, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Heather BROOKS, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Sarah AYERS, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Lisa Ann ANGELO, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Carmen Ann JONES, a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY. In re Joseph EVANGELISTA (Brown), a minor. Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1983.
    Filed July 8, 1983.
    Reargument Denied Sept. 13, 1983.
    Petition for Allowance of Appeal Granted Feb. 8, 1984.

      James A. Esler, Assistant County Solicitor, Pittsburgh, for appellant.
    Mark P. Cancilla, Pittsburgh, for appellees.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   SPAETH, Judge:

This case arises on thirteen appeals which have been consolidated. The appeals involve the disposition of children adjudicated dependent under The Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S.A. § 6301 et seq. The lower court ordered the children placed in the custody of foster parents, and provided in its order that the placement should be “under the supervision of Children and Youth Services of Allegheny County,” and, further, that Children and Youth Services of Allegheny County Institution District were to pay the foster parents “the current board rate per diem for foster home care.” It has not been argued, either that the children should not have been adjudicated dependent, or that they should not have been ordered placed in foster homes. The issue is whether the lower court was authorized by The Juvenile Act to order a public agency, such as Children and Youth Services or the County Institution District, to pay for the placement. We hold that a court may not order a public agency to supervise and pay for the placement of a dependent child in a foster home unless the home has been approved pursuant to the regulations of the Pennsylvania Department of Public Welfare applicable to foster homes. Here the record fails to disclose that the foster homes have been so approved. We therefore remand for further proceedings.

In each of the thirteen appeals before us the disposition is essentially the same, and all of the appeals have essentially the same procedural history. Rather than recite the history of each appeal, the history of the appeal involving Kathleen Berger will be recited as illustrative.

On March 27, 1979, a case worker representing Children and Youth Services of Allegheny County filed a petition with the lower court, representing that Kathleen was about 15 years old and was a dependent child in that she was without proper parental care or control as necessary for her physical and mental health. On April 18, 1979, the lower court adjudicated Kathleen a dependent child. After two intervening placements, which are not pertinent to our present discussion, the lower court, on April 8, 1981, after a hearing, ordered Kathleen “placed in the custody” of one Charles R. Reis, “under the supervision of Children and Youth Services of Allegheny County.” After reciting that “[t]his placement [had] been recommended to the Court by Children and Youth Services of Allegheny County as being in the best interest” of Kathleen, the court’s order continued by directing that Children and Youth Services and the Allegheny County Institution District should “pay to Mr. Charles R. Reis the current board rate per diem for foster home care of [Kathleen], effective as of April 8, 1981, and so long as [Kathleen] remains in the custody and care of Mr. Charles R. Reis.”

In its opinion the lower court explains that it ordered Kathleen placed with Mr. Reis on the basis of testimony by a Children and Youth Services caseworker: “The caseworker assured the Court that the prospective placement was in Kathleen’s best interest, that no other placement was more appropriate, and significantly, that she had developed close attachments to the Reis family.” Slip op. at 2. The lower court goes on to say that “[it] declined, however, to await the completion of the home study before ordering [Children and Youth Services] to support the placement, instead directing the agency to pay the current foster care board rate effective April 8, 1981, the date of the placement.” Id. at 3.

The propriety of the lower court’s adjudication of Kathleen as a dependent child is not challenged. Neither is the court’s decision to order her placed in a foster home. As appellant, Children and Youth Services only argues that the lower court erred in directing it to make foster home' payments when it had not evaluated and approved the Reis home as being in compliance with Pennsylvania Department of Public Welfare Regulations.

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The Juvenile Act provides that if, after petition and hearing, a child is found to be a dependent child, the court may order any of certain specified dispositions, as “best suited to the protection and physical, mental, and moral welfare of the child.” 42 Pa.C.S.A. § 6351(a). The specified dispositions are as follows:

(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without this Commonwealth who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
(iii) A public agency authorized by law to receive and provide care for the child.
Id.

At first glance it might appear that here the lower court has made a disposition within subsection (i) of Section 6351(a)(2): the court’s order states that custody of Kathleen has been transfered to an individual, Charles R. Reis, and it is apparent from the order that this transfer is only temporary, and has been made on the recommendation of Children and Youth Services. Indeed, the lower court regarded its disposition as within subsection (i). Slip op. at 7. Closer examination will disclose, however, that this was error. For the lower court did not simply transfer temporary custody of Kathleen to Mr. Reis. Instead, the court directed that Mr. Reis’s temporary custody of Kathleen should be “under the supervision of Children and Youth Services.” The underlying responsibility for Kathleen’s welfare was thus imposed upon Children and Youth Services. If, for example, Mr. Reis were to mistreat Kathleen, it would be the responsibility of Children and Youth Services to inform the court of that fact and to recommend to the court whether physical custody of Kathleen should be transferred to someone else.

Accordingly, the lower court’s disposition of Kathleen may be characterized in one of two ways: as a disposition within both subsection (i) ("custody to ... [a]ny individual”) and subsection (iii) ("custody to ... [a] public agency”); or as a disposition only within subsection (iii). The latter characterization is perhaps preferable. When, as happened to Kathleen, a court on the petition of a public agency such as Children and Youth Services adjudicates a child dependent and orders the child taken from the custody of her parents and placed elsewhere, perhaps in a child shelter, perhaps in a foster home, “under the supervision” of the agency, the practical effect is to give the agency custody of the child. The shelter or foster home, to be sure, has physical custody; but since the agency has been ordered to supervise that custody, legal custody is with the agency. It is not important, however, which characterization is regarded as preferable. If an order directing a public agency to supervise a placement in a foster home doesn’t result in the disposition being only within subsection (iii), it at least results in it being within both subsection (i) and subsection (iii).

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Very few orders are of greater consequence than orders directing that children be taken from their parents and placed in foster homes. For the children’s lives lie before them. A foster home may provide the security and sense of direction that will enable the children to lead responsible, productive lives. But the home may also ensure that the children’s lives will be lives of misery. For instead of being cared for, the children may be exploited and abused. We shouldn’t suppose that Nicholas Nickleby couldn’t be written today. See New York Times, March 27, 1983, at 23 (detailing instances of foster child abuse leading to consent decree specifying foster children’s rights in G.L., et al. v. Zumwalt, et al., 564 F.Supp. 1030 (W.D.Mo.1983)). It is therefore to be expected that the Legislature would concern itself with the protection of children. We have already referred to The Juvenile Act, supra, 42 Pa.C.S.A. § 6301 et seq., and have cited its injunction that if a court finds a child to be a dependent child, it is to order such disposition of the child as is “best suited to the protection and physical, mental, and moral welfare of the child.” 42 Pa.C.S.A. § 6351(a). And see In the Interest of S.M.S., 284 Pa.Super. 9, 424 A.2d 1365 (1981); In the Interest of K.B., 276 Pa.Super. 380, 419 A.2d 508 (1980); In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980); Stapleton v. Dauphin County Child Services, 228 Pa.Super. 371, 324 A.2d 562 (1975). The Legislature has further provided by the Act of June 24, 1937, P.L. 2017, art. IV, § 405, as amended, 62 P.S. § 2305, that:

The local authorities of any institution district shall have the power, and for the purpose of protecting and promoting the welfare of children and youth, it shall be their duty to provide those child welfare services designed to keep children in their own home, prevent neglect, abuse and exploitation, help overcome problems that result in dependency, neglect or delinquency, to provide in foster family homes or child caring institutions adequate substitute care for any child in need of such care and, upon the request of the court, to provide such service and care for children and youth who have been adjudicated dependent, neglected or delinquent.
No child under the age of sixteen years shall, unless he is mentally or physically handicapped, and no other care is available for him, be admitted to, or maintained in, an institution conducted by the local authorities other than a hospital or sanitarium.

In addition, the Legislature has provided in The Public Welfare Code, Act of June 13, 1967, P.L. 31, No. 21, art. 1, § 101, et seq., 62 P.S. § 101, et seq., that the Department of Public Welfare “shall have supervision over ... [a]ll children’s institutions within this Commonwealth ....” 62 P.S. § 902(3). The Code defines “children’s institutions” as meaning

any incorporated or unincorporated organization, society, corporation or agency, public or private, which may receive or care for children, or place them in foster family homes, either at board, wages, or free; or any individual who, for hire, gain or reward, receives for care a child, unless he is related to such child by blood or marriage within the second degree; or any individual, not in the regular employ of the court or of an organization, society, association or agency, duly certified by the department, who in any manner becomes a party to the placing of children in foster homes, unless he is related to such children by blood or marriage within the second degree, or is the duly appointed guardian thereof.
62 P.S. § 901.

As a children’s institution, Children and Youth Services of Allegheny County is subject to the supervision of the Department of Public Welfare. As will appear, this fact has consequences critical to our decision of the appeals now before us.

The Legislature has charged that the Department of Public Welfare, in exercising its supervisory power over children’s institutions, “shall. assure the availability and equitable provision of adequate public child welfare services for all children who need them regardless of religion, race, settlement, residence or economic or social status.” 62 P.S. §701. Toward this end, the Legislature has provided that:

The department shall make and enforce all rules and regulations necessary and appropriate to the proper accomplishment of the child welfare duties and functions vested by law in the county institution districts or their successors. All rules and regulations which the department is authorized by this section to make with respect to the duties and functions of the county institution districts or their, successors shall be binding upon them.
62 P.S. § 703.

Pursuant to this grant of power, the Department of Public Welfare has promulgated regulations governing the administration of county children and youth services, including services designed to “provide court-ordered care or supervision to alleged or adjudicated dependent or delinquent children.” 55 Pa.Code § 3130.1. Regulation 3130.39 limits the services and facilities that may be used by county agencies:

(a) A service or facility used by the county agency to serve children must be licensed or approved by the appropriate State agency if that service or facility is subject to licensure or approval.
(b) All facilities used by the county agency for the residential care of children must meet basic State and local requirements for the health and safety of children.
(c) Children who are dependent and not also adjudicated delinquent may not be placed in a facility operated for the benefit, of delinquent children.
55 Pa.Code § 3130.39.

Regulations 3700.1-3700.73 provide for a comprehensive evaluation process for determining the suitability of foster homes. The regulations include requirements concerning health, § 3700.51, safety, § 3700.67, and necessary facilities, § 3700.66. The authority to inspect and approve foster homes is delegated to an approved foster family care agency, 55 Pa.Code § 3700.61, which is defined as “[a] public or private agency which recruits, approves, and supervises foster family homes and places children in foster family homes,” 55 Pa.Code § 3700.4. The purpose of these regulations is “to reduce risk to children in placement; to protect their health, safety, and human rights ... and to establish minimum requirements to be applied by foster family care agencies when approving and supervising foster family homes.” 55 Pa.Code § 3700.2. Regulation 3700.68 prohibits an agency from placing children in a foster home that has not been approved:

(b) Foster parent applicants whose homes have not been approved on October 1, 1982, must meet the requirements of §§ 3700.62-3700.67 (relating to requirements for FFCA [foster family care agency] approval of foster family homes) before any children may be placed in their homes.
(c) Foster family homes already approved by an FFCA on October 1, 1982, must be inspected and comply with the requirements of §§ 3700.62-3700.67 (relating to requirements for FFCA approval of foster family homes) at the time of their next annual reevaluation.
55 Pa.Code § 3700.68(b), (c).

See also. 55 Pa.Code § 330.39.

If an agency fails to comply with “the regulations pre- . scribing minimum child welfare services or minimum standards of performance,” the Department of Public Welfare may, after hearing, “take[] charge of, and direct[] the operation of the child welfare services of a county institution district,” in which event “the county shall be charged and shall pay for such services.” 62 P.S. § 708 (Supp.1982-83).

It is therefore clear that Children and Youth Services would have had no authority on its own initiative to place a dependent child, such as Kathleen, in a foster home unless that home had been inspected by a foster family care agency and had been approved by the agency as in compliance with the regulations determining the suitability of a foster home. From this it follows that the lower court had no authority to order Children and Youth Services to supervise the placement of a dependent child in a foster home that had not been inspected and approved by a foster family care agency, and to order that Children and Youth Services and the County Institution District should pay for the placement. In other words, the court was not entitled to direct Children and Youth Services to disobey the Department of Public Welfare regulations, and to subject itself to being taken over by the Department. The court was entitled to order Children and Youth Services to supervise the placement of Kathleen with Mr. Reis, and to order Children and Youth Services and the County Institution District to pay for the placement, if such an order was in Kathleen’s best interest, but only upon proof that Mr. Reis’s home had been inspected and approved by a foster family care agency-

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The lower court was aware of “Department of Public Welfare regulations prohibiting] [Children and Youth Services’] participation in the subsidy of this [i.e.,! Mr. Reis’s] foster family before a home' evaluation has been completed.” Slip op. at 5. Also, the court acknowledged “[t]he clear inference ... that this Court is bound by these strictures, and, therefore, has abused its discretion in fashioning the order from which the agency seeks relief.” Id. However, the court expressed the opinion that there was no authority for the proposition that it was bound by the Department’s regulations. Id. The court stated that it had questioned Mr. Reis, the Children and Youth Services caseworker, and Kathleen, and that “[o]n the basis of the evidence adduced, the Court is convinced that this placement is in Kathleen’s best interest.” Slip op. at 6.

The difficulty with this reasoning is that, contrary to the lower court’s opinion, the court was, and is, bound by the Department of Public Welfare regulations; the court was no more entitled to disobey those regulations than was Children and Youth Services. For regulations promulgated pursuant to a grant of legislative power by the Legislature have the force of law. Uniontown Area School District v. Pa. Human Relations Commission, 455 Pa. 52, 76-7, 313 A.2d 156, 169 (1973) (collecting cases). Here, the regulations governing placement in and supervision of foster homes by county agencies were promulgated pursuant to the legislative power granted by the Legislature to the Department of Public Welfare to “regulate the care of children entrusted to foster family care____” Child Care Services v. Commonwealth Department of Public Welfare, 35 Pa.Commw. 81, 86, 385 A.2d 593, 595 (1978). See also, Lee v. Child Care Service Delaware County Institu tion District, 461 Pa. 641, 337 A.2d 586 app. dismd. 423 U.S. 919, 96 S.Ct. 258, 46 L.Ed.2d 245 (1975). The regulations, therefore, had the force of law, and bound both Children and Youth Services and the lower court.

The lower court could not avoid the Department of Public Welfare regulations by concluding that on the evidence before it, Kathleen’s placement with Mr. Reis was in her best interest. A placement in violation of law cannot be in a child’s best interest. To be sure, the fact that a foster home is in compliance with the Department’s regulations is not by itself any guarantee that placement in the home will be in the child’s best interest. It may well be that even though the home is in compliance with regulations, some disposition other than placement in the home will better serve the child’s best interest. In other words, compliance with regulations is not a sufficient condition that a placement of a dependent child in a foster home under the supervision of a children’s institution—such as Children and Youth Services—is in the child’s best interests; but it is a necessary condition.

We are sympathetic with the lower court’s decision “[not] to await the completion of the home study before ordering [Children and Youth Services] to support the placement____” Slip op. at 3. For we recognize the pressures that may bear upon a court to transfer a dependent child from the child’s parents or a shelter into a foster home. It is only natural that a conscientious court, endeavoring to make prompt dispositions of dependent children, will become impatient with what may seem unnecessary and unjustified bureaucratic delays. If in fact placements are being unduly delayed because the foster family care agency is slow in approving foster homes, the agency should be compelled to do its work more promptly. It is not our function, and it would be inappropriate for us, to suggest how this might be achieved. But the remedy cannot be to short-cut the law, which is clear that before a placement may be made under the supervision of a children’s institution, the foster home must have been approved by a foster family care agency as in compliance with Department of Public Welfare regulations.

Finally, we have not overlooked the lower court’s reference in its opinion to the practice of Children and Youth Services, in other cases,

in recommending a particular foster placement, utilizing that family as a foster placement resource, yet, unaccountably, disavowing the clear obligation to assist the children in placement by paying the authorized board rate to their foster parent(s). Typically, the explanation offered is that the home evaluation has not been made, is not complete, or the home fails to meet certain minimal requirements for a CYS subsidy.
Slip op. at 4.

We agree with the lower court that such a practice is “unaccountable].” As we have already discussed, Children and Youth Services is prohibited by Department of Public Welfare regulations from placing dependent children in foster homes that have not been approved by a foster family care agency as in compliance with Department regulations. Children and Youth Services may not avoid this prohibition by recommending to the court that it place the children in an unapproved home. If Children and Youth Services recommends a placement, it must be able to demonstrate to the court that the home is an approved home. Here Children and Youth Services has failed to fulfill that responsibility; in none of the cases before us does the record disclose that the placement that Children and Youth Services has been ordered to supervise is in an approved home. The cases will therefore be remanded to the lower court so that the record in each may be reopened and further proceedings consistent with this opinion may be conducted.

SO ORDERED.

      . The Juvenile Act provides several definitions of a "dependent child.” One definition is a child who "is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.” 42 Pa.C.S.A. § 6302.

      . Children and Youth Services also makes other arguments: whether the lower court was correct in directing foster home payments "when said placement did not meet minimum levels of competency as established by State and County Regulations," Brief for Appellant at 3; whether the lower court was correct in ordering payments "retroactive to a date prior to that on which the dependent child came before the court,” id.; and whether the lower court was correct in ordering payments “when the foster family did not wish to participate in County funding and the attendant supervision,” id. The issues raised by these arguments are not common to all of the appeals, and given our disposition of the issue that is common, it is unnecessary to consider them.


source: Caselaw Access Project

author: MONTEMURO, Judge: VAN der VOORT, Judge,

license: Public Domain

text:
    464 A.2d 341
    COMMONWEALTH of Pennsylvania v. Daryl Nason CLAYPOOL, Appellant.
    Superior Court of Pennsylvania.
    Argued September 30, 1981.
    Filed July 15, 1983.
    Eeargument Denied Sept. 16, 1983.
    Petition for Allowance of Appeal Granted Feb. 2, 1984.

      Frances S. Palmer, Hermitage, for appellant.
    Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before CAVANAUGH, M0NTEMURÓ and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence imposed on the appellant, Daryl Nason Claypool, for rape, involuntary deviate sexual intercourse and simple assault. Appellant contends, inter alia, that the trial court erred in allowing the Commonwealth to introduce evidence of appellant’s prior criminal conviction for rape. The record before us supports the appellant’s contention, and accordingly, we vacate the judgment of sentence and remand the case for a new trial.

The appellant’s contention is centered around the admission of evidence concerning a prior criminal conviction for rape which was alluded to by the prosecutor in his opening statement, brought out in the testimony of the victim and further amplified in the examination and cross-examination of the appellant, and through the testimony of the appellant’s wife as a rebuttal witness for the prosecution.

The facts giving rise to this matter occurred in the early morning hours of November 7, 1979. The appellant, a long distance truck driver, had been in Baltimore, Maryland picking up a load of steel. His wife, Patricia Claypool, was in the hospital undergoing minor surgery. Mrs. Claypool’s sister, Susan Durney, had agreed to babysit for the Clay-pool children, Nason and Amy, ages 3 and 1 and Vz respectively. Mrs. Durney and the children were alone in the Claypool residence on the night and early morning in question.

At about 1:30 A.M., the appellant arrived home unexpectedly, pounded on the door, and was admitted by Mrs. Durney, who was wearing a long-sleeved flannel nightgown. The appellant and Mrs. Durney talked briefly while the appellant drank a beer from a six-pack he had purchased earlier. Mrs. Durney then went upstairs to the bedroom in which the Claypool children were sleeping.

Shortly thereafter, she heard her name being called and went to the doorway of her room. The appellant was standing in the doorway of the other bedroom attired only in a T-shirt and briefs and was holding a gun; either a shot gun or a rifle. He pointed the gun toward her and told her to come into the bedroom. At first, she refused, but he repeated his demand and she entered the bedroom. Mrs. Durney repeatedly asked the appellant to put the gun down because she was scared, but the appellant refused and said to her:

“... better not try to get away or to scream or holler ... he would shoot me and anybody else who got in his way and hopefully that if the police came he would get killed too because he would never go to jail again.”

Mrs. Durney testified that the appellant told her he had been in jail, a fact of which she was aware. He also told her that he had been in jail for rape, a fact of which she was not aware. She recounted appellant’s words:

“He told me that him and another fellow were at his cousin’s house and they had been drinking and they tied up his cousin and then they took the cousin’s wife upstairs and that he was in jail for that.”

She then testified that she was “scared to death because then I knew that that’s what he was going to do to me.” She also testified that the appellant made various other threats, grabbed her wrists, threw her on the bed, pulled off her nightgown and spread her legs, leaving bruises. Appellant proceeded to engage in several acts of sexual intercourse with the victim, both vaginal and oral.

The appellant admitted having sexual relations with Mrs. Durney but claimed the acts were entirely consensual. He ■ acknowledged having the gun while standing in the hallway, but claimed that he had taken it out while contemplating suicide and had forgotten he was holding it when he called to his sister-in-law.

Our scope of review in this matter is the determination of whether the trial court abused its discretion in allowing the admission of evidence of appellant’s prior rape conviction. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977). The trial court’s stated purpose in allowing the introduction of the evidence of the prior conviction was “to show why the will of Susan Durney was overcome to make the act of intercourse and possibly later involuntary deviate sexual relations to be without consent.”

In Commonwealth v. Seigrist, 253 Pa.Super. 411, 385 A.2d 405 (1978), the trial court, sitting without a jury, allowed the treating physician of a rape victim to testify from a written report he had made of the incident. The report stated various attendant facts, including a reported statement by the defendant in which he “told the patient he had been in jail many times, lived in Lebanon, and jumped parole.” Id., 253 Pa.Superior Ct. at 421, 385 A.2d at 410. This court upheld the lower court’s holding that the testimony was admissible, stating:

Appellant’s sole contention is that the italicized portion of the above quoted passage constituted inadmissible hearsay which was prejudicial to the appellant. Appellant correctly notes that the prosecutrix could have testified to what the appellant told her, not to prove the truth of the assertion that the appellant had been in jail many times, but rather to prove the fact of the assertion which was clearly relevant to the question of lack of consent.

Id., 253 Pa.Superior Ct. at 421, 385 A.2d at 410. In Commonwealth v. Kjersgaard, 276 Pa.Super. 368, 371, 419 A.2d 502, 503 (1980), the victim of a rape testified that the defendant said to her “that fifteen other young women had been murdered because they refused his order to undress.” Id., 276 Pa.Superior Ct. at 371, 419 A.2d at 504. The court, relying on Seigrist, supra, ruled that the defendant’s “admissions” were cogent evidence that his victims submitted only upon the threat of injury or death.” Id., 276 Pa.Superior Ct. at 376, 419 A.2d at 506.

While these cases would allow testimony of prior criminal acts as relevant on the issue of the victim’s consent, we do not think they control the present case.

A defendant’s statements regarding his prior criminal acts used as threats to overcome the will of a victim may be used as evidence in the proper circumstances’. However, countervailing principles inherent in our system of jurisprudence militate against the use of evidence which might tend to inflame or prejudice the trier of fact. The general prohibition against admission of evidence of a defendant’s prior criminal acts is one manifestation of the judicial recognition of these principles:

One of our most fundamental and prized principles in the administration of criminal law is that a district crime, unless under special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that a person has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant. Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955); Commonwealth v. Booth, 291 Pa.Super. 278, 287, 435 A.2d 1220, 1225 (1981).

The exceptions under which evidence of prior criminal acts is admissible are well established in the decisions of our courts. They include those cases where the evidence is introduced to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the other; or (5) the identity of the person charged with the commission of the crime on trial. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Booth, supra. To this list is sometimes added an exception wherein the evidence is part of the res gestae of the' charged offense. That is to say that “such evidence is admissible where ‘such prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the material development of facts.’ ” Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975) (quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932)); Commonwealth v. Stufflet, 276 Pa.Super. 120, 419 A.2d 124-25 (1980).

Our Supreme Court, in Commonwealth v. Ulatoski, supra, has established an additional barrier to the admission of prior crimes evidence even where its relevance has been established by its inclusion within one of the above exceptions. The Court determined that a trial court should exercise its discretion:

to exclude the other-crimes evidence, even when it has substantial independent relevancy, if in [its] judgment its probative value for this purpose is outweighed by the danger that it will stir such person in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial. [McCormick, Evidence, § 190 at 453-454] (Emphasis added).

Id. 472 Pa. at 63 n. 11, 371 A.2d at 191 n. 11. This court has set forth the factors to be considered in this balancing tests as:

... on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of their other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmasting hostility.

Commonwealth v. Hude, 256 Pa.Super. 439, 445, 390 A.2d 183, 185-86 (1978) (quoting McCormick, Evidence, § 190 at 453). See also Commonwealth v. King, 290 Pa.Super. 563, 575, 434 A.2d 1294, 1300 (1981); Commonwealth v. Hawkins, 295 Pa.Super. 429, 437-38, 441 A.2d 1308, 1312 (1982).

Applying this two-prong test to the present case, we find that the evidence introduced by the Commonwealth was clearly relevant on the question of the lack of consent of the victim. Commonwealth v. Seigrist, supra; Commonwealth v. Kjersgaard, supra. However, the prejudice engendered by it exceeds its probative value and therefore the trial court abused its discretion in admitting the evidence.

The Commonwealth had more than sufficient evidence without touching upon the appellant’s prior conviction, to establish the victim’s lack of consent; i.e. the appellant pointing a rifle or shotgun at the victim, the repeated threats, the appellant grabbing the wrists of the victim, the appellant throwing the victim on the bed, the appellant causing bruises on the victim’s thighs by forcefully spreading the victim’s legs. All of these facts clearly demonstrate the lack of consent of the victim herein and make the need for the prior conviction evidence slight. Furthermore, we find that, although the evidence of appellant’s prior conviction was convincing, it added little in light of the victim’s other testimony. On the other hand, the prejudice created by the evidence was extensive. Such evidence predisposes the minds of the jurors to believe the accused guilty, and thus effectively strips him of the presumption of innocence. Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978). “Evidence of prior criminal activity is probably only equalled by a confession in its prejudicial impact upon a jury.” Id., 480 Pa. at 606, 391 A.2d at 1050-1051. See also Commonwealth v. Laughman, 306 Pa.Super. 269, 452 A.2d 548 (1982).

In the instant case, the jury was virtually assaulted with references to the appellant’s prior rape conviction throughout the trial. The incident was initially alluded to in the opening remarks of the prosecution; it was elicited, in detail, in the testimony of the victim; it was further reiterated when the appellant was forced, due to the pre-trial ruling, to admit the incident and when he was cross-examined at length concerning it; and it was finally mentioned in the rebuttal testimony of appellant’s wife. It is the frequency with which the evidence is repeated, as well as the elaboration of detail which distinguishes this case from Seigrist and Kjersgaard. The sheer number of references and the elicitation of specific details of the offense from the victim by the prosecution could have no other effect but to unduly prejudice the jury.

The prejudice thus created could not be obviated even by the excellent cautionary instruction given by the trial court judge. Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979); Commonwealth v. Spruill, supra; Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977). Even though the trial judge demonstrated his concern .for the rights of the appellant in attempting to obviate the prejudice of the contested evidence, neither the timing, nor the substance of the instructions could have cleansed the collective minds of the jurors of that fact that this appellant was a convicted rapist.

Finally, we must determine whether the trial court’s allowance of the introduction of this evidence, though error, was harmless error. ' We conclude that it was not. See Commonwealth v. Brunner and Murphy, 305 Pa.Super. 441, 451 A.2d 714 (1982). In light of the numerous, repeated and detailed references to the prior rape conviction, we find that the jury would have been greatly influenced by the improper testimony; past any point which we could justly allow.

We wish to impose one caveat regarding our holding in this case. Our decision is one which is limited to the facts of this case. We could not, nor do we wish to, overrule the prior decisions of this court in Seigrist and Kjersgaard. However, we must distinguish these cases on the bases of the criteria which we have stated throughout this opinion: (1) the repeated, numerous and detailed references to the prior conviction, and (2) the overwhelming evidence at the command of the Commonwealth. We believe that the evidence in this case was, on balance, far too prejudicial to be admitted.

Accordingly, we find that the trial court abused its discretion in allowing the repeated references to evidence regarding appellant’s prior conviction for rape to the appellant’s ultimate and undue prejudice and therefore order that the judgment of sentence be vacated and the appellant be granted a new trial.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

The majority grants a new trial to a convicted rapist notwithstanding the fact that the Commonwealth’s proof of the crime was overwhelming. I cannot subscribe to Such reasoning and therefore I must respectfully dissent. Before expounding further upon my divergence with the majority, I must first note that I have reviewed appellant’s other contentions (See Majority Opinion, p. 321-22, n. 4) and find them to be without merit.

The majority finds that evidence of appellant’s prior rape conviction, as voiced by the appellant himself to intimidate the victim into submission, while relevant, was nonetheless inadmissible. ' Such holding is grounded upon language to the effect that when such evidence of a prior conviction is admissible under one of the five exceptions to the general rule, the court must then balance the probative value against the prejudice to a defendant. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977); Commonwealth v. Booth, 291 Pa.Superior Ct. 278, 435 A.2d 1220 (1981). The exceptions referred to are (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design; and (5) the identity of the person charged. To this list, the majority would add an “exception” of the res gestae of the crime charged. The majority therefore requires balancing of the prosecution’s need against the prejudice to the appellant.

I believe such balancing is improper in the current circumstances. The majority opinion refers to three cases which hold that prior criminal acts or statements referring thereto made or performed in the “same transaction” or “res gestae” are admissible. Commonwealth v. Brown, 462 Pa. 578, 590-91, 342 A.2d 84, 90 (1975); Commonwealth v. Kjersgaard, 276 Pa.Superior Ct. 368, 375, 419 A.2d 502, 506 (1980) and Commonwealth v. Seigrist, 253 Pa.Superior Ct. 411, 421, 385 A.2d 405, 410 (1978). Those courts all found similar crimes or admissions, of crimes were properly admitted because “sordid as they were, [the evidence] was admissible ... because they were part and parcel of the violent rampage” Brown; “were cogent evidence that the victims submitted only upon the threat of injury or death”, Kjersgaard; and such evidence was proper “not to prove the truth of the assertion ... but rather to prove the fact of the assertion which was clearly relevant to the question of lack of consent.” Seigrist. The majority then attempts to distinguish the current case by applying the balancing test and finding that the numerous references and the overwhelming evidence of guilt requires that the evidence be withheld from the fact finder.

I have reviewed six cases which specifically address the issue whether “res gestae” or “same transaction” evidence referring to prior criminal conduct is admissible: Brown, supra; Commonwealth v. Ross, 413 Pa. 35, 195 A.2d 81 (1963); Kjersgaard, supra; Commonwealth v. Stufflet, 276 Pa.Superior Ct. 120, 419 A.2d 124 (1980); Seigrist, supra; and Commonwealth v. Stevens, 237 Pa.Superior Ct. 457, 352 A.2d 509 (1975). All six of the above cases held'that such was properly admitted under the facts of that case. Only one of these cases, Stufflet, mentioned the above balancing test. The majority here attempts to apply the balancing test as a matter of hind sight to Kjersgaard and Seigrist in an attempt to distinguish those two cases from the current situation by finding that here the frequency, as well as the elaboration were greater. I cannot join in such approach; since there is nothing in the opinions referring to the balancing test, one should not assume such was applied.

At the same time, I must not ignore what appears on the surface to be a conflict between Stufflet and Stevens. Stevens held that “[b]y admitting this evidence, we do not weaken the underlying policy of protecting an accused against unfair prejudice. As ... stated in Brown: ‘No error was committed in permitting the full story ... to be told’ 462 Pa. at 591 [342 A.2d 84].” 237 Pa.Superior Ct. at 464 [352 A.2d 509]. Stufflet, held that “[t]he evidence was needed to complete the story of the crime. Moreover, the prejudicial effect was not so prejudicial as [t]hat ... permitted ... in Stevens.” 276 Pa.Superior Ct. at 125, 419 A.2d 124 (Emphasis supplied). The keyword in Judge Hoffman’s opinion in Stevens is “moreover.” Webster’s New Collegiate Dictionary (1980) defines moreover as: in addition to what has been said; besides. In other words when read in the context of Stevens, the holding was that the “whole story” is admissible; besides, even if it was not the balance would fall in favor of the Commonwealth.

The balancing test which the majority applies here was the state of the law at the time of Kjersgaard (1980) and Seigrist (1978); Ulatoski upon which the majority relies was decided in 1977. Therefore, we must assume that this court was aware of such but did not utilize it when relating the “whole story.” The other exceptions all deal with evidence which while relevant, is removed or remote in time, place, or logical connection from the crime charged. The “whole story” is not so removed.

Additionally, I find appellant’s admission of prior criminal activity was more relevant to the charge on trial than that in Brown. There the Commonwealth presented testimony of a rampage involving numerous crimes, all admissible to complete the story. In the current case the prior crime not only completes the story but is material to the lack of consent.

The majority’s emphasis upon the repetition and detail of the testimony is misplaced. The numerous references which are of concern to the majority are for the most part the result of a tactical decision made by the defense. Any opening comment by the prosecutor was a proper summary of the incident of rape. Appellant’s own testimony both on direct and cross examination was a rational tactical approach. He could either sit quiet as to the prior rape and request an instruction to the effect that the admission was offered not for the truth of the matter but to show the fact it was said, or he could attempt to explain the prior incident in an attempt to dissuade the jury from holding it against him. Appellant’s tactical choice was to bare his record to the jury. He may not now complain that such tactic did not prove to be fruitful.

Furthermore, while I find no error, even if error did exist it was harmless beyond a reasonable doubt. While the majority would exclude the testimony in question because the Commonwealth’s case was overwhelming, Seigrist found any error in the admission of similar evidence, was harmless beyond a reasonable doubt “in view of the other overwhelming evidence of force or lack of consent.” 253 Pa.Superior Ct. at 421, 385 A.2d 405. I would hold likewise in this case.

Therefore, I respectfully dissent and would affirm the judgment of sentence.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 2701.'

      . Appellant’s other contentions which are supernumerary in light of our decision are: (1) that trial court erred in refusing the appellant’s requested points for charge nos. 9 and 10; (2) the trial court erred in denying appellant’s motion for mistrial after members of the jury saw the appellant in handcuffs in the custody of the sheriff; (3) that trial judge erred in refusing to recuse himself; and (4) the trial court erred in his recollection of testimony in making the charge to the jury.

      . The appellant testified that he had drunk eight or nine beers during the course of the night.

      . Mrs. Durney testified that the appellant said to her:
      "At the time he said that I would have sex with him willingly or I would be the one that got hurt.”
      ... and:
      "Well, he told me that I better do it and he said I better not scream and holler because ever since he’s been in jail any loud noise like that, if I screamed it would make him crazy.”
      ... and:
      "F_, I told you to f__”

      . The respective courts in Seigrist and Kjersgaard do not specify which of the enumerated exceptions includes these statements. In the present case, the trial court, in its opinion, concluded that none of the exceptions were applicable; it relied strictly on Seigrist and Kjersgaard to justify the introduction of the prior conviction testimony. We cannot accept the lower court’s conclusion inasmuch as a prereq- • uisite to the introduction of such testimony is that it falls within the parameters of an exception to the general exclusionary rule. We find the testimony is evidence of the appellant’s intent; i.e. relevant to prove intent to have sexual intercourse, regardless of the consent of the victim. This is consistent with case law setting forth the necessary elements of the crime of rape. 18 Pa.C.S.A. § 3121. Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980).

      . The dissenting opinion would not avail itself of the second prong of the test used herein because it was not used in Kjersgaard, supra, or Seigrist, supra. We, nevertheless, find ourselves bound by the Supreme Court's decision in Commonwealth v. Ulatuski, supra.

      . The appellant admitted the prior rape conviction on direct examination while testifying.

      . The lower court ruled in a pre-trial hearing that the victim’s testimony regarding appellant’s statement was admissible. When the testimony concerning the statement was presented, the appellant was virtually forced to take the stand to mitigate the prejudicial impact by means of some explanation. The dissent finds this circumstance to be of little consequence, stating, "[Ajppellant’s tactical choice was to bare his record to the jury. He may not now complain that such tactic did not prove to be fruitful.” This overlooks the primary evil which the rule prohibiting other crimes testimony seeks to avoid. By requiring a defendant to take the stand in order to "attempt to explain the prior incident in an attempt to dissuade the jury from holding it against him,” the defendant is being tried for the prior, as well as the present, criminal offense. Commonwealth v. Burdell, supra.

      . During the course of the testimony of Susan Durney, the trial court informed the jury:
      In the testimony of the witness presently on the stand Susan Durney, yesterday it was stated that before the first act of rape or alleged rape the defendant informed her that he had been in jail previously for an alleged rape. According to the prosecutrix Mrs. Durney, the defendant told her the incident involved the wife of a

        cousin of the defendant. I am not going to attempt to recite the details of what Mrs. Durney testified to befoore [sic] because it’s for the jury to determine that, however, this testimony if it be accepted by the jury, that is to be believed, must be used for the sole purpose for which it was offered. That was to show why the will of Susan Durney was overcome to make the act of intercourse and possibly later involuntary deviate sexual relations to be without her consent. You will recall that Mrs. Durney testified to other causes in addition to the information given to her by the defendant concerning that subject but that was one of them.
      The general rule is that evidence of prior criminal acts cannot be considered by a jury in determining the guilt for the act of which that defendant is presently being tried. On the other hand, although this evidence was generally inadmissible it was permitted to be received because it may tend to prove, if believed, one of the necessary elements that the Commonwealth must establish beyond a reasonable doubt for both the offense of rape and the offense of involuntary deviate sexual relations. That is, taking the act that it is claimed or acts that are claimed to be performed as to whether or not the will of the defendant [sic] was overcome. It is necessary that the Commonwealth establish beyond a reasonable doubt that there was forcible compulsion or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. That’s the language of the statute both as to rape and as to involuntary deviate sexual relations. Therefore, the testimony of the defendant’s alleged prior involvement in a rape is to be considered only for what effect it had on a person of reasonable resolution to determine whether or not that by itself or with other acts, the pointing of the gun if that occurred, the physical force if that occurred, or whatever it was that overcame her resistance, if it did, would have done so as to a person of reasonable resolution. That’s the reason and the only reason that that testimony was received and it must be considered by the jury in that limited context. With that we will continue.
      In the charge, the court informed the jury:
      I would like to also hastily tell you that which I told you before and that is the fact that he had been convicted of rape previously or at least pled guilty and had served time cannot be used in anyway [sic] by you to conclude that he therefore raped this girl. That testimony was received only to show why the will of the victim was overcome, if it was. The thought being that if a person puts a gun on you and says, ‘Get in the room here. I want to commit a sexual act upon you,’ you may move but if that person also says to you, ‘I have committed rape before and I’ve served time in jail on that and I’m not going to let anybody take me in the event there’s interference and I’ll use this gun.’ [sic] The combination of those elements may add to the reason why the will of the victim was overcome, if it was, if that was said, and that testimony can be received only for that limited purpose. You can’t say because he did it before he’ll do it now at all, but rather the impact that that testimony had to cause a person of reasonable resolution to have their will overcome if they were in that situation.

        Further:
      He admitted that he did plead guilty in 1971, February 2nd to the crime of rape. The argument of the defendant is well taken that he served his time for that crime and he should not be punished twice for the same crime. And I say to you again that that evidence was not received and cannot be used by you for the purpose of showing because he allegedly raped one time, he raped a second time, but only for. the limited purpose of whether or not the will of Susan Durney was overcome by that information along with the other matters that allegedly occurred.

      . See also Commonwealth v. Turner, 499 Pa. 579, 584, 454 A.2d 537, 540 (1982), in which the court said, "Unless the court determines that the error could not have contributed to the verdict, the ‘reasonable possibility’ that the error did contribute to the verdict negates any notion of harmlessness."


author: WIEAND, Judge:

text:
    464 A.2d 348
    In the Interest of R.R., Juvenile. Appeal of R.R.
    Superior Court of Pennsylvania.
    Argued May 24, 1982.
    Filed July 22, 1983.

      Thomas R. Wilson, West Chester, for appellant.
    John W. Liddy, Assistant District Attorney, West Chester, for Com., participating party.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Appellant, R.R., was involved in a one car automobile accident at approximately 5:30 o’clock, p.m., on July 26, 1980. The other occupant of the vehicle, Gary Walton, died as a result of injuries sustained in the accident. Appellant, a juvenile, was charged with three summary violations of the Motor Vehicle Code, i.e., drivers required to be licensed, driving on the right side of roadway, and driving at a safe speed. Appellant entered a plea of not guilty to all charges, and a hearing thereon was held before a district justice on August 19, 1980. At the conclusion of the hearing, appellant was found not guilty on all charges. Thereafter, on September 17, 1980, a petition was filed in the Juvenile Court of Chester County averring that appellant was a delinquent child based upon his alleged commission of the offenses of receiving stolen property, unauthorized use of a motor vehicle, and homicide by vehicle. The death of Gary Walton, it was alleged, had been caused while appellant was “engaged in the violation of the laws of the Commonwealth of Pennsylvania applying to the operation or use of a vehicle or to regulation of traffic____” Appellant filed a motion to dismiss based upon Sections 109 and 110 of the Crimes Code, double jeopardy and res judicata. The trial court, upon recommendation of a juvenile master, denied the motion to dismiss. Appellant brings this appeal from the order denying his motion to dismiss.

The facts relevant to our resolution of the issues raised on appeal are as follows: On July 26, 1980, at approximately 5:30 o’clock, p.m., Mr. and Mrs. Richard McAllister were leaving a parking lot when they saw an automobile belonging to Robert Caldwell pass them. Knowing the vehicle to have been reported stolen, the McAllisters determined to follow the automobile and report its location to local authorities. After they had followed the vehicle a short distance to Shoen Road, the car left the roadway and crashed into trees near the highway. At the hearing before the district justice on August 19, 1980, Mr. McAllister testified that he could not identify the driver of the vehicle, but stated that when he approached the vehicle following the accident, appellant was banging his head against the window of the door adjacent to the driver’s seat, attempting to get out of the car. Another Commonwealth witness, Ralph M. McGibbin, testified that when he arrived at the accident scene, both appellant and Gary Walton were in the vehicle, Walton on the right or passenger side, and appellant on the left or driver’s side. The investigating officer, Thomas A. Wilkinson of the West Whiteland Township Police Department testified that when he arrived at the accident scene, appellant, apparently in shock, was seated on the ground nearby. In response to Officer Wilkinson’s question, he stated that Gary Walton had been driving the car when the accident occurred. Appellant did not testify or offer any evidence. At the conclusion of the hearing, the district justice entered a verdict of not guilty on all charges.

Thereafter, on September 17, 1980, the Commonwealth filed a petition alleging that appellant was a delinquent child. The petition contained the following averments: “On July 26, 1980, at or about 5:36 p.m. on Shoen Road, West Whiteland Township, Chester County, Pennsylvania, R_ R_, age 15 did operate a 1972 Ford Pinto automobile without the consent of its owner, Robert Caldwell; and further, on the above mentioned date, time, and location, R_ R_ did intentionally receive, retain or dispose of said 1972 Ford Pinto automobile belonging to Robert Caldwell, knowing that said vehicle was stolen, or believing it had probably been stolen without intent to restore it to its lawful owner; and further, on July 26, 1980, at or about 5:36 p.m. on Shoen Road, east of Oak Lane, West Whiteland Township, Chester County, Pennsylvania, R_ R_, while operating said 1972 Ford Pinto automobile, did unlawfully and unintentionally cause the death of Gary Walton, while engaged in the violation of the laws of the Commonwealth of Pennsylvania applying to the operation or use of a vehicle or to regulation of traffic,, to wit: Drivers Required to be Licensed, 75 PA. C.S.A. (1501), Driving on Right Side of Roadway, 75 PA. C.S.A. (3301), Driving Vehicle at Safe Speed, 75 PA. C.S.A. (3361).” (emphasis supplied). The parties have stipulated that the Commonwealth knew of Gary Walton’s death prior to the summary proceedings.

Appellant’s argument that section 110 of the Crimes Code, 18 Pa.C.S. § 110, requiring compulsory joinder of all offenses arising from a single criminal episode, bars the juvenile proceedings instituted against him is without merit. The Pennsylvania Supreme Court held in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), that the compulsory joinder rule and section 110 of the Crimes Code “do not apply to prior summary [proceedings] for traffic violations under the Motor Vehicle Code.” Commonwealth v. Breitegan, 500 Pa. 384, 386, 456 A.2d 1340, 1341 (1983). As the offenses for which appellant was tried and acquitted were summary offenses under the Motor Vehicle Code, section 110 of the Crimes Code does not bar a subsequent prosecution for other, non-summary offenses arising from the same criminal episode.

Appellant’s argument that principles of double jeopardy and collateral estoppel preclude the Commonwealth from commencing juvenile proceedings against him following his acquittal on charges of violating sections 1501, 3301 and 3361 of the Motor Vehicle Code presents a more difficult question. “ ‘The double jeopardy clause breaks down into three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial. The judiciary views these rules as expressions of self-evident moral precepts: It is wrong to retry a man for a crime of which he previously has been found innocent, wrong to harass him with vexatious prosecution, and wrong to punish him twice for the same offense.’ ” Commonwealth v. Grazier, 481 Pa. 622, 630-631, 393 A.2d 335, 339 (1978) quoting Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971) (emphasis in original). Accord: Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Commonwealth v. Bolden, 472 Pa. 602, 618, 373 A.2d 90, 97 (1977); Commonwealth v. Maddox, 307 Pa.Super. 524, 532, 453 A.2d 1010, 1014 (1982); Commonwealth v. Meekins, 266 Pa.Super. 157, 162, 403 A.2d 591, 593 (1979).

“ ‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ” Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2160, 57 L.Ed.2d 24 (1978) quoting Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Accord: United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 2191, 57 L.Ed.2d 65 (1978); Abney v. United States, 431 U.S. 651, 661-662, 97 S.Ct. 2034, 2041-2042, 52 L.Ed.2d 651 (1977); United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977); Serfass v. United States, 420 U.S. 377, 387-388, 95 S.Ct. 1055, 1061-1062, 43 L.Ed.2d 265 (1975). “The most straightforward application of the double jeopardy clause arises when a second prosecution is instituted against an individual who has been acquitted or convicted of the same offense in a prior trial.” Commonwealth v. Bolden, supra 472 Pa. at 620, 373 A.2d at 99. It is well settled that “a verdict of acquittal ... is a bar to a subsequent prosecution for the same offense.” United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). Accord: United States v. Scott, supra 437 U.S. at 91, 98 S.Ct. 2187 at 2193, 57 L.Ed.2d 65. United States v. Martin Linen Supply Co., supra 430 U.S. at 571, 97 S.Ct. 1349 at 1354, 51 L.Ed.2d 642; Serfass v. United States, supra 420 U.S. at 392, 95 S.Ct. 1055 at 1064, 43 L.Ed.2d 265; Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962); Commonwealth v. Zimmerman, 498 Pa. 112, 118, 445 A.2d 92, 95 (1981); Commonwealth v. Mitchell, 497 Pa. 14, 17, 438 A.2d 596, 597 (1981); Commonwealth v. Maurizio, 496 Pa. 584, 586, 437 A.2d 1195, 1195-1196 (1981); 18 Pa.C.S. § 109(1).

In the instant case, appellant was charged with summary violations of the Vehicle Code, tried before a district justice and found not guilty. As the district justice was vested with the authority to try appellant on the summary charges, [See and compare: Commonwealth v. Kirk J., 293 Pa.Super. 487, 439 A.2d 680 (1981); Commonwealth v. Alan D., 291 Pa.Super. 298, 435 A.2d 1231 (1981)], jeopardy attached after the first witness had been sworn. See and compare: Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Commonwealth v. Maurizio, supra; Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981); Commonwealth v. Thinnes, 263 Pa.Super. 79, 397 A.2d 5 (1979). Appellant’s acquittal on these charges, therefore, barred any subsequent prosecutions for the same offenses, even if the “acquittal [were] based upon an 'egregiously erroneous foundation____’” Borough of West Chester v. Lal, supra 493 Pa. at 392, 426 A.2d at 605 quoting Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43 (1978). The Commonwealth’s petition sought to have appellant adjudicated delinquent not for violations of the Vehicle Code, but, rather, as a result of his alleged commission of the crimes of receiving stolen property, unauthorized use of a motor vehicle and homicide by vehicle. While the constitutional prohibition against double jeopardy is applicable to juvenile proceedings, it is readily apparent that neither the double jeopardy clause nor 18 Pa.C.S. § 109(1) bars subsequent proceedings against appellant for receiving stolen property, unauthorized use of a motor vehicle or homicide by vehicle where he was previously placed in jeopardy only on charges of violating provisions of thé Motor Vehicle Code. The offenses are different. However, subsequent proceedings against appellant for the offense of homicide by vehicle are limited by those principles of collateral estoppel which are embodied in the constitutional guarantee against double jeopardy.

“ ‘[Collateral estoppel is issue preclusion. It seeks to prevent relitigation of a finally litigated issue in a subsequent proceeding between the same parties whether the same or different evidence is to be introduced.’ ” Commonwealth v. Lewis, 306 Pa.Super. 81, 83, 452 A.2d 13, 13-14 (1982) quoting Commonwealth v. Hude, (Hude I), 492 Pa. 600, 617, 425 A.2d 313, 322 (1980). “ ‘ “Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” Commonwealth v. Peluso, 481 Pa. 641, 645, 393 A.2d 344, 346-347 (1978) quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Accord: United States v. Venable, 585 F.2d 71, 77 (3rd Cir.1978); Commonwealth v. Grazier, supra 481 Pa. at 632, 393 A.2d at 340.

In order to establish the elements of the offense of homicide by vehicle, the Commonwealth will be required to prove beyond a reasonable doubt that appellant (1) unintentionally caused the death of Gary Walton (2) while engaged in the violation of any law or municipal ordinance applying to the use or operation of a vehicle or to traffic regulation, and (3) that Walton’s death was a “probable consequence” of the conduct. See: Commonwealth v. Houtz, 496 Pa. 345, 349, 437 A.2d 385, 387 (1981); Commonwealth v. Koch, 297 Pa.Super. 350, 443 A.2d 1157 (1982); 75 Pa.C.S. § 3732. The Commonwealth seeks to establish the second and third elements of the crime of homicide by vehicle by proving at the hearing on the juvenile petition alleging delinquency that appellant caused Gary Walton’s death “while engaged in the violation ... [of] 75 PA.C.S.A.' (1501), ... 75 PA.C.S.A. (3301) ... [and] 75 PA.C.S.A. (3361),” and that Walton’s death was caused by appellant’s disregard of such statutes. We agree with appellant that collateral estoppel, a part of the double jeopardy clause, prohibits the Commonwealth from attempting to prove once again that appellant violated sections 1501, 3301 and 3361 of the Motor Vehicle Code. Collateral estoppel requires that where an ultimate fact has necessarily been established in favor of a defendant in a former prosecution, the issue may not be relitigated in any subsequent proceeding against the defendant. Ashe v. Swenson, supra. The district justice, having acquitted appellant on the summary motor vehicle charges, necessarily determined that the Commonwealth had failed to establish that appellant violated sections 1501, 3301 and 3361 of the Motor Vehicle Code. A second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding is prohibited by the double jeopardy clause. See: Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652, 661 (1982); Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978); Commonwealth v. Mitchell, supra 497 Pa. at 17, 438 A.2d at 597; Commonwealth v. Benaglio, 254 Pa.Super. 100, 104, 385 A.2d 544, 546 (1978). In the hearing on the juvenile petition, therefore, the Commonwealth is prohibited from attempting to prove that appellant violated sections 1501, 3301 and 3361 of the Motor Vehicle Code.

Such a determination does not necessarily require that the Commonwealth refrain from attempting to prove that appellant is guilty of homicide by vehicle. The sections of the Motor Vehicle Code which appellant has been found not to have violated are not the only violations which will support a conviction for homicide by vehicle. See: Commonwealth v. Koch, supra 297 Pa.Super. at 357-358, 443 A.2d at 1161. Neither are they lesser included offenses of the crime of homicide by vehicle. See: Commonwealth v. Zimmerman, supra 498 Pa. at 117, 445 A.2d at 96. Proceedings against appellant in juvenile court on the charge of homicide by vehicle, therefore, are not barred under principles of double jeopardy or collateral estoppel, so long as the Commonwealth does not attempt to establish the crime by proving that appellant violated sections 1501, 3301 and 3361. of the Motor Vehicle Code.

The parties to this appeal seek to raise additional, non-double jeopardy issues in this appeal. However, the Bolden exception to interlocutory appeals is “expressly limited to double jeopardy claims, and our cases have made clear that we will not permit ‘piggy-backing.’ ” Commonwealth v. Hude, (Hude I), supra 492 Pa. at 624, 425 A.2d at 325. Accord: Commonwealth v. Hude, (Hude II), 500 Pa. 482, 490 n. 13, 458 A.2d 177, 181 n. 13 (1983); Commonwealth v. Ward, supra, 493 Pa. at 118 & n. 1, 425 A.2d at 402 & n. 1; Commonwealth v. Klobuchir, 486 Pa. 241, 248 n. 5, 405 A.2d 881, 884 n. 5 (1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980). Therefore, we express no opinion on those non-double jeopardy issues raised by the parties.

The record is remanded for proceedings consistent with the foregoing opinion. Jurisdiction is relinquished.

      . 75 Pa.C.S. § 1501.

      . 75 Pa.C.S. § 3301.

      .. 75 Pa.C.S. § 3361.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 3928.

      . 75 Pa.C.S. § 3732.

      . The instant appeal is an interlocutory appeal and this Court's jurisdiction is “predicated solely on the double jeopardy claim pursuant to ... Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).’’ Commonwealth v. Ward, 493 Pa. 115, 118, 425 A.2d 401, 402 (1981), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981) (footnote omitted). Accord: Commonwealth v. Starks, 490 Pa. 336, 339 n. 1, 416 A.2d 498, 499 n. 1 (1980); Commonwealth v. Buffington, 298 Pa.Super. 319, 321 n. 2, 444 A.2d 1194, 1195 n. 2 (1982).

      . The reason for the finding does not appear. Our own review of the record suggests that the Commonwealth failed to prove appellant’s age, that he was unlicensed, or that he drove at an unsafe speed on the wrong side of the highway. There was no finding that appellant was not the driver of the death vehicle.

      . "Collateral estoppel is an integral part of the double jeopardy clause of the Fifth Amendment to the United States Constitution, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and ... appellant, by raising the issue of double jeopardy, necessarily raises the collateral estoppel aspects of the double jeopardy clause.” Commonwealth v. Peluso, 481 Pa. 641, 644, 393 A.2d 344, 346 (1978).

      . The double jeopardy protection of the Fifth Amendment has been made applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The concept of collateral estoppel, as part of the Fifth Amendment protection, is also applicable to the states through the Fourteenth Amendment. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). See: Commonwealth v. Peluso, supra 481 Pa. at 645, 393 A.2d at 346; Commonwealth v. Lewis, 306 Pa.Super. 81, 84, 452 A.2d 13, 14 (1982).

      . The Juvenile Court has jurisdiction over children charged with delinquent acts. In Interest of Ryan, 277 Pa.Super. 433, 436, 419 A.2d 1224, 1225 (1980), appeal dismissed, 499 Pa. 220, 452 A.2d 1018 (1982); The Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6302. Delinquent acts, however, do not include summary offenses, unless the child fails to pay a fine levied thereunder. 42 Pa.C.S. § 6302(2)(ii).

      . An individual is placed "in jeopardy” for purposes of the double jeopardy clause at an adjudicatory hearing on a juvenile petition. See: Swisher v. Brady, 438 U.S. 204, 215 n. 12, 98 S.Ct. 2699, 2706 n. 12, 57 L.Ed.2d 705 (1978); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); In the Interest of George S., III, 286 Pa.Super. 217, 428 A.2d 650 (1981); In the Interest of Stephens, 277 Pa.Super. 470, 419 A.2d 1244 (1980), allocatur granted December 2, 1980. See also: Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980).

      . Section 3732 of the Vehicle Code, 75 Pa.C.S. § 3732, defines the crime of homicide by vehicle as follows:
      “Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.”

      . Included among the issues concerning which we express no opinion is - whether the Commonwealth’s petition may be amended to allege other vehicle violations in support of an accusation of homicide by vehicle.


author: CIRILLO, Judge: ROWLEY, Judge,

text:
    464 A.2d 355
    Lillian DALEY and Frank Daley, H/W (Appellants at No. 236), v. JOHN WANAMAKER, INC. (Appellant at No. 407).
    Superior Court of Pennsylvania.
    Argued March 15, 1983.
    Filed July 22, 1983.

      John F. Fenerty, Philadelphia, for appellants (at No. 236) and for appellees (at No. 407).
    Daniel F. Monahan, Philadelphia, for appellant (at No. 407) and for appellee (at No. 236).
    Before CERCONE, P.J., and ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

On April 8, 1978, the appellant, Lillian Daley went to appellee’s Northeast store to attempt to replace some denim pants of a three-piece suit belonging to her son. She had with her, in a bag, the vest to the suit and the pants, which were shrunken and faded. She was unsuccessful in finding a satisfactory replacement for the pants and was in the process of leaving the men’s department when she was escorted off of the selling floor by two of appellee’s store detectives. In a rather unpleasant scene she was accused of shoplifting the vest in the bag and then was released with her bag containing the pants and vest. She subsequently initiated this trespass action for intentional misconduct including Assault and Battery, Defamation and False Imprisonment. Just before testimony began, the court permitted the appellant to amend her addendum clause to include punitive damages.

The testimony and evidence presented at trial, concerning the incident, was contradictory in almost every respect. When the parties concluded their cases, the Honorable Judge Doty submitted the issue of probable cause to the jury, which returned a verdict in favor of the appellant as to False Arrest and/or False Imprisonment and Assault and Battery, but in favor of appellee for slander and libel. The jury then rendered a verdict in favor of Lillian Daley in the amount of $20,000.00 for compensatory damages, and $30,-000.00 for punitive damages. The jury also awarded $15,-000.00 to appellant’s husband, Frank Daley, for loss of consortium.

The appellee, John Wanamaker, filed post-trial motions for judgment notwithstanding the verdict; for a new trial; and a request for a remittitur. The Court denied appellee’s motions, but granted in part the request for remittitur and reduced the verdict in favor of Lillian Daley for punitive damages from $30,000 to $15,000, and, as to Frank Daley, from $15,000 to $5,000 for compensatory damages. The verdict of $20,000 compensatory damages for Lillian Daley, was not reduced. Judgment was then entered on the above sums. Both sides appealed.

On appeal, the only issue raised by appellant was the impropriety of entering the remittiturs. The trial court has the authority to order a remittitur of excessive damages. Ready v. Motor Sport, Inc., 201 Pa.Super. 528, 193 A.2d 766 (1963). However, the trial court should not interfere with functions of the jury and undertake to determine facts, which is exclusively the province of the jury. When it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the trial court should set aside or reduce the verdict. Jones v. Stiffler, 137 Pa.Super. 133, 8 A.2d 455 (1939). Conversely, if the verdict is supported by evidence, it must be permitted to stand where there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption. Stoughton v. Kinzey, 299 Pa.Super. 499, 445 A.2d 1240 (1982). Therefore, it is the duty of the court to enforce the jury’s verdict unless the circumstances cry out for judicial interference. Prather v. H-K Corp., 282 Pa.Super. 556, 423 A.2d 385 (1980); Stoughton, supra.

Testimony concerning Mrs. Daley’s treatment by appellee’s employees was widely divergent. Appellee’s store detectives stated that they were at all times pleasant, soft spoken, and mindful of embarrassing the appellant. Mrs. Daley testified that they were rough, rude, and yelled at her. Apparently the jury found the appellant’s testimony more convincing.

The decision of whether to award punitive damages and the amount to be awarded are within the discretion of the fact finder. Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970); Restatement of Torts § 908(2) (1939). In Pennsylvania, it has been held that the amount of punitive damages must bear a reasonable relationship to the award of compensatory damages. Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944); Mitchell v. Randal, 288 Pa. 518, 137 A. 171 (1927). However, this Court has upheld an award of punitive damages where there was no award for compensatory damages. Rhoads v. Heberling, 306 Pa.Super. 35, 451 A.2d 1378 (1982).

In the case at bar, the award of punitive damages is only one and a half times the amount of compensatory damages awarded. We cannot say that such an award is improper by law since courts have upheld punitive damage awards proportionally greater than this. See, Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979) (punitive damages six times that of compensatory damages held not excessive). The law in Pennsylvania has not established any fixed ratio between compensatory and punitive damages. Rather, the fact finder should be given broad discretion in assessing an amount which will be sufficient to punish the defendant and set an example to deter him and others from this type of conduct. Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966). Therefore, we cannot say that the jury’s award was so excessive as to be an error of law. Pennsylvania subscribes to the Restatement of Torts, which in § 908 states as follows:

e. Amount of damages. In determining the amount of punitive damages, as well as in deciding whether they shall be given at all, the trier of fact can properly consider not merely the act itself but all the circumstances including the motives of the wrongdoer, the relations between the parties, and the provocation or want of provocation for the act (see § 921).

Accordingly, the award of punitive damages was the prerogative of the finder of fact, in this case the jury. We must then determine if the trial judge’s reduction of these damages was an abuse of his discretion.

When a trial court reduces the amount of damages awarded, it is of the utmost importance that the reasons for that reduction are clearly preserved in the record. The problem faced by an appellate court in reviewing the record in these situations was addressed by the Supreme Court in Sciafe Co. v. Rockwell-Standard, Corp., 446 Pa. 280, 290, 285 A.2d 451, 456 (1971) as follows:

Recognizing the difficult task encountered by an appellate court in reviewing the record when a trial court merely assigns conclusory statements—“interests of justice,” “shocks the court’s conscience” and “substantial justice”—we have attempted to discourage this practice. See, Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971); Hilliard v. Anderson, 440 Pa. 625, 271 A.2d 227 (1970); Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969); Beal v. Reading Co., 370 Pa. 45, 87 A.2d 214 (1952); Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857 (1951). In Hilliard, the defendant was granted a new trial upon the plaintiff’s failure to file a remittitur solely because “the verdict was excessive and shocked the conscience of the court.” Primarily concerned with the “shock the conscience” test, we noted, “[t]he court should state the reasons for this conclusion in order that we may have the opportunity of intelligently determining if an abuse of discretion occurred.” 440 Pa. at 628, 271 A.2d at 229. We now add the “excessive verdict” conclusion to that list of judicial statements requiring additional supporting reasons. (Emphasis supplied).

In reducing the appellant’s punitive damages Judge Doty stated:

... As to punitive damages, the jury awarded Lillian Daley $30,000 in punitive damages. This appeared to the Court to be excessive in view of the compensatory damages [$20,000] stated above. Furthermore, there was no actual malice shown.

It would seem that Judge Doty found some problem in the relationship between the compensatory and punitive damages awards. However, as can be seen from the previous discussion the jury’s award in this case is well within reasonable bounds. If the trial judge finds that the amount of punitive damages, “is excessive simply because the jury has awarded greater damages than the judge himself would have done [the] amount of the verdict must be such that it shocks the conscience of the court since ordinarily the determination of damages is the province of the jury.” Palmer v. Moren, 44 F.Supp. 704, 711 (M.D.Pa.1942). The Federal District Court, applying Pennsylvania law, in Howarth v. Segal, 232 F.Supp. 617 (E.D.Pa.1964), stated as follows:

The alleged excessiveness of a verdict must be measured by a ‘criterion of shockability’. Flank v. Walker, 398 Pa. 166, 171, 157 A.2d 163, 165 (1960). Thus ‘[t]he law in Pennsylvania is well settled that a jury verdict will be interfered with on the grounds of excessiveness only in cases where it is “so grossly excessive as to shock our sense of justice” ’.

Id. at 620.

After reviewing the record and all the testimony given at trial, we cannot say that the amount of the damages awarded to the appellant was so great as to shock our conscience. Nor do we find them disproportionate or so excessive as to require the court’s intervention. Therefore, we find that the order of the court granting appellee a remittitur was an abuse of discretion and an invasion into the province of the jury. Thus, the order of the trial court is reversed and the jury verdict in the amount of $30,000 is reinstated.

As to the remittitur of the compensatory damages awarded to the appellant’s husband Frank Daley, Judge Doty stated in his opinion the following, “[T]he testimony of Mr. Daley concerning the condition of his wife after the incident and his testimony concerning his loss of consortium was rather sketchy ... The court felt, and still feels, that $5,000- was adequate for loss of consortium and the court ordered a remittitur to $5,000.” In Stoughton, supra, this Court set forth the factors that are to be taken into account to determine whether a jury’s award of damages is supported by the evidence as follows:

1) the severity of the injury;
2) whether the injury is demonstrated by objective physical evidence or subjective evidence;
3) whether the injury is permanent;
4) the plaintiff’s ability to continue employment;
5) disparity between the amount of out of pocket expenses and the amount of the verdict; and
6) damages plaintiff requested in his complaint.

Id. 299 Pa.Super. at 503, 445 A.2d at 1242.

Applying the above factors to the instant case, we find that the testimony of Mr. Daley was indeed very sketchy. Frank Daley testified as follows in response to questions on the changes in his wife after the incident;

Q. Will you describe to us how there were differences?
A. Well, she wasn’t sleeping nights. She would take her Valium to try to sleep. - She would sleep half a night, toss and turn.
Q. How about household chores, cooking, washing, things of that nature? Was there any impact there?
A. She wasn’t up to par there either.
THE COURT: What do you mean by up to par?
THE WITNESS: My wife’s a good cook. And after that time she hardly cooked during the week. Maybe on the weekends she would cook some. But I know I had a lot of sandwiches after April 8.
Q. Mr. Daley, was there an impact on your sexual relationship with your wife during that period of time?
A. Yes, sir. She was upset.
Q. And for how long a period did that last before that got back?
A. Well, she got somewhat better after seeing Dr. Schneimann several times.

He then went on to testify that when they went on their usual summer vacation that his wife seemed to participate in the activities as fully as in prior times. Also, there were no out-of-pocket expenses shown.

We have thoroughly reviewed the record and we find that we must agree with the decision of the trial judge. The testimony and the evidence produced at trial only proved that Mrs. Daley did not cook hot meals for a short period and that she was sufficiently recovered to enjoy and fully participate in a summer vacation some few months later. This does not support an award of $15,000 in compensatory damages to Frank Daley for loss of consortium. Therefore, we affirm the order of the court granting the appellee a remittitur from $15,000 to $5,000.

We now turn our attention to appellee’s contentions on appeal. Initially, appellee contends that the trial court erred in allowing the issue of probable cause to be decided by the jury. This Court in DeSalle v. Penn Central Transportation Co., 263 Pa.Super. 485, 491, 398 A.2d 680, 683 (1979), stated as follows:

The want of probable cause is a matter for the court and not the jury when there is no conflict in the evidence, or only slight differences in collateral matter.
It is only when there is a variance in the testimony that the jury must be utilized to determine factual issues. In such instances, the Court has two options: (1) require the jury to find a special verdict upon which the Court may determine the existence of probable cause; or (2) charge the jury under what combination of circumstances, which may be found under the evidence, the defendant did or did not have probable cause for initiating proceedings. Restatement of Torts Section 673, comment d at 437 (1938), cited with approval in Simpson v. Montgomery Ward & Co., Supra [354 Pa. 87] at 96, 46 A.2d [674] at 678 [ (1946) ]. (Emphasis supplied).

In the instant case the testimony was in conflict from the most important aspects of the incident to the most insignificant. Therefore, in this case it was for the jury to decide whether the facts were as testified to by the appellant or by the appellee’s employees. Consequently, this is a factual question to be decided by the jury, which it did in favor of the appellant.

We have also reviewed the judge’s charge to the jury, and have found that it completely covered all the factors to be considered by the jury in making its decision. Therefore, we find that this contention of appellee’s is without merit.

Appellee’s next contention is that the lower court erred in permitting the appellant to amend the complaint prior to trial to include the claim for punitive damages. Amendments to pleadings are freely allowed under the Rules of Civil Procedure. However, an amendment may not introduce a new cause of action after the statute' of limitations has run. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978). The reason for this rule is to prevent prejudice to the adverse party. Junk, supra.

The decision to grant or deny permission to amend is within the discretion of the trial court and we will reverse that decision only upon a showing of a clear abuse of discretion. Geiman v. Board of Assessment and Revision of Taxes, 412 Pa. 608, 614, 195 A.2d 352, 355-56 (1963).
... [A] new cause of action does not exist if plaintiff’s amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent complaint. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 460, 219 A.2d 676, 678-79 (1966); Arner v. Sokol, 373 Pa. 587, 591, 96 A.2d 854, 855-56 (1953); 3 Standard Pennsylvania Practice 682. A new cause of action does arise, however, if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed. 2B Anderson Pennsylvania Civil Practice, 66 1033.28 and 1033.31.

Junk v. East End Fire Department, Id. 262 Pa.Super. at 490-91, 396 A.2d at 1277.

The appellant moved to amend the complaint just prior to trial. The incident in question occurred on April 8, 1978, and the date of the amendment was April 10, 1981. This is slightly more than one year after the statute of limitations had run. However, the .record reveals that the amendment did not affect the pleadings at all and in fact was only an addition to the addendum clause. When the appellant requested to amend the pleadings the discussion went as follows:

MR. FENERTY: If your Honor please, there had been some discussion on Friday as to whether or not plaintiff’s complaint would lie for punitive damages. It was my position then and is now, one, that the complaint as drafted will lie for punitive damages but, two, in the event the Court decides that it does move to amend the addendum clause of the complaint so as to specifically include the word “punitive damages.”
THE COURT: Now in our off the record discussion the Court, I believe, stated that we did not think that the request for punitive damages was actually claimed in the complaint. However, you are now moving formally to amend the addendum clause to include punitive damages?
MR. FENERTY: That’s correct, sir.
THE COURT: You’re not amending any of the factual elements set forth in the complaint?
MR. FENERTY: That’s correct, sir, I am not.
THE COURT: You’re merely amending the addendum clause?
MR. FENERTY: Correct, sir.
MR. FENERTY: If your Honor please, it is my motion that the addendum clause be amended so as to read wherefore plaintiff’s pray judgment against the defendant, John Wanamaker, Inc. for compensatory damages in excess of Fifteen Thousand Dollars and for punitive damages.

As the record illustrates, the judge questioned the appellant closely as to the content and extent of the amendment. “The right to punitive damages is a mere incident to a cause of action—an element which the jury may consider in making its determination—and not the subject of an action in itself.” Hilbert v. Roth, 395 Pa. 270, 276, 149 A.2d 648, 652 (1959). Therefore, we find that the trial judge did not abuse his discretion in permitting the appellant to amend the pleadings in such a fashion before trial.

Appellee’s final contention is that the lower court erred in charging the jury on punitive damages alleging the appellant was not entitled to punitive damages as a matter of law because appellee’s behavior did not warrant the imposition of such damages. The testimony at trial was in conflict in almost every aspect. It was the decision of the fact finder as to what actually took place that day and the jury’s decision indicated that it believed the testimony of the appellant to such a degree that it awarded punitive damages. As previously stated, that is the jury’s prerogative.

Accordingly, as to appellant, we vacate the remittitur of the jury’s award of punitive damages to the appellant and reinstate the jury’s award of $30,000. The remittitur of the compensatory damages awarded to the appellant’s husband is affirmed in the amount of $5,000. The appeal of the appellee is dismissed.

ROWLEY, J., files a concurring and dissenting statement.

ROWLEY, Judge,

concurring and dissenting:

I join in that portion of the Court’s order reinstating the jury’s, verdict in the amount of $30,000 for punitive damages in favor of appellant Lillian Daley. I respectfully dissent, however, from that portion of the Court’s order affirming the reduction, by the trial court, of the amount of compensatory damages awarded by the jury to appellant Frank Daley. I would reinstate the jury’s verdict of $15,-' 000 in his favor.

      . In Hannigan v. S. Klein’s Department Store, 1 D & C 3d 339 (affirmed per curiam 244 Pa.Super. 597, 371 A.2d 872 (1976)) the judge granted a remittitur of the punitive damages on the basis that it would bring those damages more in conformance with Pennsylvania case law. However, the decision of this Court in Rhoads, supra, has made the rationale of that decision obsolete.

        . Pa.R.C.P., Rule 1033 states:
      Rule 1033 Amendment
      A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made .to conform the pleading to the evidence offered or admitted.

      . C.F. Schneider v. Chalfonte Builders, Inc., 11 Bucks 122 (1962) (The right to punitive damages is a mere incident of a cause of action and is not the subject of an action in itself and a plaintiff may amend his complaint to include a prayer for punitive damages even though the statute of limitations would have then run on a new personal injury action.)

      . We are mindful that in some cases an amendment immediately prior to trial may be prejudicial to the defendant. Such an amendment does not give the defendant sufficient notice to enable him to have the requisite financial information which would be required for a proper defense to the award of punitive damages, i.e., net worth, profitability. However, that issue was not raised by the appellee and is therefore waived.