author: JOHNSON, Judge.

text:
    570 A.2d 552
    Joseph E. COLEMAN, Appellant, v. PHILADELPHIA NEWSPAPERS, INC., F. Gilman Spencer, Richard Aregood, Zachary Stalberg and Don Haskin.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1989.
    Filed Feb. 21, 1990.

      J. Shane Creamer, Philadelphia, for appellant.
    Samuel E. Klein, Philadelphia, for appellee.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge.

Joseph E. Coleman, a public official, appeals from the trial court’s denial of his new trial request following a jury defense verdict in a defamation suit. We are asked to determine whether the court abused its discretion by trying the issues of falsity and actual malice separately from — and prior to — the remaining issues. We must also determine whether, as a result of bifurcation, Coleman was precluded from presenting evidence of the publisher’s belief regarding the alleged defamatory nature of certain newspaper articles. We conclude that the court acted well within its sound discretion in ordering bifurcation of the falsity and fault issues and that Coleman was not prohibited from inquiring into the publisher’s state of mind. Accordingly, we affirm.

On March 25, 1983, Coleman filed a defamation suit against Philadelphia Newspapers, Inc. (owner of the Philadelphia Daily News), F. Gilman Spencer, Richard Aregood, Zachary Stalberg and Don Haskin, hereinafter “the Daily News.” This suit followed the Daily News’ publication of two editorial remarks regarding Coleman’s alleged practice, as President of the Philadelphia City Council, of hiring his relatives to fill city jobs. A jury trial was held between January 5, 1988 and January 27, 1988. At the outset, the court ordered that the trial be bifurcated. The court determined that the parties would first litigate the issues of whether the complained of statements were true and whether the publisher acted with actual malice in the publication of these statements. Thereafter, the parties would litigate the issues of the defamatory character of the publication and damages. After the first phase of trial, lasting twelve court days, the jury deliberated on the issues of the truth of the statements and actual malice. It found against Coleman on the issue of actual malice, leaving unanswered the question of whether the statements were true. Coleman filed a post-trial motion seeking a new trial. On February 27, 1989 the court denied Coleman’s post-trial motion and entered judgment upon the verdict in favor of the defendants. On appeal, Coleman requests that we consider whether the trial court erred:

I. IN BIFURCATING IN THE TRIAL OF A DEFAMATION CASE THE ISSUES OF FALSITY AND MALICE FROM TRIAL ON THE ISSUES OF DEFAMATION AND DAMAGES?
II. IN EXCLUDING EVIDENCE OF THE PUBLISHERS’ STATE OF MIND REGARDING THE DEFAMATORY CHARACTER OF THE FALSE ARTICLES NOTWITHSTANDING ITS RELEVANCE TO THE ISSUE OF CONSTITUTIONAL MALICE?
III. IN ITS CHARGE TO THE JURY BY INSTRUCTING THE JURY NOT TO CONSIDER MULTIPLE, CUMULATIVE, NEGLIGENT ACTS OF THE DEFENDANTS AS IT RELATED TO THE ISSUE OF MALICE?
IV. IN REFUSING TO GRANT A NEW TRIAL BASED ON THE TRIAL COURT’S BIAS AGAINST THE PLAINTIFF AS EVIDENCED BY THE ENTIRE RECORD?

At issue I, Coleman essentially argues that the court erred by bifurcating the trial into two phases, liability and damages. As an underlying component of this argument and at issue II, Coleman contends that bifurcation of the trial prejudiced him because he was thereby precluded from presenting relevant evidence of the defamatory nature of the Daily News’ statements. We find these contentions to be meritless.

As our distinguished former colleague, the Honorable Gwilym A. Price, Jr., has established, a judge invested with the responsibilities of trial may on his own motion order a separate trial on any claim or issue if the resolution of that claim or issue will expedite the adjudication of other claims. Kaiser v. Meinzer, 272 Pa.Super. 207, 216, 414 A.2d 1080, 1085 (1979), appeal dismissed 498 Pa. 136, 445 A.2d 104 (1982). Rule 213 of the Pennsylvania Rules of Civil Procedure provides in pertinent part:

RULE 213. CONSOLIDATION, SEVERANCE AND TRANSFER OF ACTIONS AND ISSUES. ACTIONS FOR WRONGFUL DEATH AND SURVIVAL ACTIONS
(b) The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues.

Pa.R.C.P. No. 213(b), 42 Pa.C.S.

Coleman contends that the defamatory character of a publication is an issue which cannot be clearly delineated as a liability or a damage issue. He argues that the defamatory character of the publication is inexorably interwoven with both the liability issue and the damage issue in a libel action. He places heavy reliance on Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987) in asserting that bifurcation should be carefully and cautiously applied and be utilized only in a case where prejudice will be avoided. We find nothing inconsistent between the action of the trial judge in the case now before us and that of the trial judge in Stevenson. In that bifurcated products liability action, our supreme court was called upon to review the decision of a trial judge granting a new trial, where the trial court upset a jury finding of liability based upon evidence adduced during the subsequent damage phase of the case.

In Stevenson, our supreme court was called upon to decide whether a jury’s finding of liability — made at the close of the liability phase of a bifurcated proceeding — is unassailable by the trial judge after the damage phase of the trial. Stevenson v. General Motors Corp., 513 Pa. at 415, 521 A.2d at 415. In concluding that it was not unassailable, the Stevenson court affirmed the decision of this court which had, in turn, affirmed the trial judge in granting a new trial. Although the court did express the opinion in a separate part of the decision, Part II, that a trial judge should be alert to the danger that evidence relevant to both issues may be offered at only one-half of the trial, the court did not condemn the trial court for its original decision to bifurcate. It did hold that the trial court’s decision against bifurcation of the new trial was a reasonable exercise of its discretion. Stevenson v. General Motors Corp., 513 Pa. at 423, 521 A.2d at 419. The trial judge did not violate the Stevenson principles in the case now before us.

Coleman also seeks to rely on Rule 224 of the Pennsylvania Rules of Civil Procedure in contending that the trial court improperly refused to permit the jury to consider evidence pertaining to the defamatory nature of the publications. That rule provides:

RULE 224. REGULATION OF ORDER OF PROOF
The court may compel the plaintiff in any action to produce all his evidence upon the question of the defendant’s liability before he calls any witness to testify solely to the extent of the injury or damages. The defendant’s attorney may then move for a non-suit. If the motion is refused, the trial shall proceed. The court may, however allow witnesses to be called out of order if the court deems it wise so to do.

Pa.R.C.P. No. 224, 42 Pa.C.S.

Although Rule 213(b) and Rule 224 each involve bifurcation, their purposes are clearly distinct and involve entirely different procedures. Rule 213(b) applies in cases such as the one here under review where the trial judge orders separate trials of distinct issues and the issues are submitted to the trier of fact — the jury — in stages. Under Rule 213(b), the jury actively deliberates on one or more issues, such as liability, before receiving any of the evidence on other issues, such as damages. Where Rule 224 is invoked, the jury is in no way directly involved. Rule 224 permits the trial court to compel the plaintiff to produce all evidence of the defendant’s liability, at the conclusion of which the defendant may then move for a compulsory non-suit. If the motion is refused, the trial continues before the trier of fact — the jury — without the jury having been called upon to deliberate up to that point. If the motion is granted, the jury is excused without having been called upon to deliberate at all.

Coleman does not direct us to that portion of the record where Rule 224, or the issue of the regulation of the order of proof, was a matter of review before the trial court as required under Pa.R.A.P. 2119(c), (e). There is reference, in the Brief for Appellant, to a portion of the court’s charge, N.T. January 26, 1988 at 9.153 (R.R. Vol. IV at 1684a), which is not implicated by Rule 224. To the extent that Rule 224 may be said to have been applicable in these proceedings, we find no error or abuse, of discretion by the trial judge, and we find that bifurcation was proper for the reasons here set forth.

The court’s decision to bifurcate a trial will not be disturbed absent an abuse of discretion. Sacco v. City of Scranton, 115 Pa.Cmwlth. 512, 517, 540 A.2d 1370, 1372 (1988). Before ordering the separate adjudication of issues, the court should carefully consider the issues raised and the evidence to be presented to determine whether the issues, here liability and damages, are interwoven. Stevenson v. General Motors Corporation, 513 Pa. at 422-423, 521 A.2d at 419. Bifurcation is discouraged in those cases in which evidence relevant to both issues would be excluded in one portion of the trial and would result in prejudice to the objecting party. Id. However, bifurcation is strongly encouraged and represents a reasonable exercise of discretion where the separation of issues facilitates the orderly presentation of evidence and judicial economy, Sacco v. City of Scranton, 115 Pa.Cmwlth. at 517, 540 A.2d at 1373, Swanger v. Pyles, 204 Pa.Super. 72, 203 A.2d 488 (1964), or avoids prejudice, Stevenson v. General Motors Corporation, 513 Pa. at 423, 521 A.2d at 419.

At all times material to this action Coleman was President of the Philadelphia City Council, thus a public figure, and the published remarks related to his performance in office. In order to prevail in his defamation action, Coleman was required to prove by clear and convincing evidence that the Daily News acted with knowledge that the statements were false or recklessly disregarded the truth of the statements, also known as actual malice. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Curran v. Philadelphia Newspapers, Inc., 376 Pa. Super. 508, 546 A.2d 639 (1988).

Clearly, here, bifurcation of trial by focusing on the truth of the statements and the existence of actual malice in the first phase facilitated judicial economy, as the second phase relating to damages was actually avoided. In addition, bifurcation minimized the possibility of jury confusion in discerning what evidence of damage was relevant to the threshold question of whether actual malice existed. As the court suspected, counsel’s feverish argument against bifurcation may have stemmed from a desire to garner sympathy from the jury in establishing liability by use of damage evidence. N.T. dated January 15, 1988 at pp. 4.65-4.66.

It is equally clear that Coleman’s case was not hindered in the least' by the court’s decision to bifurcate. First, Coleman’s contention that as a result of bifurcation he was prevented from introducing evidence of the defamatory character of the objectionable statements is simply untrue. Although the court initially denied Coleman’s attempts to introduce the testimony of several witnesses regarding their knowledge of the defamatory character of the publications, it reversed this decision.

In a discussion between counsel and the court, the court explained to counsel that it initially precluded the evidence because Coleman’s questioning appeared to center around the issue of damages. At that point, counsel conceded that his questioning may have been inarticulate, but argued that he was attempting to elicit this testimony to show that the publisher deviated from the requisite standard of care given the seriousness of the allegations. N.T. dated January 13, 1988 at pp. 50-53. Having considered this clear expression of counsel’s intent, the court then preserved one witness’ testimony, that of an editor, by having him questioned in camera and provided the defense with an opportunity to research the state of the law on the relevance of the defamatory character of a statement to actual malice. N.T. dated January 13, 1988 at pp. 53-67. Later, after being presented with the relevant case law, the court reconsidered its initial ruling and ordered that the editor’s preserved testimony be admitted, as well as all other testimony on this issue. In conjunction with its determination that defamation evidence would be permitted, the court stated:

It appears to me that the in-camera testimony by Mr. Spencer [a Daily News editor] would be admissible, and that the plaintiff would be permitted to call back the local editors of the Daily News, Mr. Stalberg and whoever else. [N.T. dated January 15, 1988 at p. 4.77].
You [Coleman] have won on that point. [N.T. dated January 15, 1988 at p. 4.78].
I am merely saying that Mr. Cramer [Coleman’s counsel] may elicit from his witnesses the knowledge from them that they knew that this article, true or false, because that is the only question, true or false, would be harmful to his reputation. [N.T. dated January 15, 1988 at p. 4.81].

The defamation testimony is the only evidence which arguably could have pertained to both phases of trial. Coleman may not now complain that he was prevented from introducing defamation evidence when the court, acting carefully and prudently to ascertain the state of the law on this issue, preserved the testimony of the editor and permitted Coleman to call or recall any witness through whom Coleman intended to produce this defamation evidence. Not only did Coleman have the benefit of being able to adduce this evidence in proving liability, this evidence would also have been before the jury on the issue of damages. Merely not being permitted to present one’s witnesses in the order desired is not the type of harm which would indicate an abuse of discretion by the court in the face of the obvious benefits to bifurcation. See Sacco v. City of Scranton, 115 Pa.Cmwlth. at 516-517, 540 A.2d at 1373; Swanger v. Pyles, 204 Pa.Super. at 73-75, 203 A.2d at 489-90.

Second, the relevance of this type of testimony under the facts presented in this case is tenuous. Actual malice may be demonstrated through direct evidence such as delving into the thoughts, opinions and conclusions of the publisher, Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 1645, 60 L.Ed.2d 115, 130 (1979), as well as inferentially, through unexplained distortions of the truth, the failure of the publisher to follow established procedures of investigation, the absence of any factual support for the statements, or the absence of any editorial review. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. at 513-514, 546 A.2d at 642. The actual malice inquiry focuses upon whether the publisher in fact entertained serious doubts regarding the truth of the statements. Stickney v. Chester County Communications, LTD., 361 Pa.Super. 166, 172, 522 A.2d 66, 69 (1987) quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Needless conduct is not determined by an objective standard, whether a reasonably prudent person would have published the offensive statements or would have investigated further before publishing. Id. Thus, evidence is relevant on the issue of actual malice only where it is probative of the publishers’ actual knowledge or flagrant disregard for whether the challenged statement is true.

While the failure to investigate a statement’s truth before publication is not of itself sufficient to show actual malice, this court has recognized that where the charges are of a serious nature and no attempt has been made to verify the complained of allegations prior to publication, then actual malice may be imputed to the act of publication. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. at 513-514, 546 A.2d at 642; Stickney, supra. Statements are considered to be defamatory where they tend to affect the reputation of another, lower his esteem in the community, or deter others from associating with him. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. at 522, 546 A.2d at 646. Only in this sense would the defamatory nature of a statement, when introduced to show the serious nature of an accusation which was published absent any investigation, have some probative value. However, this situation is not present in the case at bar. The offensive statements were not made without benefit of investigation but rather were based upon a fairly accurate and presumably well-researched article appearing only days before in the Daily News. As such, this evidence, while possibly probative of the prudence of the publisher’s actions, was not probative of the Daily News’ knowledge or reckless disregard of the truth of the remarks.

At issue III, Coleman complains that the court improperly charged the jury. He suggests that the court’s continual reference to the distinction between carelessness and recklessness and an alleged misstatement on the role of negligence with regard to actual malice gave the jury the impression that they were unable to consider any of the Daily News’ negligent acts. Specifically, Coleman objects to the following portion of the court’s instruction:

I am not suggesting that you can consider negligence on the part of the publishers in deciding whether or not there was constitutional malice.

N.T. dated January 26, 1988 at p. 9.177. In reviewing the sufficiency of a jury charge, we consider the charge in its entirety to determine whether error was committed, and if so, whether Coleman was prejudiced by the error. Reilly v. SEPTA, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985). After reviewing the entire jury charge, we find that Coleman's complaint is meritless.

The charge to the jury clearly and correctly explained the concept of actual malice and properly distinguished it from negligence and carelessness. The reference above is simply a reiteration of the jury’s duty to determine whether the publisher’s acts or omissions satisfy the actual malice standard. Reading the charge as a whole, as we must do, improves Coleman’s position. Immediately preceding and following the complained of statement, the court specifically instructed the jury that they may consider exactly that conduct which Coleman now complains the court instructed could not be considered. The court stated in its comprehensive jury charge:

You can consider if it has been proven in this case, the state of mind of the publishers of this article, if it has been established what their respective states of mind were at the time.
You can consider any clear departures from this publisher’s journalistic procedures. You can consider the lack of prepublication investigation, the use of speculated accusations and the failure to utilize or employ effective editorial review.
You can also consider altered substance of an article by the publishers from an underlying source such as the Manoff or Eisner articles.
You can consider whether there was an attempt to verify false information that was published.
You may consider the publishing of an article which the publishers subjectively realized at the time of the publication could not be true.
In addition, you may consider, either way, whether the article or articles were fabricated by the publishers [or] were the products of the publisher's imagination in considering whether this was constitutional malice.
You may consider whether there was a prompt retraction, whatever that means, or a correction of an error.

N.T. dated January 26,1988 at pp. 9.176-9.178. The court’s point in making the complained of excerpt was not that the publisher’s “negligent” acts could not be considered but rather that these acts must be viewed in the context of constitutional/actual malice and not negligence. This was entirely correct and the jury charge when viewed in its entirety, some fifty-eight pages, does not evidence an error on the part of the court.

At issue IV, Coleman asserts that a new trial should be granted “under the totality of the circumstances and rulings in this case.” He alleges general error with respect to the courts’ rulings on: 1) bifurcation, 2) cross-examination of the parties, 3) the requirement that he prove mental anguish by expert testimony, 4) the “Epps affair”, 5) evidentiary matters, and 6) the jury charge. Coleman’s objections to bifurcation and to the jury charge have been discussed above and need not be addressed further. Coleman makes no specific objection to the court’s evidentiary rulings or its rulings on cross-examination and therefore, these objections are waived. Pa.R.C.P. 227.1(b). In re Estate of Hall, 517 Pa. 115, 137, 535 A.2d 47, 58 (1987). In addition, Coleman’s objections to the court’s requirement that he present expert medical testimony and his objections to the “Epps affair” were not properly briefed for this court pursuant to Pa.R.A.P. 2119(e). Nonetheless, we will briefly address them.

With respect to the expert medical testimony, Coleman could not have been prejudiced by a preliminary ruling relevant only to the damage phase of the case which never occurred.

Next, Coleman’s reference to the Epps affair apparently refers to the testimony of his daughter Stephanie. During trial, Stephanie testified that she was discriminated against in her employment with the court of common pleas, presumably to counter allegations that she received favoritism in being considered for her position. The court, at side bar, expressed outrage at this allegation and both questioned Stephanie’s veracity and gathered information relating to the experiences of other minorities in the court of common pleas. As to the first action by the court, Coleman does not contend that the court’s unfortunate comment was overheard by the jury. However, a reporter did overhear the comment and published an article pertaining to it the next day in the Philadelphia Inquirer. Two copies of the article were found in the jury room. Prompted by Coleman’s request for a mistrial, the court thoroughly polled the jurors who each assured the court that they had no knowledge of the article. Second, the employment information gathered by the court never reached the jury. Thus, while these isolated incidents may have been imprudent, they did not prejudice Coleman. The record does not demonstrate a systematic attempt to prejudice Coleman’s case. In fact, the court when charging the jury emphasized that it was on the side of neither Coleman nor the Daily News and that its trial rulings and discourse with counsel should not be interpreted as reflecting a bias in favor of one party or the other. N.T. dated January 26, 1988 at pp. 9.180-9.181. Accordingly, on the basis of the entire record, a new trial is not justifiable.

Having found no merit to any of the issues raised on appeal, we affirm the order of the court of common pleas denying post-trial motions.

Order affirmed.


source: Caselaw Access Project

author: BECK, Judge: WIEAND, Judge,

license: Public Domain

text:
    570 A.2d 559
    COMMONWEALTH of Pennsylvania v. Gary T. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1989.
    Filed Feb. 22, 1990.

      Michael P. Marryshow, Asst. Public Defender, Stroudsburg, for appellant.
    David W. Skutnik, Asst. Dist. Atty., Effort, for Com., appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   BECK, Judge:

The instant appeal raises the issue of the applicability of 18 Pa.Cons.Stat.Ann. § 110 (Purdon 1983) which sets forth the circumstances under which a prosecution is barred by a former prosecution for a different offense. Since we conclude that section 110 which embodies constitutional double jeopardy principles has no application to this case, we affirm the judgment of sentence.

Appellant Gary Smith sold approximately one pound of marijuana to a state police informant and two state troopers on March 9,1987. This purchase of drugs, along with other information gathered in the investigation, formed the basis for a search warrant application for appellant’s home. The warrant was obtained and executed on March 10, 1987 and resulted in the seizure of cocaine and marijuana. Smith was then arrested and charged with possession and possession with intent to deliver based on the seizure of drugs from his home on March 10. Prior to trial on these charges, Smith successfully challenged the admissibility of the evidence seized pursuant to the search warrant. As a consequence, the Commonwealth dropped the charges against him. Thereafter, Smith was arrested and charged in the instant case based on the “controlled buy” of marijuana which occurred on March 9. He was tried and convicted by the court sitting without a jury and sentenced to a term of imprisonment from which he now appeals.

On appeal Smith asserts that his prosecution for the March 9 offense is barred by the “former prosecution” of the March 10 charges. For the reasons which follow, we find Smith’s claim of error meritless.

Section 110 of the Crimes Code, along with companion enactments which embody settled principles of double jeopardy, provides:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense

18 Pa.Cons.Stat.Ann. § 110 (Purdon 1983) (emphasis added).

Section 109, which is referred to above, defines “acquittal” as follows: “There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction.” 18 Pa.Cons.Stat.Ann. § 109(1) (Purdon 1983).

All parties in this case, including the trial court, have assumed the applicability of Section 110(l)(ii) and have focused their discussion solely on the issue of whether the “subsequent prosecution” was for an offense which arose from the same criminal episode as that of the “former prosecution”. In so doing, the parties have misdirected the inquiry and failed to address the issue which in our view is dispositive of this appeal.

By the very terms of section 110(1) of the statute a “former prosecution” bars a subsequent prosecution only when the former prosecution resulted in an acquittal or a conviction. Section 110(1) provides the threshold requirement and unless it is satisfied, section 110 is inapplicable regardless of the nature of the underlying criminal offenses. Here the trial court granted Smith’s motion to suppress evidence and as a result the Commonwealth chose not to prosecute. This disposition did not result in an “acquittal” nor indeed did it represent any factual determination relating to the guilt or innocence of the accused or relating to the sufficiency of the evidence against him. Plainly, this case falls outside the reach of section 110 by failing to meet the threshold statutory requirements.

While our research has revealed no case in the precise procedural posture as the instant one, language and reasoning from numerous cases support this result. For instance, this court has resolved the issue in the context of whether the Commonwealth is barred from prosecuting a defendant on a charge allegedly arising from the same criminal episode as a prior charge which was dismissed at a preliminary hearing for failure to establish a prima facie case. Relying on the indisputable notion that preliminary proceedings are “not in fact trials” and do not decide the guilt or innocence of the defendant, we have concluded that dismissal of charges at a preliminary hearing will not bar subsequent prosecutions stemming from the same criminal transaction. Thus in Commonwealth v. Smith, 232 Pa.Super. 546, 334 A.2d 741 (1975), charges of receiving stolen property had been dismissed after a preliminary hearing. Subsequently, the Commonwealth filed different charges against the defendants, accusing them of being accessories after the fact. Both sets of charges arose from the theft of the same vehicle. Appellants in Smith argued that both the principles of double jeopardy and the rationale of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated on other grounds, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) prevented the Commonwealth from bringing the charge of accessory after the fact. In an unanimous en banc decision this court rejected the argument. The decision was based on the well-settled, but apparently oft-overlooked, principle that unless the defendant has been subjected to a trial before a trier of facts, considerations which might bar retrial do not come into play.

Since Smith, this principle has been consistently upheld whenever a defendant has sought to avoid prosecution on the basis of a previous disposition which did not subject defendant to the risk of a trial on the merits. See Commonwealth v. Flanders, 247 Pa.Super. 41, 371 A.2d 1316 (1977) (plea of former jeopardy cannot be predicated on the action of an issuing authority at a preliminary hearing); Commonwealth v. Davis, 247 Pa.Super. 450, 372 A.2d 912 (1977) (Commonwealth not barred from prosecuting defendant on charge of neglect to support an illegitimate child even though charges arose from the same criminal episode as prior fornication and bastardy charges which had been dismissed at preliminary hearing). Accord, Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975); Commonwealth v. Garris, 247 Pa.Super. 455, 372 A.2d 914 (1977); Commonwealth ex rel. Dimpter v. Kapp, 266 Pa. Super. 429, 405 A.2d 509 (1979) (18 Pa.C.S.A. § 109 not applicable where former prosecution did not result in acquittal but rather the prior complaint was dismissed on wholly legal grounds).

We emphasize that our holding that section 110 has no applicability to the facts before us is not a technical or mechanical reading of the statute in question. We interpret the statute recognizing that it represents a codification of time-honored double jeopardy principles. The statutory requirement that appellant first demonstrate that he has been subjected to the risk of a trial on the merits is at the very heart of double jeopardy jurisprudence. The United States Supreme Court repeatedly has noted that the “constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense----[because] the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense____”. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957) (emphasis added).

In order to “attempt to impart content to an abstraction” , the Court has found it necessary to define the point at which jeopardy attaches. The United States Supreme Court and the courts of this Commonwealth have consistently held that “jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’ ” Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). Thus, in Serfass, the Supreme Court held that when a criminal prosecution is terminated prior to trial, such as where the trial court had granted the defendant’s motion to dismiss the indictment, the accused cannot claim a double jeopardy violation. The Court stated that “[wjithout risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” Id. at 391-2, 95 S.Ct. at 1064-5. As the Court succinctly noted, it is “fundamental” that “an accused must suffer jeopardy before he can suffer double jeopardy”. Id. at 393, 95 S.Ct. at 1065.

With these principles in mind, it is plain that appellant in the instant case was never in jeopardy in the original prosecution on the March 10 charges. The evidence against him was suppressed due to a technical, wholly legal violation of search warrant requirements and thereafter, due to the loss of this evidence, the prosecution was dismissed. Appellant was not, nor has he ever been, “put to trial” on the question of his guilt or innocence of those charges. The Commonwealth did not have a first “bite at the apple” much less a second. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Under these circumstances, appellant cannot contend that the subsequent prosecution is barred. Since appellant was never subjected to the risk of conviction, there simply was no former prosecution to trigger the application of section 110 or the double jeopardy policies which underlie it.

Judgment of sentence affirmed.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur in the majority’s determination that a Commonwealth nol pros of criminal charges is not an acquittal of the defendant on such charges. See: Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213 (1928). For purposes of applying the provisions of 18 Pa.C.S. § 110, I would agree also with the trial court that the sale of marijuana on March 9, 1987 and the possession of cocaine and marijuana discovered upon execution of a search warrant for appellant’s residence on March 10, 1987 were not part of the same criminal episode.

      . 35 Pa.Cons.Stat.Ann. § 780-113(a)(16) (Purdon Supp.1989) and 35 Pa.Cons.Stat.Ann. § 780-113(a)(30) (Purdon Supp.1989).

      . It is well-settled that an appellate court may affirm the decision of the trial court if there is any basis on the record to support the trial court’s action. This is so even if we rely upon a wholly different rationale from that which the trial court advanced in explaining its conclusion. See, e.g. Commonwealth v. Pacell, 345 Pa.Super. 203, 497 A.2d 1375, 1377 n. 1 (1985); Commonwealth v. Guimento, 341 Pa.Super. 95, 491 A.2d 166 (1985). Here the trial court concluded that “[a]n order of Court suppressing evidence necessary to establish a conviction clearly qualifies as an ‘acquittal’ under f§ 110]". While we hold that this statement is erroneous, the ultimate decision of the trial court, i.e. that the subsequent prosecution is not barred, is correct and it is that judgment which we affirm.

      . In Commonwealth v. Ramirez, 367 Pa.Super. 477, 533 A.2d 116 (1987), this court interpreted the reach of Section 111 of the Crimes Code which applies to prosecutions that are barred by former prosecutions in another jurisdiction. In this context we emphasized that "[a] ‘prosecution’ has been defined as ‘a proceeding instituted ... for the purpose of determining the guilt or innocence of a person charged with crime.'" Id. 533 A.2d at 118 (citation omitted). Furthermore, we noted that;
      ‘‘In both Section 110 and Section 111, our legislature explicitly stated that a former prosecution bars a subsequent prosecution when; ‘the former [first] prosecution resulted in an acquittal or in a conviction ...’ (citation omitted). A prosecution against a defendant, consequently, is not completed, and therefore cannot be a former prosecution,’ until a defendant is acquitted or convicted."

        Id. at 119.

      . "A finding by a committing magistrate that the Commonwealth has failed to establish a prima facie case is not a final determination, such as an acquittal____" Commonwealth v. Cartagena, 482 Pa. 6, 14, 393 A.2d 350, 354 (1978). See also Greco v. Commonwealth, Pennsylvania Board of Probation and Parole, 99 Pa.Cmwlth. 107, 513 A.2d 493, 495 (1986) (preliminary hearing is not a proceeding at which "the guilt or innocence of an accused has been fully litigated and finally determined”.)

      . Prior to the effective date of Section 110 of the Crimes Code, the prohibition against separate, successive trials of charges arising from the same criminal transaction was established by case law in what has become known as the Campana doctrine. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). In a second Campana case known as Commonwealth v. Campana II, 455 Pa. 622, 314 A.2d 854 (1974) decided after the effective date of Section 110, the Supreme Court explained that the case law as established by Campana I was "in harmony with section 110 of our Crimes Code". In addition, the Supreme Court has noted that both the Campana doctrine and the provisions of section 110 serve to protect the same underlying double jeopardy considerations and that "[a]ny treatment of an alleged Campana rule violation as a separate and distinct claim from an asserted section 110 violation is misleading.” Commonwealth v. Hude, 500 Pa. 482, 488, 458 A.2d 177, 180 (1983). See also Commonwealth v. Dozier, 333 Pa.Super. 188, 192 n. 1, 482 A.2d 236, 238 n. 1 (1984).

      . Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975).

      . For cases in this Commonwealth which discuss the attachment of jeopardy see, e.g., Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398, cert. denied, Terry v. Pennsylvania, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987); Commonwealth v. Smith, 232 Pa.Super. 546, 334 A.2d 741 (1975); Commonwealth v. Kern, 294 Pa.Super. 151, 439 A.2d 795 (1982). Recently, the Pennsylvania Supreme Court emphasized: "It is only when the accused must stand before the tribunal where his guilt or innocence hangs in the balance that double jeopardy concerns are appropriate." Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 265-266, 566 A.2d 246, 249 (1989).

      . The record reveals that the motion to suppress was granted because of an apparent violation of the "knock and announce" rule surrounding the execution of search warrants.


author: MELINSON, Judge.

text:
    570 A.2d 563
    COMMONWEALTH of Pennsylvania v. Richard BETHLEHEM, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 8, 1989.
    Filed Dec. 15, 1989.
    Petition for Allowance of Appeal Denied June 11, 1990.

      David Crowley, Asst. Public Defender, Mercer, for appellant.

      W. Jeffrey Yates, Asst. Dist. Atty., Bellefonte, for Com., appellee.
    Before MONTEMURO, MELINSON and HESTER, JJ.
   MELINSON, Judge.

Appellant, Richard Allen Bethlehem, appeals from judgment of sentence imposed following convictions of rape, statutory rape, and involuntary deviate sexual intercourse arising from his sexual abuse of his young niece. Bethlehem contends that this action was brought outside the applicable statute of limitations. Regrettably, appellant is correct and we are constrained to reverse the convictions and discharge appellant.

This appeal presents the following four questions relating to the application of various statute of limitations provisions to the facts of this case.

I. Whether the applicable two and five year statute of limitations periods for the offenses alleged (42 Pa.C.S.A. § 5552 (a & b)) were tolled pursuant to 42 Pa.C.S.A. § 5554(3).
II. Whether the complaint stated the time of the offenses with the “reasonable degree of specificity” required.
III. Whether the Commonwealth established beyond a reasonable doubt that the offenses occurred within the applicable limitations periods.
IV. Whether the trial court erred in failing to instruct the jury with regard to the factual determination that the offenses occurred within the limitations periods.

We shall discuss these interrelated questions, seriatim.

I. Tolling of the Statute of Limitations

Prior to trial, Bethlehem moved to have the complaint dismissed because it alleged offenses outside the applicable statute of limitations. The complaint against Bethlehem was filed June 3, 1987. Though the complaint initially alleged that Bethlehem continued to sexually abuse the victim during family visits to the victim’s former residence after she and her parents moved from Bellefonte, the victim repeatedly testified at the preliminary hearing that the offenses occurred only while she lived in Bellefonte with her parents. The Commonwealth presented no evidence that the assaults continued after the move from Bellefonte. Bethlehem presented uncontradicted evidence that the victim and her family moved from Bellefonte on or before May 17,1982, which would place the assaults outside the applicable limitations periods for the offenses charged. Bethlehem’s motion to dismiss on statute of limitations grounds was denied at the preliminary hearing.

Bethlehem renewed the request for dismissal in pretrial motions, and an evidentiary hearing was conducted during which additional evidence was presented in support of Bethlehem’s dismissal motion. Again, the Commonwealth made no attempt to challenge or cast doubt upon the claim that the victim had moved from Bellefonte prior to May 17, 1982, despite the fact that the complaint in this case was filed, on June 3, 1987, more than five years after May 17, 1982. Rather, the sole argument raised by the Commonwealth was that this Court’s decision in Commonwealth v. Fanneli, held that time elements were not controlling in cases involving minors.

By way of response, counsel for Bethlehem disputed that the case cited stood for the broad proposition urged, and argued that the only way the running of the statute of limitations for crimes against minors would be tolled was when the father or a guardian was the perpetrator, which was not the case here. The Commonwealth made no reply, and in no way attempted to establish that the provisions of 42 Pa.C.S.A. § 5554(3) applied under the facts of this case. The trial court then denied the motion to dismiss the charges, without explanation. (See N.T. 10/15/87 at 2-16).

The failure to grant dismissal of the charges on statute of limitations grounds at the preliminary hearing or pretrial motions stage is inexplicable. The clear and uncontradicted evidence presented, from the victim herself and from wholly unbiased sources, demonstrated that the victim moved from Bellefonte where the offenses were alleged to have occurred more than five years prior to the filing of the complaint in this case. Thus, in the absence of proof that the statute of limitations had been tolled, the longest applicable limitations period had already expired by the time a complaint was filed in this case.

The Commonwealth neither pled nor proved at that juncture that any tolling provision applied. Instead, the Commonwealth relied solely upon its erroneous construction of this Court’s unpublished opinion in Commonwealth v. Fanelli, which was later superceded and replaced by a published opinion of this Court sitting en banc. See Commonwealth v. Fanelli, 377 Pa.Super. 555, 547 A.2d 1201 (1988). Neither of this Court’s opinions in that case purported to render statute of limitations provisions irrelevant or not controlling in cases involving offenses against minors. Rather, Fanelli addressed the separate and distinct issue of how specific the indication of the date of an offense set forth in the criminal complaint needed to be in order to comply with constitutional due process specificity requirements. We are compelled to find that Bethlehem’s statute of limitations defense was valid and the charges should have been dismissed.

The trial court’s acceptance of the Commonwealth’s post-verdict assertions that 42 Pa.C.S.A. § 5554(3) applied to toll the limitations period was erroneous in two fundamental respects. We shall discuss each separately.

First, the law requires that any allegation that the running of a statute of limitations period was tolled by an applicable statutory exception must be made in the complaint itself, or at the latest, a reasonable time before trial. See Commonwealth v. Cruz, 355 Pa.Super. 176, 512 A.2d 1270 (1986); Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981). Review of the record reveals that there was no pre-trial notice, actual or constructive, of the Commonwealth’s intent to claim the statute of limitations had been tolled under 42 Pa.C.S.A. § 5554(3). Indeed, the Commonwealth rested, at both the pre-trial and trial stages of this case, upon its erroneous assertion that limitations periods had been deemed not to be controlling in cases involving crimes against minors. The Commonwealth did not contest Bethlehem’s counsel’s assertion that the “parent or guardian” exception, i.e. 42 Pa.C.S.A. § 5554(3), did not apply. The Commonwealth’s post-verdict claim that proof of the applicability of an exception was adduced at trial comes too late. See Commonwealth v. Cruz, supra, 355 Pa.Superior Ct. at 178 n. 2, 512 A.2d at 1273 n. 2, citing Commonwealth v. Eackles, supra, 428 A.2d at 619.

Second, and perhaps more important, the trial court’s post-verdict basis for applying the exception is unsustainable on its merits. The offenses alleged in the instant case involved sexual assaults by the victim’s uncle during periodic visits to the victim’s parents’ home, while the victim’s parents were at home and in the next room. (See N.T. 10/16/87 at 18-25; see especially N.T. 10/16/87 at 24 (“my mom was doing dishes and my dad was out there listening to music”)). Such facts do not permit application of the tolling provisions of 42 Pa.C.S.A. § 5554(3):

§ 5554. Tolling of statute
Except as provided by section 5553(e) (relating to disposition of proceedings within two years), the period of limitation does not run during any time when:
* * * * * *
(3) a child is under 13 years of age, where the crime involved injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child's parent.

(Emphasis added).

The Commonwealth argues on appeal that because the victim was eight years old, and because she knew Bethlehem as a relative, the tolling provisions of 42 Pa.C.S.A. § 5554(3) apply. The Commonwealth argues further that Section 5554(3) was intended “to toll the statute of limitation for any crime committed against the person of a child under the age of 18.” (Commonwealth Brief at 7, emphasis added). The trial court provided more specific grounds for the application of Section 5554(3) to this case. The trial court held that the victim’s parents had placed their trust in Bethlehem making him responsible for her welfare, and in the alternative, that her parents were negligent themselves and thereby caused her injuries. (Trial Court Opinion at 4-5). Unfortunately, we cannot agree with the trial court that such circumstances provide a basis for applying Section 5554(3).

We do not believe that in the context of this statute the phrase, “person responsible for the child’s welfare,” was intended by the legislature to apply to an uncle visiting the victim’s parents’ home. Without precluding application of this portion of the tolling provision to such a relative under different circumstances, at least when, as here, the parents were at home and in the next room when the sexual assault occurred, it was the parents and not the visiting relative who remained the “person(s) responsible for the child’s welfare” within the meaning of the provision in question. We construe the provision to apply to persons under whose permanent or temporary custody and control the parent(s) or legal guardian(s) have placed a child, in other words, those who stand in loco parentis to the child. See 1 Pa.C.S.A. § 1903(b). The Commonwealth made no showing of such responsibility being vested in Bethlehem at the time of the assaults. Hence, we must conclude that this portion of the tolling statute could not properly be applied to the circumstances of this case.

Likewise, we do not believe that a visiting relative may be deemed to fall within the intended meaning of the phrase, “any individual residing in the same home as the child.” (Emphasis added). “Residing” and “visiting” are distinct terms in common usage, and connote materially different relationships in this context. See 1 Pa.C.S.A. §§ 1903(a), 1903(b). Bethlehem’s frequent visits did not establish residence. Hence, this portion could not properly apply.

Finally, we find no evidence in the record to support a conclusion that the victim’s parents caused the child victim’s injuries by negligently failing to detect and prevent the assaults. There is no indication that any warning signs were ignored. (N.T. 10/16/87 at 25, 36). Rather, Bethlehem used his status as a trusted relative and an adult authority figure as well as a series of promises and bribes to coerce the victim. (N.T. 10/16/87 at 17-25, 31-32). Under such circumstances, the victim’s parents’ failure to detect and prevent the abuse does not constitute negligence on their part.

Clearly, the response of the victim’s parents to the abuse when the victim eventually reported it was inappropriate. The victim’s father struck the victim for failing to report the abuse to him earlier. (N.T. 10/16/87 at 31). Neither parent took and followed through with appropriate steps to bring Bethlehem to justice. (N.T. 10/16/87 at 74). Indeed, the victim’s father actively impeded prosecution of Bethlehem by assaulting a social worker investigating the victim’s report of abuse. (N.T. 10/16/87 at 26). Nonetheless, no further abuse by Bethlehem occurred after the victim first reported the abuse to her parents. (N.T. 10/16/87 at 27).

As we construe Section 5554(3), it is not enough simply to demonstrate that a child victim’s injuries occurred while she was in the care of persons responsible for her welfare. Rather, the limiting language of the provision requires a causal nexus between the negligence or wrongful act of the person(s) responsible for the child’s welfare and the injuries which give rise to the charges at issue. Here, neither negligence nor wrongful conduct by persons responsible for the child victim’s welfare, nor a nexus between such conduct and the injuries giving rise to the charges at issue, were established.

If the legislature had intended the tolling provision to apply to all adult relatives, it could have expressed such an intent without difficulty. Likewise, the legislature could have made the tolling provision applicable to all crimes against children, or particular crimes against children, or as to all or particular crimes committed against children by persons of more than a specified age. The legislature, however, has not chosen any of those courses, and we are not at liberty to set out on them on our own — regardless of how warranted application of such an exception may seem to us under the facts of this case. The legislature’s Statutory Construction Act limits our discretion considerably in this context. See 1 Pa.C.S.A. §§ 1901 et seq. As counsel for Bethlehem has correctly noted, it is the statute of limitations which must be construed in favor of Bethlehem, rather than the exception in favor of the Commonwealth. See Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972); 1 Pa.C.S.A. § 1928(b)(1). Properly construed, the tolling provision of Section 5554(3) did not apply here.

II. Reasonable Specificity Requirement

The Commonwealth’s reliance upon Fanelli, though misguided as to the statute of limitations issue, was appropriate as to the second question, i.e. was the time of the offenses set forth with reasonable specificity? Fanelli stands for the proposition that while due process requires that any offense alleged, including the time of its occurrence, must be set forth in the complaint with “reasonable specificity,” a broader, less definite time frame, within the applicable limitations period, will be deemed “reasonably specific” when the victim is a young child. We note that our decision in Commonwealth v. Allem, 367 Pa.Super. 173, 532 A.2d 845 (1987), provides a clear example of both the continued vitality and the proper application of statutes of limitations in a case involving allegations of a continuing course of sexual abuse of a young victim which made precision with respect to the dates of the occurrence of the alleged abuse unnecessary to meet due process reasonable specificity requirements. 532 A.2d at 849 & nn. 2-3.

The complaint in this case alleged a continuing course of sexually abusive conduct by Bethlehem or a frequent basis when he visited the victim’s parents at their residence in Bellefonte, and after they moved when they visited Bethlehem at the same residence in Bellefonte. Standing by itself, the complaint alleged a continuing course of sexual abuse at frequent, though unspecified, intervals during a two year period. Under the circumstances alleged in the complaint, we find the assertions as to the time of the offenses in the complaint to be reasonably specific. Cf. Commonwealth v. Fanelli, supra. Moreover, the time period at issue was clarified and reduced considerably by the victim’s clear and repeated statements at the preliminary hearing that no sexual abuse occurred after her family moved from Bellefonte. Thus, the aspect of the complaint indicating that the victim was further abused when she and her parents visited Bethlehem at her parents’ former residence was effectively removed from this case prior to trial. Cf. Commonwealth v. Willis, 380 Pa.Super. 555, 568-70, 552 A.2d 682, 688-90 (1988) (the evidence presented in pretrial proceedings considerably reduced the time frame at issue).

III. Sufficiency of the Evidence/Limitations Periods

Next, we consider whether the Commonwealth met its burden of proof on the statute of limitation issues at trial. Under Pennsylvania law, the Commonwealth is required to prove as an element of every criminal offense that an applicable statute of limitations did not bar prosecution. See 18 Pa.C.S.A. § 103; see also Commonwealth v. Fanel li, supra, 547 A.2d at 1207 (Beck, J., concurring). The evidence at trial failed entirely to negate Bethlehem’s statute of limitations defenses.

No evidence was presented to the jury that an applicable exception tolled the statute of limitations. Consequently, it was incumbent upon the Commonwealth to establish that the offenses charged occurred within the applicable two and five year limitations periods set by the legislature. See 42 Pa.C.S.A. § 5552(a & b).

The victim’s testimony on both direct examination and cross-examination indicated that no acts of sexual abuse were committed by Bethlehem after she moved with her family from Bellefonte. Compelling, independent, uncontradicted evidence was presented at trial that the victim and her family had moved from Bellefonte with her parents on or before May 17, 1982. Additionally, the social worker, who initially investigated the victim’s complaint that she was sexually abused by her uncle, testified that she interviewed the victim on June 4, 1982, and that the victim had indicated to her that the last sexual assault had occurred more than a month prior to the interview. (N.T. 10/15/87 at 6, 9, 10). The victim testified that the rape had occurred three to four months prior to the interview with the social worker. (N.T. 10/16/87 at 33-34). Considered in context, there was simply no credible evidence presented at trial to indicate that any act of sexual abuse was committed by Bethlehem on or after June 2, 1982, which was the outside limit of the longest untolled limitation period (five years) applicable to the offenses charged in the June 3, 1987 complaint.

IV. Adequacy of Jury Instructions/Limitations Issues

Our resolution of the first three questions renders the fourth moot. Nonetheless, in order to provide full guidance to the trial court as to the proper treatment of such limitations defenses, we note our further determination that a new trial would have been required on the basis of inadequate instructions on the limitations issues, had sufficient evidence been presented on the limitations issue to sustain the convictions.

When a statute of limitations defense is raised, as here, the trial court must instruct the jury with sufficient clarity for the jury to know what must be proved to meet a statutory exception claimed by the Commonwealth, and what cut-off date must apply to each offense if the limitations period is deemed not to be tolled. This is so, because negation of any statute of limitations defense is an element of every crime, and because the trial court is required in every case to elucidate the law and clarify the issues to be decided, so that the jury may know what questions they are to resolve. See Commonwealth v. Fanelli, supra (negation of limitations defense is an element of the crime charged); Commonwealth v. Alvin, 357 Pa.Super. 509, 519, 516 A.2d 376, 381 (1986) (the trial court is required to elucidate the law and clarify the issues to be decided by the jury).

In this case, following the initial charge to the jury which made no reference whatsoever to the time of the occurrence of the offenses or Bethlehem’s statute of livitations defense, counsel for Bethlehem promptly requested additional instructions in accordance with Pa.R.Crim.P. 1119(b), and specifically requested that the jury be asked to determine whether the sexual abuse alleged occurred before, on, or after June 2, 1982. This request was denied. Instead, the trial court gave the following additional instruction:

THE COURT: Ladies and gentlemen, the information ... alleges the crime was committed between January of ’82 and June of ’82, you’re not bound by the date alleged in the indictment. It is not an essential element of the crime charged. You may find the defendant guilty if you’re satisfied beyond a reasonable doubt that he committed the crime charged in the indictment, even though you’re not satisfied that that he committed it on the particular date alleged in the indictment.

(N.T. 10/16/87 at 91). This instruction failed to adequately instruct the jury as to the factual determinations which the jury was required to make regarding the statute of limitations issues presented. Cf. Commonwealth v. Alvin, supra. Indeed, it urged them, in effect, to ignore the statute of limitations issues altogether. This was reversible error.

Conclusion

The law of the Commonwealth regarding the limitation of criminal actions, and a lengthy delay in bringing these charges after the child victim’s reports to authorities, combine to require Bethlehem’s release. Judgment of sentence is vacated, the charges are dismissed, and Bethlehem is discharged.

      . We note that there is a fundamental difference between knowledge of the existence of a statutory provision and receipt of notice that the prosecution will seek application of a given provision in a particular case with sufficient time prior to trial to prepare to challenge application of the provision. The former, but not the latter, existed here; and therein lies the defect noted above.

      . Here, as in many cases of sexual abuse, the victim neither cried out nor immediately reported the incidents. Cf. Commonwealth v. Slocum, 384 Pa.Super. 428, 436, & n. 4, 559 A.2d 50, 54 & n. 4 (1989) (noting authorities).

      . We note that Judge Beck aptly notes in Fanetti that the legislature’s decision, to make the negation of any limitations claim an element of each criminal offense rather than requiring the defendant to prove a limitation as an affirmative defense, or requiring the Commonwealth to disprove any limitations claim by a preponderance of the evidence, was a policy choice, not mandated by the constitution.

      . The victim did testify that she was eight years old when the abuse occurred. She was born November 25, 1974, and did not turn eight years of age until November 25, 1982. However, as uncontradicted evidence established that she had already reported the past abuse by June 4, 1982, the victim’s isolated remark must simply be rejected as an innocent misstatement. She was in fact seven and one half years old at the time in question. We note that the victim conceded at trial that she dated the events by reference to when she lived in Bellefonte, and not by any specific memory of the date of any incident, or her age at the time of the incidents. (See N.T. 10/16/87 at 29-31, 38-40; see also N.T. 6/10/87 at 10).


author: WIEAND, Judge:

text:
    570 A.2d 569
    James L. KESSLER, Individually and Dolores M. Kessler, Individually and James L. Kessler, William J. Levine, and Maurice E. Rapp, Individually, and t/a KLR Associates, a Pennsylvania partnership v. OLD GUARD MUTUAL INSURANCE COMPANY and Harleysville Mutual Insurance Co., Appellants, v. Duane L. LABAR and Labar’s Insurance Agency.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1989.
    Filed Feb. 27, 1990.

      Kathie D. King, Philadelphia, for appellants.
    Thomas J. Maloney, Bethlehem, for Kessler, Levine and Rapp and t/a KLR Associates, appellees.
    Theresa Hogan, Easton, for James Kessler and Dolores Kessler, appellees.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

The issue in this appeal is whether insureds who have recovered a final judgment against their fire insurance carriers can refuse to satisfy the judgment unless the carriers pay them pre-judgment and post-judgment interest in addition to the amount of the judgment. This issue was submitted to the trial court in a separate action for declaratory judgment and was decided in favor of the insureds. We hold that the plaintiff insureds could properly require the insurer-defendants to pay post-judgment interest from the date of the verdict but that the plaintiffs could not refuse to satisfy the judgment merely because the insurers did not tender pre-judgment interest.

On September 2, 1981, a fire destroyed a commercial office and warehouse facility located at 420 Applegate Avenue, Pen Argyl, Northampton County. The real estate was owned by James L. Kessler and Dolores M. Kessler, but it was subject to an agreement of sale in favor of KLR Associates, a partnership which had been formed by James L. Kessler, William J. Levine and Maurice E. Rapp. Because of this sale, two contracts of insurance were in effect and provided coverage on the date of the fire. Old Guard Mutual Insurance Company had issued a policy of fire insurance to the sellers in the amount of $120,000; and Harleysville Mutual Insurance Company had issued a binder to the buyers in the amount of $200,000. A separate binder had been issued to the buyers by Harleysville and provided coverage for the contents in an amount not to exceed $80,000.

Both insurers denied liability, contending that the fire had been caused by or at the instance of the insureds. Thereafter, an action was filed by the insureds to recover the amount of their fire loss. At trial the parties stipulated that the replacement cost of the real estate improvements was $318,000. Despite this stipulation, the jury, on June 2, 1983, returned a verdict in favor of the insureds for $74,000, representing a loss of $50,000 to the real estate and $24,000 to business personalty. The amount of the verdict was thereafter tendered by the insurers and rejected by the insureds, who filed post-trial motions. Because of the stipulation regarding replacement cost, the trial court, on December 13,1983, granted the insureds’ motion for judgment n.o.v.; and, on January 6, 1984, judgment was entered in favor of the insureds for $342,000. This was based upon damages to real estate in the amount of $318,000, as stipulated by the parties at trial, and damages to personalty in the amount of $24,000, as determined by the jury. The judgment was affirmed on appeal by the Superior Court. See: Kessler, J v. Old Guard, 351 Pa.Super. 642, 504 A.2d 366 (1985). The Supreme Court granted allocatur, but the appeal was subsequently dismissed as having been improperly granted. See: Kessler, J v. Old Guard, 517 Pa. 82, 534 A.2d 768 (1987).

Thereafter, the insurers offered to pay the principal amount of the judgment, plus post-judgment interest on the amount of $268,000. They contended, however, that interest was not payable on the amount of $74,000 because this sum had been tendered following the return of the jury’s verdict. This was unsatisfactory to the insureds, who claimed post-judgment interest on the full amount of the judgment. The insureds also made claim for pre-judgment interest on $342,000 from the date of the fire until the entry of judgment. Pursuant to agreement, Harleysville thereafter paid to KLR Associates the sum of $262,950, and Old Guard made a payment to the Kesslers in the amount of $143,370. These payments represented principal and interest in the total amount for which the insurers conceded liability. The plaintiffs’ right to be paid additional interest was reserved for future litigation.

On August 22, 1988, the insureds filed a petition for declaratory judgment to determine the amount of additional interest, if any, which they were entitled to recover. The trial court held that they were entitled to be paid interest at the rate of six (6%) percent on $342,000, the full amount of the judgment, from the date of the fire on September 2, 1981, until the entry of judgment on January 6, 1984. The court also held that the insureds were entitled to post-judgment interest on the full amount of the judgment from the date of the judgment until payment. Because post-judgment interest had already been paid on $268,000, however, the amount of unpaid, post-judgment interest was to be calculated on the sum of $74,000. The insurers appealed.

“The general rule is that a plaintiff is entitled to interest on a judgment from the date of the verdict.” Sands v. Pennsylvania Insurance Guaranty Association, 283 Pa.Super. 217, 227, 423 A.2d 1224, 1229 (1980). See: 42 Pa.C.S. § 8101. “[F]or purposes of computing interest, judgment and verdict are synonymous, and the date from which interest accrues is the date of verdict, not the date judgment is finally entered.” Incollingo v. Ewing, 474 Pa. 527, 537, 379 A.2d 79, 84 (1977).

In the instant case, the jury’s verdict was entered on June 2, 1983, in the amount of $74,000. The amount of the verdict, however, was incorrect. The parties had stipulated that the cost of replacing real estate improvements was $318,000. The jury found that personal property, having a value of $24,000, had also been lost. Therefore, on motion of the plaintiff-insureds, the trial court caused judgment n.o.v. to be entered in their favor in the correct amount of $342,000. The jury having found that the plaintiff-insureds were entitled to recover and the court having determined, consistently with the parties’ stipulation, that the correct amount of loss was $342,000, post-judgment interest at the rate of six (6%) percent per annum was payable thereon from the date of the verdict.

Our holding is supported by trial court decisions which have held uniformly that in personal injury actions in which the amount of the verdict is reduced by remittitur, the interest begins to run on the reduced amount from the date of the original verdict. See: Prisco v. North American Furniture Co., 19 Pa.D. & C.3d 365 (Lackawanna 1980); Logue v. Potts Mfg. Co., 4 Pa.D. & C.2d 143 (Cumberland 1955). It would seem to follow logically that where the amount of a verdict has been corrected upward by the trial court to reflect the correct amount due, interest should begin to run on the correct amount from the date of the verdict. This is particularly so where, as here, the amount is increased to reflect the parties’ stipulation regarding the amount owed.

We conclude, therefore, that the plaintiff-insureds are entitled to recover post-judgment interest calculated on the amount of $342,000 from June 2, 1983, the date of the verdict, until the date of payment, reduced by the amount of post-judgment interest already paid. The running of interest was not tolled by the insurance companies’ offer to pay the amount of the verdict returned by the jury. The amount of this verdict, as we have seen, was incorrect; it was inconsistent with the stipulation of the parties regarding the amount of the fire loss. Interest is intended to compensate a party for money which is used or detained by another. See: Black’s Law Dictionary (5th ed. 1979). The amount detained and used by the insurance companies in this case was $342,000, the amount which the insureds were entitled to recover pursuant to their contracts of insurance.

The insurers’ offer to pay $74,000 did not toll the running of interest on that amount. Although a sufficient tender may stop the running of interest, the offer in the instant case was insufficient for that purpose. In the first place, the offer did not include interest on the verdict to the date on which it was made. See: Gold and Co., Inc. v. Northeast Theater Corp., 281 Pa.Super. 69, 77, 421 A.2d 1151, 1155 (1980). Secondly, the offer to pay was not unconditional; it was conditional upon the plaintiff-insureds surrendering the balance of their claim. Because the amount of the tender was inadequate, it could properly be rejected. 37 P.L.E. Tender § 1 (1961); Pitonyak v. Helm, 59 Pa.D. & C.2d 257 (Armstrong 1972). Finally, the insurers made no effort to pay the sum into court. Instead, they retained possession of the moneys and had the use thereof. See: Gold and Co., Inc. v. Northeast Theater Corp., supra. In short, the insurers did not make an unconditional tender of the amount due but merely an offer to settle a disputed claim. When the plaintiff-insureds rejected the offer to settle they did not thereby forfeit the right to be paid post-judgment interest on the amount offered.

The judgment entered by the trial court in favor of the plaintiff-insureds after the first trial did not include prejudgment interest. The court’s failure to award interest was not objected to in the trial court or on appeal. There was no effort made to amend the judgment in the trial court, and the plaintiff-insureds did not appeal from the amount of the judgment entered by the trial court. The judgment entered by the trial court was affirmed on appeal. When the insurers attempted to pay the judgment, however, the plaintiff-insureds demanded pre-judgment interest.

As a general rule, the right to pre-judgment interest on money owing upon contract is a legal right. Fernán dez v. Levin, 519 Pa. 375, 379, 548 A.2d 1191, 1193 (1988). If the breach of contract consists of a failure to pay a definite sum in money, interest is recoverable from the time of performance on the amount due. Restatement (Second) of Contracts § 354(1). Where recoverable, pre-judgment interest may be added to a jury’s verdict by the trial court. See: Commonwealth to the Use of Walters Tire Service, Inc. v. National Union Fire Insurance Co., 434 Pa. 235, 242, 252 A.2d 593, 596 (1969); Verner v. Shaffer, 347 Pa.Super. 206, 211, 500 A.2d 479, 480 (1985). Pre-judgment interest may also be added to a judgment after an appeal therefrom has been taken. Metropolitan Edison Co. v. Old Home Manor, 334 Pa.Super. 25, 482 A.2d 1062 (1984). See also: Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980). It has also been held that interest may be added, even after thirty days have expired following the judgment, where no appeal from the judgment has been taken. Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983). Its computation is a “simple clerical matter based upon dates and amounts appearing on the face of the record.” Metropolitan Edison Co. v. Old Home Manor, supra 334 Pa.Super. at 31, 482 A.2d at 1065, quoting Fish v. Gosnell, supra 316 Pa.Super. at 584-585, 463 A.2d at 1052.

In the instant case, however, pre-judgment interest was not added to the jury’s verdict, and the judgment entered by the trial court did not contain interest. The judgment, as already observed, has never been amended to include prejudgment interest. No request to amend the judgment to include pre-judgment interest was ever made to the trial court or to a reviewing court. The judgment, therefore, was a final determination of the amount owed by the insurers to their insureds.

The law does not permit the owner of a single or entire cause of action to divide or split that cause so as to make it the subject of several actions. 46 Am.Jur.2d Judgments § 405. See: Consolidated Coal Co. v. District 5, United Mine Workers of America, 336 Pa.Super. 354, 364-365, 485 A.2d 1118, 1123 (1984). The doctrine of res judicata

is a judicial creation aimed at preventing a multiplicity of suits. It protects a party from the vexation of having to defend itself against a claim for which a final judgment has already been entered. Furthermore, it serves the public interest by keeping the courts clear of disputes that have been decisively resolved. But as a matter of fairness to the party which believes it has a valid claim, the doctrine is not applied unless there in fact was a previous action in which the party did present, or had the opportunity to present, its claim.

Id., 336 Pa.Superior Ct. at 362, 485 A.2d at 1122.

Claims for interest are ancillary to and part of a substantive cause of action. Franklin Decorators, Inc. v. Kalson, 330 Pa.Super. 140, 143, 479 A.2d 3, 4 (1984); Goldberg v. Goldberg, 306 Pa.Super. 504, 452 A.2d 838 (1982). “When a valid and final personal judgment is rendered in favor of the plaintiff, the plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment.” Restatement (Second) of Judgments § 18. After the plaintiff recovers a final judgment, his original claim is extinguished and rights upon the judgment are substituted for it. “The plaintiffs original claim is said to be ‘merged’ in the judgment.” Restatement (Second) of Judgments § 18 comment a. Thus, the finality of a judgment extends not only to matters actually determined but also to matters which could properly have been raised and determined therein. 46 Am.Jur.2d Judgments § 417.

In the instant case, the plaintiff-insureds made no attempt in the prior action to amend the judgment, which had been entered by the trial court and affirmed on appeal, to include pre-judgment interest. In the prior action, therefore, the claim for pre-judgment interest had been waived. The judgment obtained in that action is now final, not only as to matters determined therein but also as to matters which might have been determined. The plaintiffs’ cause of action to recover insurance proceeds, including their claim for pre-judgment interest, has merged in the final judgment. A separate action to recover pre-judgment interest cannot be maintained; the claim for pre-judgment interest has been extinguished. The plaintiffs’ rights are now determined by the judgment which it recovered in the original action.

We conclude, therefore, that the appellant insurers were entitled to have the judgment against them satisfied upon payment of the principal amount of $342,000, plus post-judgment interest thereon at the rate of six (6%) percent per annum from the date of the verdict. The plaintiffs were not entitled to require payment, in addition, of pre-judgment interest. This claim had merged in the final judgment.

Reversed and remanded for the entry of an adjudication in accordance with this opinion. Jurisdiction is not retained.

      . The statute provides as follows:
      Except as otherwise provided by another statute, a judgment for a specific sum of money shall bear interest at the lawful rate from the date of the verdict or award, or from the date of the judgment, if the judgment is not entered upon a verdict or award.