author: CIRILLO, Judge.

text:
    623 A.2d 821
    Anna SHEARS and Stephen Shears, v. Bernard RIGLEY C/O K Mart and K Mart Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed April 16, 1993.

      William P. Marshall, Philadelphia, for appellant.
    Marc S. Rosenberg, Bala Cynwyd, for appellees.
    Before CIRILLO, BECK and KELLY, JJ.
   CIRILLO, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County denying Appellants’ petition to dismiss the instant action based on forum non conveniens pursuant to 42 Pa.C.S.A. § 5322(e). We affirm.

This matter arises out of an alleged slip and fall which occurred at a K-Mart department store located in New Jersey brought by the Appellees, Anna and Stephen Shears (Shears). Initially, Appellants Bernard Rigley (Rigley) and K-Mart Corporation (K-Mart) filed preliminary objections and asserted that venue in Philadelphia was improper. These preliminary objections were denied and Rigley and K-Mart were directed to answer the complaint. Thereafter, Appellants filed a petition to dismiss the action based on forum non conveniens pursuant to § 5322(e) and asserted that in the interest of “substantial justice” the matter should be heard in a New Jersey forum. 42 Pa.C.S.A. § 5322(e).

In ruling on the petition, the trial court found that K-Mart and Rigley failed to offer sufficient reasons, in the interest of substantial justice, for the court to dismiss the matter. Further, the court found that as a result of the Appellants’ dilatory filing of the petition to dismiss, initiation of a law suit in New Jersey would be meaningless, as the statute of limitations had run.

Instantly, neither Rigley nor K-Mart dispute the trial court’s exercise of personal jurisdiction over them or that venue is proper in Philadelphia County. Rather, Appellants contend that pursuant to the Uniform Interstate and International Procedure Act, 42 Pa.C.S.A. § 5322(e), the trial court erred in not dismissing the instant matter under the doctrine of forum non conveniens. See Beatrice Foods Co. v. Proctor & Schwartz, Inc., 309 Pa.Super. 351, 455 A.2d 646 (1982) (section 5322(e) permits a court to dismiss all or part of an action even though jurisdictional requirements have been met).

A section 5322(e) dismissal terminates the litigation in the courts of this Commonwealth unlike the intra-jurisdictional transfer between counties embodied under Pennsylvania Rule of Civil Procedure 1006(d). Rule 1006(d)(1) provides in relevant part:

For the convenience of the parties and witnesses the court upon petition from any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.

Pa.R.C.P. 1006(d)(1). Because our courts lack the authority to transfer matters to courts of our sister states, dismissal of the action is the only permissible result. Alford v. Phil. Coca-Cola Bottling, 366 Pa.Super. 510, 513, 531 A.2d 792, 794 (1987). Section 5322(e) of the Judicial Code provides as follows:

When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.

42 Pa.C.S.A. § 5322(e). Regardless of the differences between a transfer of venue under Rule 1006 and dismissal under section 5322, both remedies are derivative of the common law doctrine of forum, non conveniens. Alford, supra; see Petty v. Suburban. General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987); Beatrice Foods, supra. This court has recognized that the application of the principles of the doctrine of forum non conveniens in both intrastate and interstate cases serves the same essential purpose:

It provides the court with a means of looking beyond technical considerations such as jurisdiction and venue to determine whether litigation in the plaintiffs chosen forum would serve the interests of justice under the particular circumstances.

Alford, 366 Pa.Super. at 513, 531 A.2d at 794. As such, those decisions addressing the application of the doctrine equally apply to dismissal of the instant action pursuant to section 5322. Id.

A plaintiffs choice of forum is given great weight and a defendant has the burden in asserting a challenge to the plaintiffs choice of venue. Walker v. Ohio River Co., 416 Pa. 149, 205 A.2d 43 (1964). Nonetheless, the trial court is vested with discretion in determining whether or not to grant a petition to transfer venue. Hosiery Corporation of America, Inc. v. Rich, 327 Pa.Super. 472, 476 A.2d 50 (1984). If there is any basis for the trial court’s decision to grant the petition to. transfer venue, the decision must stand. In Re Mackarus’ Estate, 431 Pa. 585, 596, 246 A.2d 661, 666-67 (1968) (footnote omitted). This court will not overturn the trial court’s decision unless there exists an abuse of discretion. Caplan v. Keystone Weaving Mills, Inc., 431 Pa. 407, 246 A.2d 384 (1968); Brown v. Delaware Valley Transplant Program, 371 Pa.Super. 583, 538 A.2d 889 (1988); Hosiery, supra; Walker, supra.

Rigley and K-Mart have the burden of clearly adducing both “private” and “public” elements that either “establish such oppressiveness and vexation to a defendant so as to be out of all proportion to plaintiffs convenience ... or [ ] make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.” Petty, 363 Pa.Super. at 281, 525 A.2d at 1232 (quoting Roster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 832, 91 L.Ed. 1067 (1947)). A court must balance the private and public elements and “unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.” Petty, 363 Pa.Super. at 281, 525 A.2d at 1232 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)).

The trial court must consider the following “private” elements in making this determination:

the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Petty, 363 Pa.Super. at 281-82, 525 A.2d at 1232 (citing Gulf Oil Corp, 330 U.S. at 508-09, 67 S.Ct. at 843); see also Rini v. N.Y. Central R. Co., 429 Pa. 235, 239, 240 A.2d 372, 374 (1968); Plum v. Tampax, Inc., 399 Pa. 553, 560-61, 160 A.2d 549, 553 (1960).

Additionally, the following “public” interests must be factored into the trial court’s analysis:

problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation; the appropriateness of having the action tried in a forum where the court is familiar with the law that must govern the case, rather than having a court in some other forum step into a quick-sand of conflict of laws problems and foreign law.

Petty, 363 Pa.Super. at 282, 525 A.2d at 1232 (citing Gulf Oil Corp, 330 U.S. at 508-09, 67 S.Ct. at 843); see also Rini v. N.Y. Central R. Co., 429 Pa. 235, 239, 240 A.2d 372, 374 (1968); Plum v. Tampax, Inc., 399 Pa. 553, 560-61, 160 A.2d 549, 553 (1960).

Appellants have presented both “private” and “public” elements which, they contend, make a strong case for dismissal. The trial court found that the Shears reside and are domiciled in New Jersey; that the cause of action and location of the K-Mart department store were located in New Jersey; and, that witnesses also live in New Jersey. However, it is apparent from the trial court’s 1925(b) opinion that these factors were specifically balanced against the weighty consideration to be given to a plaintiffs choice of forum. The trial court balanced these factors against the following: that the defendant and key witness Rigley lives in Pennsylvania; that Mrs. Shears received some of her medical treatment in Philadelphia; that the Appellants sought the expert opinions of physicians located in Pennsylvania who ultimately may be called to testify at trial; and, that K-Mart maintains six stores in the Philadelphia area. The trial court concluded that the private elements established by Rigley and K-Mart did not rise to the level necessary to evidence such vexation and oppressiveness to Appellants as to override the Shears’ choice of venue.

However, our analysis does not stop here. The trial court must also analyze certain “public” interests before reaching a determination. Petty, supra. Appellants take issue with the trial court’s failure to consider the Philadelphia court’s substantial backlog of civil cases in rendering its decision. Pennsylvania courts have long recognized the administrative burdens that follow when “litigation is piled up in congested centers instead of being handled at its origin.” Plum, 399 Pa. at 561, 160 A.2d at 553 (citation omitted). It is proper for the trial court to address those considerations affecting the court’s own administrative and legal problems, including court congestion. Petty, supra. Here, however, the trial court did not dismiss the matter. As we find that there are sufficient contacts with the Philadelphia forum, we decline to juxtapose the scenario where the trial court dismisses a matter based upon public factors with the scenario where a trial court, well within its discretion, decides to entertain the litigation.

The Appellants contend that the trial court abused its discretion in weighing the relevant factors based on the holding of this court in Cinousis v. Hechinger Department Store, 406 Pa.Super. 500, 594 A.2d 731 (1991). This court recognizes the significance of both the “private” and “public” interests to be considered by the trial court. When reviewing the trial court’s decision to dismiss a matter based on forum non conveniens, this court will find an abuse of discretion if the trial court has clearly erred in weighing the factors to be considered. Petty, 363 Pa.Super. at 282, 525 A.2d at 1232-33 (citation omitted). In Cinousis, the court considered whether the trial court abused its discretion in dismissing the action under section 5322(e). The trial court found that there were no contacts with the Pennsylvania forum other than the fact that the defendant had operated at least one store in Philadelphia. In contrast, as recounted above, the trial court here found that the Appellants had significant contacts with the Pennsylvania forum. Thus, the trial court’s refusal to dismiss the action based on these contacts with Philadelphia County, coupled with the trial court’s implicit finding that the matter would not be placed on a “stockpile” of pending civil suits, was not an abuse of discretion. Petty, supra; Brown, supra; Caplan, supra,; Hosiery, supra.

The court in Cinousis, held, as we hold at instant, that “if there is any basis for the trial court’s decision, the decision must stand.” Cinousis, 406 Pa.Super. at 502, 594 A.2d at 732 (citation omitted). Just as the Cinousis court was bound to the trial court’s finding, we are here, and there is no unyielding or inflexible rule that we can establish that can compensate for the differing facts every case presents.

We also address an additional consideration presented under the facts of this case that was not before the court in Cinousis — the issue of the expiration of the statute of limitations. ’ The trial court noted that the only prejudice which will result by the dismissal of the instant action was the prejudice to the Shears as the statute of limitations had expired, thus precluding a cause of action in New Jersey. In Plum, supra, the Supreme Court, relying upon the Restatement, Second, Conflict of Laws (tentative draft 1957) § 117(e) noted the significance of the expiration of the statute of limitations when a court is faced with a motion to dismiss the action under the doctrine of forum non conveniens:

... the action will not be dismissed in any event unless an alternative forum is available to the plaintiff. Because of [this] factor, the suit will be entertained, no matter how inappropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same would be true if plaintiffs cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant’s stipulation that he will not raise this defense in the second state.

Plum, 399 Pa. at 560, 160 A.2d at 553 (quoting the Restatement, Second, Conflicts of Laws, § 117(c)) (emphasis added).

In Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983) this court, relying on Plum, supra, and section § 117(c), held that dismissal of the complaint on forum non conveniens grounds was improper where the decision would effectively preclude the plaintiff from instituting the action elsewhere due to the expiration of the statute of limitations regardless of the contacts with the Pennsylvania forum. Instead, we affirmed the trial court’s dismissal of the complaint based on the application of the foreign state’s law under a choice of law analysis and “significant relationship” theory established by our supreme court in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). We noted, however, that dismissal on forum, non conveniens grounds, notwithstanding the expiration of the statute of limitations, is permissible if certain conditions are established to eradicate the prejudice to the plaintiff.

We have found that a stipulation made by a defendant that he or she would submit to service of process and not raise the statute of limitations as a defense to the action effectively removed any prejudice to the plaintiff. Daugherty v. Inland Tugs Co., 240 Pa.Super. 527, 359 A.2d 465 (1976) (reversing the trial court’s dismissal of the defendants’ preliminary objections to venue based on forum non conveniens and staying the proceedings in the Pennsylvania forum pending the plaintiffs institution of suit in an appropriate forum); White v. Norfolk & Western Railway Co., 229 Pa.Super. 331, 323 A.2d 68 (1974) (holding that a state may dismiss the complaint on forum non conveniens grounds conditioned upon the stipulation of the defendant that he will accept service and not plead the defense of statute of limitations in a more convenient forum); Norman v. Norfolk & Western Railway Co., 228 Pa.Super. 319, 323 A.2d 850 (1974) (same).

While the Cinousis court similarly relied upon the holdings of Plum, supra, Daugherty, supra, and Norman, supra, in dismissing the plaintiffs’ complaint based on the absence of any significant contact between the plaintiffs’ cause of action and the Pennsylvania forum, those decisions, as noted above, conditioned dismissal on the premise that the plaintiffs be permitted to bring suit in an appropriate forum, unhindered by a statute of limitations defense. This latter factor was not at issue in Cinousis. Here, we are required to look beyond the “sufficiency of contacts” to assure the Shears a forum for relief. Appellants have made a single mention in their Brief that a stipulation to waive the statute of limitations defense has been offered to the Shears. However, the record is completely devoid of any such offer. Accordingly, the trial court did not abuse its discretion in refusing to dismiss the action as the prejudice to the Shears resulting from the expiration of the statute of limitations remains. Plum, supra; Miller, supra; Daugherty, supra; White, supra; Norman, supra.

Notwithstanding, even if the Appellants had offered a stipulation to accept service and waive the statute of limitations defense, we find that under the instant facts the trial court could, -within its discretion, properly refuse to dismiss the action. Petty, supra; Brown, supra; Hosiery, supra; Plum, supra.

Order affirmed.

      . We note that an order sustaining venue or jurisdiction over a person is an interlocutory and unappealable order. Pa.R.A.P. 311(b). However, the trial court "states in the order that a substantial issue” as to the propriety of this matter’s venue and jurisdiction is presented and as such the appeal is properly before us. Pa.R.A.P. 311(b)(2).

      . Restatement, Second, Conflict of Laws (tentative draft 1957) § 117(e) was redrafted and reissued in a substantially similar form under the official draft, Restatement, Second, Conflict of Laws, § 84(c) (1969). Section 84(c) provides in relevant part:
      ... the action will not be dismissed unless a suitable alternative forum is available to the plaintiff. Because of [this] factor, the suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states. The same would be true if plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant's stipulation that he will not raise this defense in the second state.
      Restatement, Second, Conflicts of Laws, § 84(c).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    623 A.2d 827
    COMMONWEALTH of Pennsylvania v. Jerry L. ROSS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1993.
    Filed April 19, 1993.

      Alan Berman, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence entered on May 6, 1992 for possession of a controlled substance with intent to deliver and delivery of a controlled substance. Appellant, Jerry Ross, presents the following issues for our review: (1) whether the trial court erred in denying appellant’s pre-trial motion to compel disclosure of the confidential informant; and (2) whether the trial court erred in sentencing appellant to a mandatory two-year term of imprisonment pursuant to 18 Pa.C.S.A. § 7508(a)(2)(i). For the reasons set forth below, we affirm.

The relevant facts are as follows. On January 8, 1991, a confidential informant brought appellant’s name to the attention of Detective Barry Fox of the Pittsburgh Police Department. The informant told Detective Fox that he had known appellant for several months and that he could get appellant to make sales of Dilaudid to an undercover officer. Detective Fox agreed to use the informant to set up these sales. In exchange for his services, the informant was to be paid for each sale he was able to arrange between appellant and the undercover officer.

As a result of Detective Fox’s undercover operation, appellant made sales of Dilaudid to the undercover officer on January 9, 14, 23, and 28, 1991 and May 15, 1991. The informant arranged and was present at the sales made on January 9, 14 and 23, 1991. Although the informant was not present at the sales made on January 28 and May 15, 1991, appellant testified that prior to each transaction, he was contacted by the informant who encouraged appellant to make the sales to the undercover officer. Detective Fox, however, testified that the informant had no contact with the police regarding the sales of January 28 and May 15.

On May 16, 1991, appellant was charged with five counts each of possession, possession with intent to deliver and delivery of a controlled substance. On November 6, 1991, appellant filed a pre-trial motion to compel disclosure of the identity of the Commonwealth’s confidential informant. This motion was heard and denied by the lower court on March 23, 1992. A trial by jury was held and on March 25, 1992, the jury returned a verdict finding appellant guilty of one count of possession with intent to deliver and one count of delivery as to the May 15, 1991 transaction. Post-trial motions were filed and denied. On May 6, 1992, appellant was sentenced to a mandatory term of two-to-five-years imprisonment and a fine of five thousand dollars for delivery of Dilaudid. Subsequently, appellant filed a motion to modify sentence which was denied. This timely appeal followed.

Appellant first contends that the trial court improperly denied his pre-trial motion to compel disclosure of the identity of the confidential informant. We disagree.

It is well-settled that the Commonwealth has a qualified privilege “to refrain from disclosing the identity of an informer.... ” Commonwealth v. Carter, 427 Pa. 53, 55, 233 A.2d 284, 285 (1967). See Pa.R.Crim.P. 305 B(2)(d). Where the confidential informant is not a witness to the incident at issue, the defendant must show that the Commonwealth’s disclosure of the identity of the informant is “(1) material to his defense; (2) reasonable; and (3) in the interests of justice.” Commonwealth v. Redmond, 395 Pa.Super. 286, 300, 577 A.2d 547, 553 (1990), appeal dismissed, 528 Pa. 601, 600 A.2d 190 (1991); Commonwealth v. Bonasorte, 337 Pa.Super. 332, 355, 486 A.2d 1361, 1374 (1984). Once such a showing is made by the defendant, it is within the discretion of the trial court to determine whether the circumstances require production of the informant. Bonasorte at 355, 486 A.2d at 1374. See Pa.R.Crim.P. 305 B(2)(d).

The first requirement in support of a petition to compel disclosure of a confidential informant is that the defendant demonstrate that production of the informant is material to his defense. In the instant action, appellant asserts that production of the informant is necessary to support his entrapment defense.

In establishing the defense of entrapment, a defendant must show the following:

(a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

18 Pa.C.S.A. § 313(a).

In the case at bar, the informant was paid by the police to arrange Dilaudid sales between appellant and an undercover officer. A total of five sales took place over a period of five months. The Commonwealth contends that as the informant was not in contact with the police in setting up the May 15 sale, the informant’s testimony has no bearing on appellant’s defense. However, appellant testified that immediately prior to the May 15 sale, the informant called appellant, encouraged him to contact the undercover police officer to set up a sale and told appellant the amount to be sold and the price to be paid. Moreover, the May 15 sale occurred after five months of interaction between appellant and the informant. Appellant alleges that during this period of time, the informant continually persuaded appellant to sell his Dilaudid pills and assured appellant that since he had a legal prescription for the pills, selling them was not against the law. Accordingly, we find that the testimony of informant was material to appellant’s defense.

The second requirement for disclosing the identity of a confidential informant is that the request must be reasonable. In the instant action, the only evidence available to appellant in support of his defense was the testimony of the informant. Although the Commonwealth points to the testimony of Officer Fox who stated that the informant’s safety would be jeopardized if his identity were disclosed, Fox’s testimony fails to demonstrate the extent or likelihood of such harm. See Commonwealth v. Pritchett, 225 Pa.Super. 401, 410, 312 A.2d 434, 439 (1973). Hence, as appellant’s need for production of the informant is great and the Commonwealth has failed to show a risk of significant danger to the informant as a result of disclosure, we find appellant’s request to be reasonable.

Finally, appellant’s request for disclosure of the informant must be in the interests of justice. In reviewing this requirement, this court will apply the balancing test of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957):

‘We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony and other relevant factors.’

Commonwealth v. Redmond at 300-301, 577 A.2d at 553 (quoting Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639, 645-46 (1957)). See also Commonwealth v. Carter at 59, 233 A.2d at 287.

Thus, we must weigh the public interest in protecting the flow of information against appellant’s right to prepare his defense of entrapment. Appellant’s only source of evidence in support of his defense of entrapment was the informant’s testimony. Moreover, appellant’s entire defense is based upon the actions of the informant as an agent of the police. Clearly, the informant’s testimony was crucial to appellant’s defense. While the Commonwealth alleges that the informant would be endangered if his identity were disclosed, the Commonwealth has provided no evidence establishing the likelihood or nature of the possible harm to the informant. We agree that as the Commonwealth is currently using the informant in other investigations, it has a valid interest in refusing to disclose the identity of the informant. However, after a careful review of the record, we find that the interest of appellant in preparing his defense outweighs the Commonwealth’s interest in protecting the flow of information to the police in the instant action.

Nonetheless, we find that the trial court’s failure to order the Commonwealth to disclose the identity of the informant was not improper. The purpose of discovery is to “afford a defendant the opportunity to discover evidence which he did not know existed, as well as to seek possession of evidence of which he was aware.” Commonwealth v. Hussmann, 335 Pa.Super. 603, 609, 485 A.2d 58, 61 (1984) (quoting Commonwealth v. Brocco, 263 Pa.Super. 51, 65-66, 396 A.2d 1371, 1378 (1979)). The rules of discovery are not to be abused “by defense counsel to obtain evidence to which the defense has equal access.” Commonwealth v. Hussmann at 609, 485 A.2d at 61 (quoting Commonwealth v. Gelormo, 327 Pa.Super. 219, 231, 475 A.2d 765, 771 (1984)). See Commonwealth v. Ryan, 300 Pa.Super. 156, 165, 446 A.2d 277, 281 (1982) (“If the defense should be able to procure an eyewitness without the Commonwealth’s aid, the Commonwealth need not inform the defense of the witness’s whereabouts.”).

At the suppression hearing, appellant testified that he had personal dealings with the informant, that the informant identified himself as “Chuckie,” that the informant pointed out his house to appellant, and that appellant knew the informant’s full name to be Charles Ray Phillips. Based on this information, the trial court made a finding that appellant was in a position equal to that of the Commonwealth to subpoena the informant. This court will not question a trial court’s finding of fact where it is supported by the record. See Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986); Commonwealth v. Davies, 342 Pa.Super. 318, 329, 492 A.2d 1139, 1144 (1985). Hence, as the trial court found that appellant was in same position as the Commonwealth to subpoena the informant, we find the trial court’s denial of appellant’s request to compel the Commonwealth to disclose the identity of the confidential informant to be proper.

Moreover, even if the trial court’s denial of appellant’s request was improper, appellant would not be entitled to a new trial. In Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985), this court held that where a trial court’s refusal to compel production of a witness does not preclude the defendant from developing the exculpatory evidence himself, we will not find reversible error. Id. at 364, 490 A.2d at 462. As mentioned above, appellant had information regarding the identity and location of the informant. While appellant contends that this information may have been erroneous, appellant makes no showing that he was unable to subpoena the informant with this information. Accordingly, this court would not find reversible error.

Appellant next contends that the trial court erred in sentencing appellant to a mandatory two-year term of imprisonment. Specifically, appellant contends that although the weight of the pills sold was 4.46 grams, as the weight of the controlled substance within the pills was only % of 1 gram, the trial court improperly imposed the mandatory minimum sentence of two years pursuant to 18 Pa.C.S.A. § 7508(a)(2)(i). We disagree.

18 Pa.C.S.A. § 7508(a)(2)(i) provides, in pertinent part:
(2) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance or a mixture containing it is classified in Schedule I or Schedule II under section 4 of that act and is a narcotic drug shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection: (i) when the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams and less than ten grams; two years in prison and a fine of $5,000

Id.

It is clear from the language of the statute that it is the aggregate weight of the mixture containing the controlled substance which is used in determining whether a mandatory minimum sentence must be imposed. Id. See Commonwealth v. Corporan, 531 Pa. 348, 613 A.2d 530 (1992). “When the language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning.” Corporan at 350-52, 613 A.2d at 531 (citations omitted). Accordingly, since the total weight of the pills containing the controlled substance exceeded 2 grams, the trial court properly imposed the mandatory minimum sentence of two years. We affirm judgment of sentence.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(30).

      . The conviction for possession with intent to deliver merged with the conviction for delivery for the purposes of sentencing.

      . Although appellant was involved in five sales, he was only convicted for his involvement in the May 15, 1991 sale.

      . Appellant testified at the suppression hearing that an acquaintance told him that "Chuckie” 's full name was Charles Ray Phillips.


author: OLSZEWSKI, Judge:

text:
    623 A.2d 831
    COMMONWEALTH of Pennsylvania, Appellee, v. Carlos Gene MOOSE, Appellant, COMMONWEALTH of Pennsylvania, Appellant, v. Carlos Gene MOOSE, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed April 20, 1993.

      Allen H. Smith, York, for Carlos G. Moose.
    John Thompson, Jr., Asst. Dist. Atty., York, for Com.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

Carlos Gene Moose (“Moose”) appeals the order entered June 23, 1992, in the Court of Common Pleas of York County denying his motion to dismiss the charges against him. The complex factual and procedural history of this case follows. On February 10, 1988, the Commonwealth filed a complaint against Moose and Quinterio Smart (“Smart”) for the rape and murder of Judy Ketterman. On April 1, 1988, Moose’s counsel filed for discovery, requesting copies of all statements of either Moose, Smart, or any witnesses, police reports, and any exculpatory information in the Commonwealth’s possession. The district attorney failed to fully comply with that request. In the district attorney’s possession, but not produced for discovery, was a statement of Sonny Oglesby (“Oglesby”). The statement contained incriminating statements allegedly made by Moose while both Oglesby and Moose were in the York County prison. Oglesby conveyed Moose’s alleged confession to the Commonwealth pursuant to an agreement between it and Oglesby, whereby the Commonwealth would recommend a lenient sentence in exchange for Oglesby’s information.

Nonetheless, after the Commonwealth failed to produce any discovery, Moose’s counsel filed a formal application for discovery on May 2, 1988. The trial court conducted an evidentiary hearing on May 31, 1988. The court ordered that the materials requested by defense counsel be made available. Oglesby’s statement was not ordered to be made available because at the time, neither the court nor defense counsel knew of its existence. Nonetheless, still having not received the full complement of the materials requested, defense counsel again contacted the district attorney on June 10, 1988, seeking compliance with the request. The court held a second hearing on July 11, 1988. The district attorney produced additional discovery, but once again Oglesby’s statement was omitted. The district attorney repeatedly assured defense counsel and the court that all evidence available to the Commonwealth had been provided to the defense.

Despite these requests and assurances, on the first day of trial, August 17, 1988, the district attorney told the trial court that Oglesby had given a statement on April 5, 1988, and that the Commonwealth intended to call Oglesby as a witness. Defense counsel requested a continuance and/or sanctions. The trial court agreed to grant a continuance so that defense counsel could examine Oglesby’s statement. Nonetheless, the district attorney requested that the court impose a sanction precluding Oglesby’s statement, so that the trial could go forward. At that point, the trial court precluded use of the statement.

When the Commonwealth presented its case, it offered the testimony of a detective who testified to Moose’s statement upon his arrest. In the statement, Moose denied raping or beating Judy Ketterman, but admitted being present when Smart raped her. Moose took the stand on his own behalf and once again stated that he did not rape the victim and that he fled when he saw Smart starting to beat the victim. Thereafter, contrary to its initial ruling and over defense counsel’s objection, the trial court without explanation permitted Ogles-by to testify in rebuttal of Moose’s testimony. Oglesby stated that Moose told him that he had raped Ms. Ketterman and that he had hit her in the head with a rock. On re-rebuttal, Moose stated that he had never spoken to Oglesby concerning the crime.

A jury convicted Moose of first-degree murder, conspiracy to commit murder, rape, and conspiracy to commit rape. Although the Commonwealth sought the death penalty, the jury returned a sentence of life imprisonment. The court sentenced Moose to life imprisonment plus a consecutive term of fifteen to thirty years.

Moose filed post-trial motions, contending that the Commonwealth’s “understanding” with jailhouse informant Ogles-by deprived him of the Sixth Amendment right to counsel, because Moose in effect gave a statement to the Commonwealth without the safeguards afforded by counsel’s presence. At a hearing on those motions, the district attorney admitted to an “implied understanding” with Oglesby, whereby Oglesby informed the district attorney about statements made by individuals in the York County prison awaiting trial. The trial court stated that while it did not encourage the practice of exchanging information in this way, it did not find that a new trial was warranted. Moose appealed to this Court. We reversed the conviction and granted a new trial. Common wealth v. Moose, 393 Pa.Super. 379, 574 A.2d 661 (1990) (hereinafter “Moose I”).

We held that Moose was deprived of his Sixth Amendment right to counsel because the Commonwealth had taken a statement from Moose, via Oglesby, without benefit of counsel; that the Oglesby-Commonwealth implied understanding violated the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecution’s suppression of evidence favorable to an accused upon request violates due process) and required a new trial; and that the Commonwealth’s failure to comply with the discovery rules also required a new trial. The Commonwealth appealed the Superior Court’s decision to the Pennsylvania Supreme Court, which affirmed the grant of a new trial. Commonwealth v. Moose, 529 Pa. 218, 602 A.2d 1265 (1992) (hereinafter “Moose II”).

The Supreme Court reasoned that Moose’s right to counsel had attached at the time he spoke with Oglesby in the York County prison, because Oglesby was an agent of the Commonwealth. Id. at 228, 602 A.2d at 1270. The Court characterized as “villainy” the Commonwealth’s practice of leaving Oglesby in the York County jail to collect information from anyone charged with a crime. Id.

In addition, the Supreme Court affirmed this Court’s finding that Oglesby’s statement was material to Moose’s case. Oglesby testified that Moose stated he hit and raped the victim. This was significant to the issue of Moose’s guilt. The Supreme Court also noted that Moose’s discovery request was general in nature and did not specifically request information on government witnesses or agreements between the Commonwealth and its witnesses. The Court stated, however, this omission was directly a result of the fact that the district attorney failed to identify Oglesby or disclose" his existence at the outset. Id. at 234, 602 A.2d at 1273. In the context of the discovery hearings in this case, it is clear that the district attorney’s assurances that all material evidence had been made available to the defense were false. As a result of the Court’s “deep concern over the conduct of the Commonwealth in this instance, [the] matter [was] referred to the Disciplinary Board for its consideration.” Id. at 240, n. 12, 602 A.2d at 1276, n. 12. The Moose II Court stated that:

what the district attorney appears to have attempted to do was to try his case with last minute disclosures. Such a plan was fundamentally unfair and violated the discovery rules. The purpose of the discovery rules is to permit the parties in a criminal matter to be prepared for trial. Trial by ambush is contrary to the spirit and letter of those rules and cannot be condoned. We agree with the statement of the Superior Court in a similar instance, remarking that “[o]ur court has condemned such gamesmanship in criminal prosecutions.” Commonwealth v. Thiel, 323 Pa.Super. 92, 100, 470 A.2d 145, 149 (1983). In Thiel, the Commonwealth “left the [evidence] conspicuously out of its short pre-trial list of tangible evidence in its possession, and used the [evidence] skillfully in rebuttal.” Id. See also Comment to Rule 305.

Id. 529 Pa. at 236, 602 A.2d at 1274.

The Court also addressed the Commonwealth’s contention that the admission of Oglesby’s statement was harmless error, finding that “Oglesby’s statement was extremely damaging since he testified that Moose admitted to having sex with the victim and hitting her with a rock. The Commonwealth has clearly failed to meet its burden of proving beyond a reasonable doubt that the error could not have contributed to the verdict.” Id. at 239, 602 A.2d at 1276 (citation omitted). Thus, the Superior Court’s grant of a new trial was affirmed.

On April 16, 1992, before this case could be retried, Moose filed a motion to disqualify the prosecutor. On April 29, 1992, after a hearing, the motion was granted. Thereafter, on May 6, 1992, Moose filed a motion to dismiss the charges on double jeopardy grounds. The trial court set a hearing date for May 26, 1992. On May 18, 1992, Moose had also filed a motion to bar the Commonwealth from seeking the death penalty on retrial. On June 23, 1992, the trial court denied Moose’s motion for dismissal of the charges, but granted his motion to bar the Commonwealth from seeking the death penalty on retrial. This appeal followed.

PART I. DOUBLE JEOPARDY

Moose argues that re-prosecution is barred in this case by the double jeopardy clause of the Pennsylvania Constitution, as recently interpreted in Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992). In response to Moose’s request for dismissal of the charges, the Commonwealth argues first that its only transgression was against the criminal discovery rules, for which the remedy is continuance or estoppel from using the evidence withheld by the Commonwealth. See Pa.R.Crim.P., Rule 305(E), 42 Pa.C.S.A. The Commonwealth also argues that the reason for the grant of a new trial in this case is that the trial court reversed, mid-trial and without explanation, its decision to preclude Oglesby’s statement at trial. Therefore, it argues that prosecutorial misconduct was not the impetus for Moose’s new trial, and that therefore Moose is not entitled to discharge under the double jeopardy clause.

Moose relies upon Smith, in which the Supreme Court instructed that:

[t]he United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

Smith at 184, 615 A.2d at 324.

Before the Supreme Court heard Smith, Pennsylvania law provided that double jeopardy would bar retrial only where the Commonwealth’s prosecutorial misconduct was aimed at goading a defendant into moving for a mistrial. Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987) (adopting Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)). The rationale underlying this holding involves trial strategy. Where the Commonwealth grows dissatisfied with the progress of a trial, it might, as a strategic maneuver, provoke a defendant to move for mistrial and thus procure a second opportunity to try the case. Id. Regardless, as long as defendant is in control of the progress of his trial, as in moving for mistrial, the double jeopardy clause and its concomitant protections are not implicated. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). Because the prosecutorial strategy of goading for mistrial is a deliberate effort to achieve a second trial, and another opportunity to convict, however, the Supreme Court has held that the double jeopardy clause protects a defendant in this situation. Simons, supra. In contrast, that misconduct which “was undertaken in bad faith to harass the defendant deliberately” did not bar retrial on double jeopardy grounds. Simons at 14, 522 A.2d at 540. The rationale for the distinction is that bad faith conduct undertaken to prejudice or harass is not necessarily designed to achieve a second trial. Nonetheless, the outcome of the misconduct is the same. The defendant is deprived of a fair trial.

In Smith, the defendant was a high school principal who was tried for the murder of a schoolteacher. Smith was accused of conspiring with the victim’s husband to murder her and recover proceeds from her life insurance. Smith’s first conviction was reversed after the Supreme Court found that inadmissible hearsay statements were admitted as evidence at trial. The Supreme Court then granted Smith a new trial. Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989). Before the second trial was conducted, defense counsel learned that the Commonwealth had concealed physical evidence. The relevant evidence consisted of “adhesive lifters” used to remove sand from the victim’s body. This evidence was a vital part of Smith’s defense, because he had contended that the murder occurred in Cape May, New Jersey, a location at which Smith could not be placed at the time of the murder. The Commonwealth knew of this evidence at the time of trial. The prosecution’s misconduct, however, did not end with its concealment of the adhesive lifters. The Commonwealth also accused a police officer of fabricating testimony that sand was found on the victim’s body. Id. The Supreme Court found it “hard to imagine more egregious prosecutorial tactics.” Id. 532 Pa. at 182, 615 A.2d at 323.

The Court held that even though the prosecutor’s conduct was not aimed at goading the defendant to move for a mistrial, the conduct was outside of the realm of all principles of justice and fairness. Smith at 183-184, 615 A.2d at 324. Therefore, the Supreme Court overruled Simons and held that double jeopardy would bar retrial in cases where the prosecution intentionally deprived the defendant of a fair trial. Smith at 184-186, 615 A.2d at 325.

The effect of Smith, however, is not to create a per se bar to retrial in all cases of intentional prosecutorial misconduct. Rather, Smith merely adds to the exceptions to the general rule that when a defendant moves for mistrial on the grounds of prosecutorial overreaching, retrial will not be barred under the double jeopardy clause of the Pennsylvania Constitution. Until Smith, the only exception to the general rule was that set forth in Oregon v. Kennedy and Commonwealth v. Simons. Now, in order for double jeopardy to bar retrial in cases of prosecutorial misconduct, there must be a showing that the Commonwealth either (1) goaded the defendant into moving for a mistrial, or (2) specifically undertook to prejudice the defendant to the point of denying him a fair trial. Absent such a showing, retrial is not barred. Common wealth v. Rightley, 421 Pa.Super. 270, 617 A.2d 1289 (1992). The prosecutorial misconduct at Moose’s trial was not the same type of overreaching or harassment involved in Smith.

The misconduct in this case is not such that Moose was provoked to move for mistrial. Nor can it be construed to be conduct that intentionally deprived Moose of a fair trial. After repeated requests, the Commonwealth failed to disclose Oglesby’s identity or the existence of his statement until the first day of trial. Additionally, the existence of the “understanding” between the Commonwealth and Oglesby was not disclosed until after Moose’s conviction. If it had been disclosed, Oglesby’s credibility would have been tested by cross-examination. By failing to timely reveal the existence of the agreement, the Commonwealth knowingly foreclosed Moose from attempting to create in the minds of the factfinder the existence of a reasonable doubt arising from Oglesby’s motivation for testifying. Accordingly, the appropriate remedy is a new trial:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with [the discovery rules], the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

Pa.R.Crim.P., Rule 305(E), 42 Pa.C.S.A.

We have already determined that Moose’s Sixth Amendment rights were violated by the district attorney’s behavior. Moose I, supra. The Supreme Court affirmed this holding and proceeded to refer the Commonwealth’s conduct in this matter to the disciplinary board. Moose II, supra. The district attorney’s behavior signified and represented a breakdown in our system of administration of justice. We do not find, however, that this is equivalent to a specific intention to deprive the defendant of a fair trial, as in Smith.

The prosecution in Smith deliberately withheld for four years clearly exculpatory evidence that was crucial to Smith’s potentially successful defense. The Commonwealth in Smith continued to seek the death penalty while it continued to conceal the exculpatory physical evidence. The misconduct in this case, however, consisted of violations of the criminal discovery rules and the Brady doctrine. The prosecution in Moose’s case did inform the court and defense counsel of Oglesby’s statement, albeit at the last minute. Thus, the prosecutor’s conduct, while egregious, does not rise to the level of subversive tactics present in Smith. In this case, it may fairly be stated that the prosecutor reprehensibly attempted to gain the upper hand by making a last-minute disclosure. There is no evidence here, as there was in Smith, that the Commonwealth intended to forever conceal Oglesby’s statement. Moreover, the result of withholding Oglesby’s statement is not the same as in Smith, where a crucial piece of physical evidence clearly exculpatory to the defendant was withheld. As a result of defense counsel’s objection, Oglesby’s statement was precluded. Nonetheless, the trial court without explanation subsequently allowed Oglesby to testify during trial. This was error. It is not a case, however, where the evidence and misconduct at trial show a clear, calculated orchestration by the prosecution to deny Moose a fair trial. Therefore, Moose is not entitled to discharge under Smith. A new trial -will present Moose with a fresh opportunity for full cross-examination of all testimony, the unexpected admission of which originally created the need for a new trial of this case.

The Commonwealth also argues that the reason for the grant of retrial is the trial court’s erroneous reception of Oglesby’s statement, and not prosecutorial misconduct. Therefore, it argues that the appropriate remedy is preclusion, which negates the misconduct in this case. We agree. The Supreme Court, in its affirmance of this Court’s grant of a new trial, stated specifically:

[w]hat is particularly harmful about this case is that [Moose] evidently relied upon the agreement not to use the statement of Oglesby____ We believe that unless a new trial is granted, we would be condoning and encouraging such last minute disclosures and gamesmanship. Thus, for the foregoing reasons, we hold that the trial court abused its discretion in permitting Oglesby to testify on rebuttal, and a new trial is required.

Moose II, 529 Pa. at 237, 602 A.2d at 1275. Moose II states that a new trial is granted because the trial court abused its discretion. In addition, the Supreme Court found the district attorney’s misconduct to be so egregious as to require referral to the disciplinary board. Double jeopardy principles, however, do not prevent Moose’s retrial where as here, the prosecutorial misconduct is not “intended to prejudice the defendant and thereby deny him a fair trial.” Smith at 186, 615 A.2d at 325. Indeed, the Supreme Court has taken note that “every act on the part of a rational prosecutor is meant to prejudice the defendant by placing before the judge or jury evidence leading to a finding of guilt.” Kennedy, 456 U.S. at 674, 102 S.Ct. at 2089.

We have cautiously scrutinized the facts, procedure, and recent pronouncement by the Pennsylvania Supreme Court in Smith concerning double jeopardy. On the basis of those factors, we find that the conduct of the district attorney in this case does not constitute the type of overreaching contemplated by the Supreme Court when it granted criminal defendants the right to use the bar of double jeopardy as a shield against retrial in cases where the prosecution subverts relevant trial evidence. For the above-stated reasons, the order of the trial court denying Moose’s motion for dismissal of the charges is affirmed.

PART II. RETRIAL ON DEATH PENALTY

The question presented in the Commonwealth’s cross-appeal is whether it should be permitted to seek the death penalty on retrial. The Commonwealth notified the trial court that it intended to seek the death penalty on retrial. Moose filed a pretrial motion requesting that the Commonwealth be barred from seeking the death penalty. The court granted Moose’s motion. The basis for the trial court’s decision is Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). In Bullington, the Supreme Court majority held that the sentencing procedure at Bullington’s first trial was similar to the trial on guilt or innocence. Accordingly, the Court held that the jury’s sentence of life imprisonment at the first trial meant that the jury had “already acquitted the defendant of whatever was necessary to impose the death sentence.” Bullington at 445, 101 S.Ct. at 1861. The Court reasoned that the double jeopardy clause would forbid retrial of the death penalty issue where the jury had acquitted the defendant of a death sentence. Bullington at 446, 101 S.Ct. at 1862. The trial court adopted this rationale. We affirm.

The order of the trial court denying Moose’s motion for discharge is affirmed. The order granting Moose’s motion to bar the Commonwealth from seeking the death penalty on retrial is affirmed. Jurisdiction is relinquished.

      . The Commonwealth has also filed a cross-appeal in this case. The cross-appeal is from the court’s order, also of June 23, 1992, granting Moose’s motion to bar the Commonwealth from seeking the death penalty on retrial. See part II, infra.

      . The Commonwealth also argues that Moose received what he requested on appeal, i.e., a new trial, and should not now be permitted to seek additional relief in the form of dismissal of the charges. We disagree. A defendant is not required to file for dismissal under the double jeopardy clause on direct appeal. Moose requested and was granted a new trial. It is not axiomatic from that juncture, however, that the Commonwealth will undertake re-prosecution. Once that decision has been made by the Commonwealth, the question of being placed twice in jeopardy is ripe for review. Until that time, we will not address the question, because this Court does not issue advisory opinions. Application of Milton S. Hershey Medical Center of Pennsylvania State University, 407 Pa.Super. 565, 595 A.2d 1290 (1991). Therefore, Moose did not waive the present double jeopardy challenge, as the Commonwealth’s argument suggests.


author: POPOVICH, Judge: FORD ELLIOTT, Judge,

text:
    623 A.2d 838
    COMMONWEALTH of Pennsylvania, Appellee, v. Walter STAFFORD, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1992.
    Filed April 20, 1993.

      Frederick W. Ulrich, Thomas A. Thornton and Joseph Cagnoli, Jr., Asst. Public Defenders, Harrisburg, for appellant.
    Richard E. Guida, Asst. Dist. Atty., Harrisburg, for Com., appellee.

      Before ROWLEY, President Judge, CAVANAUGH, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH and FORD ELLIOTT, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Dauphin County, following appellant’s conviction by a jury of four counts of receiving stolen property. Herein, appellant contends the trial court erred in refusing to instruct the jury that the Commonwealth must prove the goods in question were actually stolen in order to sustain a conviction for receiving stolen property. We agree and, accordingly, reverse the decision of the court below.

The statute in question, 18 Pa.C.S.A. § 3925, Receiving Stolen Property, provides, in pertinent part, as follows:

(a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

At trial, appellant requested the lower court to instruct the jury that in order to convict him of receiving stolen property, the Commonwealth was required to prove beyond a reasonable doubt the following: 1) The property was stolen; 2) Appellant was in possession of the property; and 3) Appellant knew the property was stolen or had reason to believe it was stolen. Appellant’s request was consistent with prior interpretation of the statute. See, Commonwealth v. Kinsey, 249 Pa.Super. 1, 375 A.2d 727 (1977); Pennsylvania Suggested Standard Criminal Jury Instruction, 15.3925A.

However, the lower court, at the urging of the Commonwealth, refused to instruct the jury that the Commonwealth must prove beyond a reasonable doubt that the property in question was actually stolen. Rather, focusing upon the precise language of the statute, the court instructed the jury:

The [appellant] is charged with the crime of theft by receiving stolen property and in order to find the defendant' guilty of this crime, you must be satisfied that the Commonwealth has made out the following elements beyond a reasonable doubt.
First, that he intentionally received or disposed of property of another. Secondly, that he received or disposed of it knowing that it had been stolen or believing that it had probably been stolen.... (N.T., pp. 135-136).

In ruling on appellant’s post-verdict motions, the lower court held that the Commonwealth is not required to prove that the property was stolen in order to sustain a conviction for receiving stolen property. In reaching its decision, the lower court noted the distinction between the language of the prior version of receiving stolen property and the present. Prior to the present version of receiving stolen property, 18 Pa.C.S.A. § 3925, which became effective on June 6, 1973, the offense was defined as:

Receiving Stolen Property. — Whoever buys, has, or receives any goods, chattels, money or securities, or any other matter or thing, which shall have been stolen or feloniously taken, either in this Commonwealth or in any other state or country, knowing, or having reasonable cause to know the same to have been stolen or feloniously taken, is guilty of a felony.... (Emphasis added.)

18 Pa.S.A. § 4817 (1943, May 21, P.L. 306, § 1) (repealed). See also 18 Pa.S.A. § 4817 (1939, June 24, P.L. 872, § 817) (repealed).

As the lower court noted, missing from the present version of the statute is the language “which shall have been stolen or feloniously taken”. The prior version of the statute expressly required not only that the suspect know or have reasonable cause to know the property was stolen but also that the property actually be stolen. 18 Pa.S.A. § 4817 (repealed). The present statutory language, however, does not expressly require the Commonwealth to prove that the property was stolen. 18 Pa.C.S.A. § 3925(a).

Despite the lack of specificity regarding the requirement that the Commonwealth must prove that the property was stolen, modern Pennsylvania case law supports appellant’s position that the Commonwealth must prove the goods were actually stolen in order to obtain a conviction for receiving stolen property. For, example, in Commonwealth v. Kinsey, 249 Pa.Super. 1, 10, 375 A.2d 727, 731 (1977), the defendant asserted that the Commonwealth failed to prove that the property in his possession was stolen. Therein, we recited the language of 18 Pa.C.S.A. § 3925, and stated:

The requisite factors for proof of this crime are set out in Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971), where the court states: “[i]t is settled that the Commonwealth has the burden of proving three distinct elements of the crime of receiving stolen goods: (a) that the good are stolen; (b) that the defendant received such goods; and (c) that he received them knowing, or having reasonable cause to know that they were stolen.” See also Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973); Commonwealth v. White, 233 Pa.Super. 195, 334 A.2d 757 (1975).

The Commonwealth and the lower court submit that Kinsey, supra, and all case authority for the “stolen” requirement either pre-date the 1972 Crimes Code (thus, ruling on the express statutory requisite that the goods be “stolen or feloniously taken”) or mechanically recite the antiquated case law on the subject. In fact, we note that not once since the language of the offense of receiving stolen property was changed by the Crimes Code of 1972, has this court or our Supreme Court directly commented upon the difference between the language of the two statutes. However, we do not believe that fact alone renders the well-established case authority obsolete.

Herein, we expressly rule that the Commonwealth must first establish that the goods in question are actually stolen in order to sustain a conviction for receiving stolen property. It is not enough that the Commonwealth proves only that: 1) The defendant received property of another; and 2) He received the property knowing it was stolen or believing it had probably been stolen. The Commonwealth also must establish that the property was actually stolen. By so ruling, we simply require the Commonwealth to continue to prove an element of the crime which “is both sound and firmly established in the case law ...” Subcommittee Note, Pa.S.S.J.I. (Crim.) 15.-3925A. See Davis, supra; Henderson, supra; Williams, supra; White, supra; Peluso, supra; Gore, supra; Deemer, supra; Houmis, supra; Wilcox, supra; Harrison, supra; Phillips, supra; Worrell, supra; Grabowski, supra; Stasiak, supra.

The elimination of the requirement that the goods be stolen would create a situation in criminal law that, while it may not be unique, is most unusual — a victimless crime. If the Commonwealth did not need to prove the property in question was stolen, it is possible that no person or business entity has been criminally injured. We are convinced that the more prudent interpretation of the statute requires proof that the goods were stolen. This interpretation is supported by the very title of the crime in question, “Receiving stolen property”; that is to say that the continued use of the word “stolen” and its inclusion in the theft section of the Crimes Code indicates the necessity of the predicate offense of a theft. See 1 Pa.C.S.A. § 1924.

The Commonwealth expresses its concern that such an interpretation would render it difficult, if not impossible, in some situations to obtain a conviction for theft by receiving stolen property. The Commonwealth submits that large retailers will never be able to say whether a particular item was stolen, especially items upon which no serial number appears. However, if we were to accept the Commonwealth’s justification for eliminating the “stolen property” element of the crime, we would, in fact, shift the burden of proof to the defendant to show that his possession of an item was legitimate before the Commonwealth has established that the defendant’s possession was even suspect, much less criminal. That would be directly contrary to the most basic principle of criminal jurisprudence — the presumption of innocence.

In addition, the Commonwealth is concerned about the problem addressed in the Model Penal Code, § 223.6, Comment 4(b) which states:

(b) Stolen in Fact. There is no requirement in Section 223.6 that the property in fact has been stolen; it is sufficient if the actor believes that the property has probably been stolen. A problem has sometimes arisen under existing law as to whether property loses its “stolen” character when law enforcement officers or agents of the owner apprehend the thieves, resume control of the property, and thereafter permit the thieves to carry out a previous arrangement to deliver the property to a receiver. [Footnote omitted.] Normally, such questions must be analyzed in terms of whether the purported receiver can then be convicted of attempt, and the issue turns on the attitude of the jurisdiction toward “impossibility” as a defense to attempt.
The formulation of Section 223.6 completely avoids this problem by focusing not on the abstract character of the property but on the receiver’s belief that the property has probably been stolen. Thus, in a case such as [People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906) (receiver cannot be held for attempt to receive stolen property since completion of transaction would not constitute receipt of stolen property) ], it would not matter whether the property is still properly described as “stolen” after the owner resumes control and then allows the thieves to pass it on to the purported receiver. The critical issue will be one of culpability, namely, whether the receiver obtains the property believing that it probably belongs to another and has been stolen. The receiver can of course hold this belief regardless of the actual status of the property and a conviction can thus be obtained without posing the difficult analytical inquiries that the Jaffe court thought critical in applying that statute involved in that case. (Footnote added.)

Although the Model Penal Code specifically excluded proof that the goods were actually stolen as an element of the offense, the problem which the Model Penal Code sought to alleviate has already been solved in Pennsylvania by the elimination of the defense of legal impossibility.

In Commonwealth v. Henley, 504 Pa. 408, 474 A.2d 1115 (1984), our Supreme Court ruled that the defense of legal impossibility has been abrogated in Pennsylvania, see 18 Pa.C.S.A. § 901(b), and consequently, a defendant may be convicted of attempt to receive stolen property regardless of whether the goods are actually stolen. Therefore, a defendant could still be convicted of attempt to receive stolen property when the goods were, in fact, not stolen or had lost their “‘stolen’ character” once in the control of law enforcement officers. See Henley, supra.

With the crime of attempt to receive stolen property, it is the defendant’s mens rea that is key to the guilt determination. On the other hand, our interpretation of 18 Pa.C.S.A. § 3925 requires the Commonwealth to prove that the goods were stolen before the inquiry turns to the defendant’s culpable knowledge or intent. Instantly, had the Commonwealth wished to forego proof of the stolen status of the goods, it could have simply charged appellant with attempt to receive stolen property.

In conclusion, we hold that the Commonwealth must prove that the property in question was actually stolen in order to sustain a conviction for receiving stolen property. Our decision today simply restates that which, for the past twenty years, has been the consistent and proper application of 18 Pa.C.S.A. § 3925. Since the lower court did not correctly instruct the jury on the elements of receiving stolen property, we remand for a new trial.

Judgment of sentence reversed. Case remanded for a new trial.

FORD ELLIOTT, J., files a concurring and dissenting opinion in which McEWEN and BECK, JJ., join.

FORD ELLIOTT, Judge,

concurring and dissenting:

I agree with the majority that in a prosecution for theft by receiving stolen property the Commonwealth must prove as an element of the crime that the property was in fact stolen. Additionally, it bears emphasizing that circumstantial evidence may be utilized to establish this element. The focus must be on proving the status of the goods — not on attempting to identify the “victim” of the crime or the circumstances of the theft. If the victim can be identified, then certainly the Commonwealth can produce the victim and evidence regarding the theft. However, as set out by the Commonwealth, such bright line evidence is not always available. For instance, in situations where the defendant is in possession of goods or automobile parts with obliterated identification numbers, such as a warehouse storage area or “chop shop,” the identity of the true owner, and therefore evidence of a theft, may never be capable of proof. However, under such circumstances, the introduction of the goods, their quantity and character, the obliterated identification numbers, and the circumstances under which the property was discovered should all be admissible on the question of whether the goods were stolen. Such factors could provide ample circumstantial evidence from which a jury could infer that goods were stolen and that defendant had knowledge of this fact.

However, while I agree with the majority that the trial court did not properly instruct the jury on the elements of the crime, I cannot agree that a new trial is the proper remedy under the facts and circumstances of this case. Rather, I would find that the Commonwealth did produce evidence to establish appellant’s guilt as to all the elements of the crime. Appellant was arrested as the result of a “sting” operation set up by the Pennsylvania Attorney General’s Office in conjunction with the Dauphin County District Attorney’s Office and the Harrisburg Police Department. As set out by the Commonwealth and verified by the record:

On five different occasions, appellant sold items to agents operating the store. All items had original price tags affixed. On the fifth occasion, the Appellant entered the ‘general store’ and borrowed a box from the agents and left. Shortly thereafter, a second party, Richard Moses, entered the store carrying the same box that the Appellant had borrowed and proceeded to sell the agents the items contained in the box, all of which still had original price tags affixed to them.
The undercover agents turned over the above items to the Harrisburg Police Department, where photographs were taken of each item. The police then returned the items to their owners. Additionally, the police were able to extract a still picture of the individual involved in the above transactions from the videotape. The picture was later identified as the Appellant.
The Harrisburg Police then requested that the Appellant come to the police station. The Appellant complied and, while there, denied stealing the items in question. Rather, the Appellant stated that he had received the items from two males on 13th and Derry Streets, who were druggies and were known to the Appellant ‘Gary’ and ‘Doogie.’ The Appellant stated that he did believe the items were stolen.
On January 11 and 12 1990, the Honorable Warren G. Morgan of the Dauphin County Court of Common Pleas presided over the Appellant’s jury trial on five (5) counts of theft by receiving stolen property. At trial, two agents from the Office of Attorney General and two officers of the Harrisburg Police Department testified to the above-stated facts. Additionally, representatives of the burglarized stores testified that their stores did sell the type of merchandise at issue and that like items were missing from inventory.

Appellee’s brief at 2-4 (notations to notes of testimony omitted).

Based on the above, I would find that the Commonwealth presented sufficient evidence to establish, beyond a reasonable doubt, that the goods were stolen. Since our standard of review when confronted with a challenge to jury instructions is whether the instructions were erroneous and whether such error prejudiced or harmed appellant, I must affirm the judgment of sentence in this instance. See Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989), appeal denied, 525 Pa. 619, 577 A.2d 890 (1990); Commonwealth v. Tharp, 373 Pa.Super. 285, 541 A.2d 14 (1988) (defendant is entitled to new trial for instructional error only where such error has been clearly prejudicial). While I agree that the charge given to the jury was erroneous in that it did not include the element that the Commonwealth must prove the goods were actually stolen, I believe that such error was harmless. As evident from the previously recited facts, the Commonwealth clearly presented sufficient evidence that the goods in this case were stolen. Accordingly, appellant cannot claim to have been harmed by the error in omitting that element from the instructions. For appellant to claim relief based on this erroneous charge, he must convince this court that had the correct charge been given, the jury might have found that the goods were not stolen and returned a different verdict. My review of the evidence does not lead me to believe that scenario would have occurred. The evidence clearly establishes, beyond a reasonable doubt, that the goods were stolen.

The majority, however, questions the appropriateness of this review of the sufficiency of the evidence, at this juncture, when the evidence has never been reviewed by a jury in light of the correct instructions. My response is two-fold. First, any challenge to jury instructions necessarily requires a review of the evidence adduced at trial, as all challenges to jury instructions must be considered in light of the evidence. See Commonwealth v. Tharp, supra. As set out by this court in Commonwealth v. Humphreys, 367 Pa.Super. 154, 532 A.2d 836, at 840 (1987),

Where the evidence clearly supports the omitted instruction, thereby leaving little room for speculation by the jury, this Court has held that the failure to define an element to the jury was not prejudicial error. See Commonwealth v. Ehrsam, 355 Pa.Super. 40, 59-60, 512 A.2d 1199, 1208-1209 (1986); Commonwealth v. Goins, 348 Pa.Super. 22, 501 A.2d 279 (1985); Commonwealth v. Mlinarich, 345 Pa.Super. 269, 287, 498 A.2d 395, 403-404 (1985) (en banc), allocatur granted, 512 Pa. 115, 516 A.2d 299 (1986). Cf. Commonwealth v. Waller, 322 Pa.Super. 11, 468 A.2d 1134 (1983) (clear misstatement of law was prejudicial).

Second, and perhaps more important, the appellant has placed the sufficiency question before this court by directly raising it on appeal.

The first issue presented by appellant in his brief questions whether the Commonwealth failed to prove that the property was actually stolen. Appellant has argued to this court that there was insufficient evidence to sustain the verdict because the Commonwealth failed to establish, by way of direct evidence, from whom and under what circumstances the property was stolen. Specifically, appellant points to the testimony of the burglarized retail dealers as insufficient to establish that the particular items in question were stolen. However, as set out above and recognized by the majority’s holding today, this is not the requirement of proof placed on the Commonwealth. In cases involving theft by receiving stolen property, the Commonwealth’s burden of production may be satisfied by direct or circumstantial evidence and the circumstances of a theft need not be proven. Instantly, in assessing all of the evidence presented by the Commonwealth, I believe there was little room for speculation by the jury that the goods in question were in fact stolen. The only conclusion to which such an assessment can lead is that appellant’s conviction was proper and the trial court’s erroneous jury instruction was not prejudicial.

McEWEN and BECK, JJ., join in this concurring and dissenting Opinion.

      . 18 Pa.C.S.A. § 3925.

      . The Model Penal Code, § 223.6, served as the basis for the present offense of receiving stolen property when the Legislature drafted the 1972 Crimes Code, Legislative Journal, Senate of Pennsylvania of 1972, p. 1633 (September 12, 1972), and reads:
      (1) Receiving. A person is guilty of theft if he purposely receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with the purpose to restore it to the owner. ...

      . Since enactment of the 1972 Crimes Code, all cases governing the crime of receiving stolen property either do not specifically rule on the issue presented herein or rely upon pre-1972 Penal Code cases as authority. For example, see Davis, supra (pre-dated the present version of the statute); Henderson, supra (disposed of an offense governed by 1939 Penal Code); White, supra (ruled on language of 18 Pa.C.S.A. § 3925, but relied on Davis, supra, without analysis of the different statutory language); Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978) (crime occurred prior to enactment of 1972 Crimes Code, and decision expressly cites 1939 Penal Code language, “stolen or feloniously taken”); Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976) (does not address issue in question); Commonwealth v. Gore, 267 Pa.Super. 419, 406 A.2d 1112 (1979) (although ruling on 18 Pa.C.S.A. § 3925, cited Davis, supra, as authority); Commonwealth v. Deemer, 316 Pa.Super. 28, 462 A.2d 776 (1983) (cited five cases in support of “actually stolen” element, all of which can be traced to the 1939 Penal Code and related cases); Commonwealth v. Houmis, 227 Pa.Super. 573, 307 A.2d 339 (1973) (offense governed by 1939 Penal Code); Commonwealth v. Wilcox, 310 Pa.Super. 331, 456 A.2d 637 (1983) (relied exclusively upon Davis, supra); Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981) (relied on cases which do not address "actually stolen” element or which rely upon cases decided under the 1939 Penal Code); Commonwealth v. Phillips, 258 Pa.Super. 109, 392 A.2d 708 (1978) (mechanically relied upon cases decided under 1939 Penal Code); Commonwealth v. Worrell, 277 Pa.Super. 386, 419 A.2d 1199 (1980) (relied upon Phillips, supra); Commonwealth v. Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982) (relied upon Williams, supra, Harrison, supra, Worrell, supra, and Phillips, which have all been cited above); Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982) (citing § 3925, but quoting no authority for proposition that goods must actually be stolen).

      . Pennsylvania Suggested Standard Criminal Jury Instruction 15.-3925A, includes as an element of the crime of receiving stolen property, “that the property was stolen property”. In the Subcommittee Note, it is recognized that:
      ... This version of the elements is in accordance with the elements of receiving stolen property under the 1939 Penal Code, see Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978). However, it is not wholly consistent with the interpretation which the Draftsmen of Model Penal Code Art. 223.6(1), on which Crimes Code § 3925 is patterned, would give their article. They reject the idea that the property must in fact be stolen property, the accused’s belief that it is stolen will suffice....
      In drafting the elements, the subcommittee has incorporated the requirement that the property was in fact stolen property; this element is both sound and firmly established in the case law, see e.g., Commonwealth v. Kinsey, 249 Pa.Super. 1, 275 [375] A.2d 727 (1977) (conviction reversed for insufficient proof that goods were stolen property); Commonwealth v. Henley, 312 Pa.Super. 564, 459 A.2d 365 (1983), aff'd 504 Pa. 408, 474 A.2d 1115 (1984) (receiver is guilty of attempt if goods are not stolen property).

      . The Commonwealth submits that in Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980), our Supreme Court held that there are only two elements to the crime of receiving stolen property — receipt of the property and knowledge that the property was stolen. That is not the case. In Scudder, supra, it was clear that the property was stolen, and therefore, the issue presented herein was never addressed. In fact, our high court cited Peluso, supra and Davis, supra, as correctly setting forth the elements of receiving stolen property. As previously noted, both of those cases require proof that the goods were actually stolen.

      . We note that the Commonwealth may prove that the goods were “stolen” by means of circumstantial evidence alone. It has long been the law of this Commonwealth that circumstantial evidence and the inferences drawn therefrom can support a conviction under the standard of beyond a reasonable doubt. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1991); Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902 (1991).

      . In Henley, supra, an informant entered a jewelry store and offered to sell five gold chains to the defendant. The informant told the defendant that the chains were stolen, and the defendant purchased the chains. At trial, the defendant demurred to the evidence, arguing that the goods were not stolen property because they were in police custody, and, therefore, he could not be found guilty of attempt to receive stolen property which was not actually stolen. The trial court granted the demurrer. The Superior Court reversed and remanded for trial. Our Supreme Court granted allocatur and affirmed the decision of the Superior Court.

      . We note that a person who is guilty of an attempted offense is subject to the same penalty as that which could have been imposed upon the completed offense, see 18 Pa.C.S.A. § 905(a). Therefore, as a practical matter, there is no penal difference whether the property was stolen.

      . In her concurring and dissenting opinion, Judge Ford-Elliott applies the majority’s holding to the facts of this case and concludes that the Commonwealth did present sufficient evidence from which the jury could infer that the good were stolen. Therefore, the dissent would affirm the judgment of sentence.
      The majority, however, has determined that remand for a new trial is necessary. It is not the function of the appellate court to make factual findings. Cf. Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied, Iannaccio v. Pennsylvania, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (task of reviewing court is not to conduct a de novo determination, but only to determine whether there was substantial evidence to support the decision below). A review of the sufficiency presupposes that the jury (or judge) has had an opportunity to consider the evidence and apply the relevant law. Instantly, the question of whether the evidence was sufficient to prove beyond a reasonable doubt that the goods were stolen was never presented to the jury. Mindful that it is prerogative of the fact finder to believe all, part or none of the evidence presented, Commonwealth v. Blassingale, 398 Pa.Super. 379, 581 A.2d 183 (1990), we must remand for a new trial. Otherwise, appellant’s conviction will be sustained without the jury ever considering whether the goods were stolen, and it is possible that in a subsequent trial, the jury might not find that the Commonwealth sustained its burden of proof. Only if the jury has addressed the issue and decided against appellant may this court review whether the evidence was sufficient to sustain the jury's verdict.

      . Also, the Commonwealth presents the sufficiency of the evidence as an alternate basis for affirmance on appeal.

      . The retail dealers had testified that they sold the particular type of merchandise and that such like items were missing from their inventories.


author: WIEAND, Judge:

text:
    623 A.2d 845
    William FLETCHER, Appellant, v. The RAYMOND CORPORATION and F.J. Schindler Equipment, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed April 21, 1993.

      Eric Bush, Philadelphia, for appellant.
    Francis P. Burns, III, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

William Fletcher, an employee of Kiddie City, was injured when he fell from the fork of a forklift truck on which he was riding as he returned to work after a lunch break. In an action against the manufacturer of the forklift, The Raymond Corporation, and its distributor, F.J. Schindler Equipment Co., for failing to give adequate warnings of the dangers inherent in riding on the forks of a forklift, the trial court entered summary judgment in favor of the defendants. From this order the plaintiff filed the present appeal. After careful review, we affirm.

Fletcher was hired in the fall of 1981 by Kiddie City to work in its warehouse during the Christmas season. His duties required, inter alia, that he operate a forklift. On the night of October 31, 1981, after completing a meal break, Fletcher and three other employees climbed onto the forks of the forklift for the ride back to the area in which they were working. Fletcher was standing with Patrick Smith on one fork, while the other two employees were on the other fork. Smith, who was closest to the operator, had grasped the truck mast for support, while Fletcher, who was standing near the top of the fork, facing the operator, held onto Smith’s shoulder for support. Thus, only his feet were in contact with the moving truck. When the truck shook, as if it had struck a pothole, Fletcher lost his balance and stumbled off the machine. His depositions disclose, however, that he landed on his feet with “perfect balance.” Unfortunately, as Fletcher attempted to remount the moving forklift, a truck wheel came into contact with his foot and knocked him down. The truck then ran over his foot and lower leg, causing injuries which resulted in the amputation of his leg below the knee.

The two forklifts in operation in the Kiddie City warehouse had been sold in 1977. At the time of manufacture the forklifts were equipped with two warning decals. One decal (6%” by 3%”, black letters on green background) was at the operator’s station, affixed to the operator’s console. It was entitled “Safety First” and contained nine separate warnings. The first of these was “NO RIDERS PERMITTED,” and the last was “READ AND UNDERSTAND OPERATOR’S MANUAL BEFORE OPERATING.” A second decal had been affixed by the manufacturer to the load backrest which was bolted to the front of the truck and which provided additional support for high palletized loads. This decal contained the words “NO RIDING” in black letters, one and one-half inches in height, on a green background. On one of the forklifts operated at Kiddie City, however, the load backrest, with the attached decal, had been removed following manufacture and sale.

A final warning decal had been placed on the Raymond forklifts in 1977 by dealers at the instruction of the manufacturer. This warning, placed in the operator’s compartment, was entitled, “WARNING — FOR YOUR SAFETY AND THE SAFETY OF OTHERS.” The warning was six (6") inches by eight (8") inches and consisted of red letters on a metallic background. It provided, inter alia, “DO NOT CARRY PASSENGERS.”

Despite these warnings, Fletcher admits that he and other employees of Kiddie City routinely rode around the warehouse on the forks of the forklift trucks. At times, in fact, as many as seven (7) would ride on the forks by holding on to each other’s arms and shoulders. Although Fletcher had operated both forklifts, he testified that he did not take notice of the warning decals.

After extensive discovery, the defendants filed a motion for summary judgment, and when plaintiff failed to file a timely response, the trial court treated the motion as uncontested and entered summary judgment in favor of defendants. This order was subsequently vacated, and plaintiff was granted additional time to respond. When he again failed to respond, the trial court took up the matter once again as an uncontested motion. However, the court’s order was based, not on plaintiffs default, but upon the lack of merit in his alleged cause of action.

A motion for summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the nonmoving party and must resolve all doubt against the moving party. Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984).

There is no genuine issue of material fact in this case. Whether plaintiff was attempting to remount the forklift when he was injured, as plaintiff testified, or whether he was only thinking about it when struck, as an expert opined in attempting to reconstruct the accident, is not a material difference. It does not prevent the entry of summary judgment if defendants are otherwise entitled thereto as a matter of law. The trial court, thus, did not err when it accepted plaintiffs testimony. Indeed, it is now settled that a party’s witness cannot extricate the party from the position in which the party has placed himself by his own testimony. Scull v. Epstein, 167 Pa.Super. 575, 579, 76 A.2d 245, 246 (1950); Roche v. Pennsylvania Railroad Co., 169 Pa.Super. 48, 56, 82 A.2d 332, 336 (1951).

In order to recover on a theory of strict products liability, it must be shown that (1) the product was defective when it left the hands of the manufacturer, and (2) the defect was a proximate cause of plaintiffs injury. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975); Foley v. Clark Equipment Co., 361 Pa.Super. 599, 605-606, 523 A.2d 379, 382 (1987); Carrecter v. Colson Equipment Co., 346 Pa.Super. 95, 100, 499 A.2d 326, 329 (1985). A product may be deemed defective if it lacks adequate warnings or instructions necessary for safe use of the product. Walton v. Avco Corp., 530 Pa. 568, 576, 610 A.2d 454, 458 (1992); Mackowick v. Westinghouse Electric Corp., 525 Pa. 52, 56, 575 A.2d 100, 102 (1990). The duty to warn, however, does not require a manufacturer to educate and instruct a novice in the principles of the product’s operation. Mackowick v. Westinghouse Electric Corp., supra at 56, 575 A.2d at 102. It also does not require that a manufacturer warn of obvious dangers which are generally known and recognized. Sherk v. DaisyHeddon, 498 Pa. 594, 600, 450 A.2d 615, 618 (1982); Mucowski v. Clark, 404 Pa.Super. 197, 203, 590 A.2d 348, 351 (1991). “A warning of inherent dangers is sufficient if it adequately notifies the intended user of the unobvious dangers inherent in the product.” Mackowick v. Westinghouse Electric Corp., supra 525 Pa. at 56, 575 A.2d at 102. As the court stated in Hon v. Stroh Brewery Company, 835 F.2d 510 (3rd Cir.1987):

[A] ... manufacturer may assume that users or consumers will possess the common knowledge of the community. It must therefore warn only of latent risks. Overpeck v. Chicago Pneumatic Tool Co., 823 F.2d 751, 754 (3d Cir. 1987) (applying Pennsylvania law); Conti v. Ford Motor Co., 743 F.2d 195 (3d Cir.1984) (applying Pennsylvania law). If the product’s risks “w[ere] known or should have been known to the user, liability cannot be imposed upon the manufacturer merely because the manufacturer has failed to warn of that propensity.” Sherk v. Daisy-Heddon, Div. of Victor Comptometer Corp., 498 Pa. 594, 450 A.2d 615, 618 (1982).

Id. at 513. See also: Brown v. Caterpillar Tractor Co., 741 F.2d 656, 661 (3d Cir.1984).

Whether a product is defective because of a failure to give an adequate warning is initially a question of law to be decided by the trial court. Mackowick v. Westinghouse Corp., supra 525 Pa. at 56, 575 A.2d at 102. See also: Azzarello v. Black Bros., 480 Pa. 547, 558, 391 A.2d 1020, 1026 (1978). Assuming, without deciding in the instant case, that the manufacturer of a forklift truck can be required to warn users of the dangers inherent in falling from or jumping on a moving vehicle, it is eminently clear that that responsibility was met in this case. “Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Restatement (Second) of Torts, § 402A, comment j.

In the instant case, moreover, it was not appellant’s riding the fork alone which caused his injury. It was, rather, his failure to hold onto the vehicle which caused him to lose his balance and fall from the fork. This was a risk so well known that it did not require an additional, specific warning.

Appellant contends finally that a jury could have found appellees negligent because they failed to provide him with a course training him to operate a forklift and because they failed to collect and document accident data for incorporation into the design of their vehicle. However, we find it unnecessary to consider these averments of fault. It is clear that the omissions of appellees in these regards were not the proximate cause of plaintiffs fall. See: Sherk v. Daisy-Heddon, supra; Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 527 A.2d 140 (1987); Conti v. Ford Motor Co., supra.

AFFIRMED.


author: ROWLEY, President Judge:

text:
    623 A.2d 849
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Thomas VELTRI.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed April 23, 1993.

      Thomas A. McDonnell, Pittsburgh, for appellant.
    Michael J. Colarusso, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and JOHNSON and MONTGOMERY, JJ.
   ROWLEY, President Judge:

State Farm Mutual Automobile Insurance Company (“State Farm”) appeals from the order entered following the denial of its request for an independent medical examination of appellee/insurance claimant, Thomas Veltri. State Farm claims that a physician’s report, issued in connection with a peer review of this case, contained an opinion on causation which State Farm could not rely upon in good faith. Because State Farm is essentially asking us for an advisory opinion, we dismiss the case without considering the questions raised by State Farm.

In November of 1990, appellee was involved in a motor vehicle accident whereby he allegedly sustained various personal injuries. He underwent medical treatment for these injuries, but was not billed until September of 1991. Appellee’s insurance carrier, State Farm, then submitted these bills and corresponding medical records to the Tri-State Rehabilitation Group for a peer review pursuant to 75 Pa.C.S.A. § 1797(b). The peer review organization retained a board certified neurologist to evaluate whether the treatment at issue was “reasonable” and “medically necessary.”

The neurologist’s report stated in pertinent part: “[TJherapy and evaluations which did not take place until six months following the motor vehicle accident could no longer reasonably be causally related to this motor vehicle accident.” State Farm is concerned that the law does not permit it to rely upon this report, and has requested an opportunity to conduct an independent medical examination of appellee. The trial court responded to State Farm’s request for the examination as follows:

In this case, State Farm has already obtained an independent medical evaluation which conclusively found that the medical treatment was not related to the automobile accident on the basis of the information furnished by the insured’s treating physicians. Consequently, this is not a situation in which the information available to the insurance company is insufficient to permit the insurance company to evaluate the claim.

Trial Court Opinion at 2-3. We find that the trial court’s decision is not unfavorable to State Farm, and that State Farm is essentially asking us to confirm whether it should rely on the decision. '

State Farm has not petitioned our court with a true controversy. The trial court determined that State Farm has suffident information to evaluate the daim, and acknowledged the neurologist’s report as information available to it. Therefore, we view State Farm’s request for an independent medical exam as an indirect means of assessing whether the trial court’s determination, though favorable to appellant, correctly applies the law. We are not permitted to render advisory opinions, Courtney v. Ryan Homes, Inc., 345 Pa.Super. 109, 119, 497 A.2d 938, 942 (1985), and for this reason, we must dismiss the appeal.

Appeal dismissed.

      . 75 Pa.C.S.A. § 1797(b) (1992), Pennsylvania Motor Vehicle Financial Responsibility Law.

      . State Farm cites a trial court opinion for two propositions: 1) whether "treatment was related to an automobile accident is not an issue for which § 1797(b) provides peer review evaluations”; 2) a claimant may bring a bad faith claim under § 8371 when an insurance company denies him coverage based on findings from a peer review "on issues for which there is no provision for a peer review under § 1797(b).” Knox v. Worldwide Insurance Group, 140 P.L.J. 185, 189 (Alleg. Co.1991). Because State Farm interprets the peer review medical report as having found that treatment was not related to appellee’s automobile accident, it fears that reliance on this report would be an act of bad faith.