author: DEL SOLE, Judge.

text:
    682 A.2d 323
    COMMONWEALTH of Pennsylvania v. Franklin D. CRAWFORD, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1996.
    Filed July 30, 1996.
    Reargument Denied Oct. 11, 1996.

      Preston T. Younkins, Kittanning, for appellant.
    Bradley K. Hellein, Assistant District Attorney, Kittanning, for Commonwealth, appellee.
    Before DEL SOLE, HUDOCK and BROSKY, JJ.
   DEL SOLE, Judge.

Following a jury trial and conviction, Franklin D. Crawford appeals from the judgment of sentence imposed for murder in the second degree. He was sentenced to a term of incarceration of not less than 10 nor more than 20 years. Post-sentencing motions were filed and denied. We reverse and remand.

The facts of this case were summarized by the trial court as follows:

The Commonwealth’s chief witness was one John Reed. Mr. Reed testified that on October 21 and 22, 1971, when he was 17 years old, he saw the Defendant and the victim, Pearl Altman, (also known as Pearl Cravener) together on a park bench along the Allegheny River in the Borough of Kittanning. Reed bummed a cigarette from Pearl Altman who told him she was afraid of the Defendant, (Transcript of Trial p. 60). Reed also testified that the Defendant told him if she don’t give me what I want, I’m going to kill the bitch. (Transcript of Trial p. 61). Reed further testified that a short time later he again came upon the couple near a flood control dam on the river, (Transcript of Trial p. 72). At this time the victim was sitting on her rear with her eyes real big. The Defendant was sitting or squatting over the victim and jumped up when Reed approached, (Transcript of Trial p. 76). Reed testified he ran from the scene but turned and looked back to see the Defendant throwing Pearl Altman into the river, (Transcript of Trial p. 78-79).
The -witness never reported his observations until some 20 or 21 years later. He testified he never thought about the incident in the intervening years and didn’t even know it existed. (Transcript of Trial pp. 83, 92, 119). In 1990 or 1991 his memory of the event was triggered when he saw a girl in a market who he thought was Pearl Cravener, (Transcript of Trial p. 83). Later his memory of the event returned to the point that he told his wife and a law enforcement officer named Daryl who referred him to state police officer James Dreyer, (Transcript of Trial p. 91).
The Commonwealth introduced other evidence which corroborated parts of Reed’s testimony. His testimony, however, was the only evidence linking the Defendant to Ms. Altman’s death.

(Trial ct. op. filed 7-27-95 at 1-2).

Appellant submits that the trial court erred by excluding the testimony of Dr. Himmelhoch, a psychiatrist. Appellant filed a Motion in Limine to present the testimony of Dr. Himmelhoch who examined Mr. Reed to assess the nature and likelihood of his revived “repressed” memory. In his report, Dr. Himmelhoch stated that the following criteria must be present in part or in full to determine whether the memory is an accurate recovered memory rather than psychiatric confabulations, hallucinations and/or lies: 1) the truthfulness of the memory is in direct proportion to the ability of the person to remember it accurately and in detail; 2) the presence of a history of alcohol and/or drug abuse significantly detracts from reliability and adds the possibility of chemically induced memories; 3) repressed memories always exact a psychological price in terms of interval psychopathology i.e. usually anxiety symptoms such as panic attacks, social anxiety or hysterical conversions; 4) all verified cases of long-term repressed memories more than ten years are associated with massive, longer term psychic trauma such as the Holocaust and the Buffalo Creek Dam disaster; they do not occur very often after a single acute traumatic event; 5) the presence of learning disabilities and/or a low IQ strongly decreases the likelihood that returned, repressed memories are accurate; 6) character structures that are simple and impressionable are much more likely to serve as a basis for a simple, if earnest person, to become entangled in triggered ideas and to elaborate extensively.

Dr. Himmelhoch remarked that Mr. Reed admits that his everyday operating memory is very weak, and he has abused alcohol and psychedelic drugs to a degree which would disturb his memory and could cause hallucinatory activity once he became convinced of a mistaken belief. The doctor further opined that Mr. Reed has at best a borderline IQ, he experienced learning disabilities at school, and during the eighteen to twenty-two year interval when this memory was suppressed, he did not experience a significant psychiatric symptom. He also observed that Mr. Reed’s character structure significantly erodes the reliability of a returned memory because he is an open and earnest person which generates a naive impressionability that would be vulnerable to repressed fantasies and that he would take the fantasies seriously. Dr. Himmelhoch concluded that Mr. Reed’s repressed memory could not be considered accurate to any degree likely to obviate reasonable doubt.

The admissibility of expert testimony is within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. Commonwealth v. Petrovich, 538 Pa. 369, 648 A.2d 771 (1994). Expert opinion testimony is appropriate only where the subject matter is beyond the knowledge, information or skill possessed by the ordinary juror. Commonwealth v. Montavo, 439 Pa.Super. 216, 653 A.2d 700, appeal denied, 541 Pa. 636, 663 A.2d 689 (1995).

Matters of common knowledge may not be the subject of expert testimony. Further, when the matter can be described to the jury and the evidence evaluated by the jury without the assistance of one claiming to possess special expertise, expert testimony is inadmissible. Although an expert witness may testify to an ultimate issue of fact, such testimony should be permitted only in those instances where the admission will not cause confusion or prejudice. Significantly, expert testimony should not invite the jury to abdicate its responsibility to ascertain and assess the facts and, instead, defer to the expert’s opinion. (Citations omitted).

Montavo, 439 Pa.Super. 216, 653 A.2d at 705.

The trial court excluded Dr. Himmelhoch’s testimony ruling that it bore directly on Mr. Reed’s credibility, and, as such, it would have been an impermissible encroachment on the function of the jury. The trial court relied upon several supreme court cases which essentially hold that psychiatric testimony or other expert testimony concerning the credibility of witnesses is inadmissible. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) (Expert testimony as to the credibility of eight year old children who claim to have been objects of sexual abuse was prejudicial and inadmissible in prosecution for statutory rape and corruption of a minor, where the prosecution relied primarily upon perceived veracity of the victim to establish its case); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) (Expert testimony concerning effect of “rape trauma syndrome” on victim’s failure to identify perpetrator two weeks after attack because of acute phase of syndrome making ordinary functions difficult, and on identification over four years later because of a flashback, improperly enhanced victim’s credibility in eyes of jury, and was inadmissible); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992) (In prosecution for sexual assault of defendant’s step-daughter, expert should not have been permitted to explain why sexually abused children would delay reporting assault, might give incomplete details, and might be unable to recall dates and times of assault, as these matters are within the common knowledge of the jurors and permitting the testimony would infringe upon the jury’s right to determine credibility); and Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993) (Trial court properly excluded expert opinion offered to attack the credibility of the victim because the expert’s assessment that the victim’s identification of defendant would be suspect due to stress of attack would have provided unwarranted appearance of authority on subject of credibility which is for the juror to determine). We also realize that an expert cannot be offered to testify that the complaining witness in a particular case exhibits behavior that is consistent with the behavior patterns of victims in a certain class as this would amount to an expert assessment of the truthfulness of the witness, improperly invading the province of the jury. Gallagher, supra; Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988); Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988); Commonwealth v. Ferguson, 377 Pa.Super. 246, 546 A.2d 1249 (1988).

Although we agree with the trial court’s analysis that an expert’s opinion cannot be offered to attack or bolster the credibility of a witness [Commonwealth v. Spence, supra], the case sub judice is not about attacking the credibility of the Commonwealth’s witness. In this case, we are concerned with the reliability of the unique phenomena of repressed memory revived which is not ordinarily within the common knowledge of the jury. The trial court, by allowing Mr. Reed to testify for the Commonwealth, implicitly accepted the viability of the return of a repressed memory after approximately twenty years. In fact, Mr. Reed testified that not only did he not think about the events for twenty years, he did not even know that the memory existed until he saw the girl in the market whom he thought was the murder victim.

In the instant case, Appellant contends that the proposed expert psychiatric testimony would help the jury to evaluate the testimony of the Commonwealth’s star witness who claims to have recovered a repressed memory of seeing Appellant murder the victim. Appellant submits that the information provided by Dr. Himmelhoch would not be within the “ordinary training, knowledge, intelligence and experience” of the average juror. We agree.

The average juror understands the imperfections of the human memory and how it can be affected in the regular course of experience. Unquestionably, it is within the ordinary knowledge, intelligence and experience of jurors to evaluate the accuracy of the memory and the credibility of a person testifying.

The memory can be divided into three stages: perception, retention, and retrieval. At each stage, a number of factors may inject error into a person’s memory. The perception stage consists of a person experiencing an event which is then committed to memory. In this stage, elements such as time of exposure, familiarity with the subject matter, and stressfulness of the event may affect the accuracy of the resulting memory.

The retention phase of the memory process occurs following a critical event, when some information is stored in the memory, and time passes. At this phase, a person is often exposed to new information which can influence the subject’s recollection of past events. Studies show that changes in reports as a result of postevent information is easy to induce. In some cases, people have reported objects that never existed due to information received after perception of an event.

The third phase of the memory process is the retrieval of the memory. During this phase, error may be introduced into the memory due to the environment in which the memory is retrieved, the expectations created in the person’s mind, the techniques used to retrieve the memory or the persons present. For example, a person may see a therapist who specializes in childhood sexual abuse and the person may form assumptions about what is expected, or the therapist may engage in counseling with a bias towards recovering memories of childhood sexual abuse.

The idea of a repressed memory is not a subject with which the jury would normally be familiar. “The general theory of repression holds that when an event occurs which is too shocking for the conscious mind to handle, the memory of the event is forced into the unconscious where it becomes inaccessible. The memory may stay in the recesses of the unconscious for many years, or perhaps forever, but may at some point rise up into the conscious mind.” Among psychologists, however, repressed memory syndrome is widely debated and many are critical of the theory. The problem with the theory of repression is that controlled laboratory experiments cannot ethically be conducted due to the traumatic nature of the circumstances thought to induce repression; therefore, without scientific proof to substantiate the theory, the subject will continue to be questioned.

The perception phase of a repressed memory is similar to that of a normal memory, but not much is known about the retention or retrieval phases of a repressed memory even after sixty years of research. With respect to the retention stage of a repressed memory, little is known about how and where the repressed memory is stored. It is expected that repressed memories, like traditional memories, would be affected by new inputs because the recalled event occurred such a long time ago, and the evidence shows that as time passes the memory becomes malleable and susceptible to new information. Because repressed memories are not consciously rehearsed like normal memories, they are clearly different. Rehearsal provides a person with the opportunity to keep a memory alive, and, when people think back in time on some previous childhood scene, the memory becomes stronger. A repressed memory is not stored in that way.

Repressed memories are likely to be influenced in the retrieval stage as well. If a repressed memory is recovered after twenty or thirty years, it is more prone to new inputs, suggestive questioning and other sources of new information. Until more is learned regarding the vulnerability of repressed memories, revived repressed memories, especially those recovered by suggestive therapeutic techniques, should be viewed with skepticism.

In State of New Hampshire v. Morahan, 1995 WL 378571 (N.H.Super., filed May 23, 1995), the New Hampshire superior court addressed the issue of the admissibility of testimony of sexual assault victims who claim to have recovered the memories of the assaults through psychotherapy. The court held that the testimony of the victims of their memories of assault would not be admitted at trial because the phenomenon of memory repression, and the process of therapy used in the cases to recover the memory, have not gained general acceptance in the field of psychology and are not scientifically reliable. Even though we are not considering the admissibility of the repressed victim’s testimony here, the Morahan court expressed several relevant points in its opinion. The court stated:

[T]he very concept of a “repressed” memory, that is, that a person can experience a traumatic event, and have no memory of it whatsoever for several years, transcends human experience. There is nothing in our development as human beings which enables us to empirically accept the phenomenon, or to evaluate its accuracy or the credibility of the person “recovering” the memory. The memory and the narration of it are severed from all the ordinary human processes by which memory is commonly understood. To argue that a jury could consider such a phenomenon, evaluate it and draw conclusions as to its accuracy or credibility, without the aid of expert testimony is disingenuous to say the least.

Morahan, supra.

Sixteen states allow prosecutions for child sexual abuse based upon repressed memories. It has been suggested that in states where criminal prosecutions based upon a revived repressed memory are permitted, a rule requiring the admission of expert testimony on the reliability of repressed memories should be espoused for several reasons:

Primarily, expert psychological testimony will impart to a jury or factfinder the relevant scientific information needed to make a proper evaluation of the memory evidence introduced by the State, as well as provide insight into the particular facts of the case at hand. Secondly, while cross-examination is a crucial tool for effectively litigating issues and bringing out facts in the criminal trial, it will not adequately reveal and explore the relevant empirical psychological issues inherent in any prosecution based upon repressed memory. Likewise, in the absence of expert testimony, a defense attorney’s closing argument will not be able to effectively overcome possible juror misconceptions about the reliability of repressed memories if she is not able to present scientific evidence on the subject. Finally, although a jury instruction may be able to focus the jury’s deliberation on the issue of the reliability of the victim’s repressed memories, it would not provide data to help jurors evaluate the value of the crucial evidence. Without expert testimony on repressed memories, jurors will be denied the opportunity for the best possible understanding of the critical issue of their reliability.

The expert in a criminal prosecution involving repressed memory revived could testify to several critical points for the jury. The expert could initially review the literature and scientific history on repressed memories. The expert could explain that little is known about the repression of memories, their retrieval, and that many experts disagree as to their actual existence and the authenticity of the repressed memory once it is retrieved. The expert should also generally discuss the science of memory, and state an opinion with respect to the external influences on repressed memories and the factors which may introduce error into repressed memories. Another aspect that an expert could discuss is the relationship that exists between the confidence of a witness in the accuracy of the memory and the factual precision of that memory. Empirical data could be introduced to illustrate that, at times, a witness can be extremely confident about inaccurate memories, and caution the jury accordingly that a confident witness is not always an accurate one. The expert could also examine the circumstances surrounding the recovery of the repressed memory and explain how retrieval techniques may influence the revived memory.

Ordinarily, prior to admitting the expert testimony in a particular area, it must be determined that the subject about which the expert would testify has been “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Dunkle, 529 Pa. at 173, 602 A.2d at 832, citing, Commonwealth v. Nazarovitch, 496 Pa. 97, 101, 436 A.2d 170, 172 (1981), quoting, Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (D.C.1923) (the so-called “Frye standard”). Instantly, however, we do not reach the Frye test because by the trial court’s allowing the Commonwealth witness to testify about the recovered repressed memory, the court, in effect, recognized the validity of that condition. The only issue we are concerned with is whether the defense expert should have been excluded once the Commonwealth’s witness testified to the recalled repressed memory.

The trial court initially should have analyzed whether, in Pennsylvania, the admission of the revived repressed memory testimony was appropriate. But, since the court failed to undertake such an analysis and accepted the witnesses’ testimony, the defense expert should have been permitted to explain the concept of a revived repressed memory to the jury. Expert testimony was necessary considering the fact that the theory of repressed memory revived is a concept not within the common experience of people and continues to be vigorously debated in the field of psychology. The expert could have explained to the jurors how the memory functions and stores information, the influences on memory, the definition of repressed memory revived, the disagreement among psychologist as to the authenticity of recovered repressed memories, and the reliability of repressed memories, without commenting on the credibility of the Commonwealth’s witness.

We conclude that since the trial court admitted Mr. Reed’s testimony of his revived repressed memory, the trial court erred by excluding the testimony of Dr. Himmelhoch regarding the reliability of revived repressed memories. With Appellant’s freedom in jeopardy, scientific evidence which could have enlightened the jury as to the reliability of recovered repressed memories should have been introduced. Appellant was entitled to a fair trial and he did not receive one in this instance.

Therefore, we reverse the judgment and remand for a new trial consistent with this decision. Jurisdiction relinquished.

      . The Penal Code was in effect in 1971 when this crime occurred; however, under the current Crimes Code, this crime would be considered murder of the third degree. 18 Pa.C.S.A. § 2502.

      . We note that Mr. Reed was not permitted to testify that he was diagnosed with a “repressed” memory, nor could he make any reference that he had any type of a "repressed” memory.

      . Ernsdorff & Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84 J.Crim.L. & Criminology 129 (1993).

      . Id. at 156.

      . Id.

      . Id.

      . Id.

      . Id.

      . Mat 158.

      . Id.

      . Hayes, The Necessity of Memory Experts for the Defense in Prosecutions for Child Sexual Abuse Based Upon Repressed Memories, 32 AM. CRIM.L.REV. 69, 71-72 (1994).

      . Id. at 72.

      . Ernsdorff & Loftus, supra, at 133-134.

      . Id. at 157.

      . Id.

      . Id. at 157-158.

      . Id. at 158.

      . Id. at 161.

      . Hayes, supra note 51, at 78.

      . Hayes, supra at 79.

      . Ernsdorff & Loftus, supra at 172.

      . Id.

      . Id.

      . Id.

      . The United States Supreme Court recently rejected the Frye standard in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the Court determined that the Frye standard was superseded by the Federal Rules of Evidence. The approach set forth in Daubert requires the trial court to determine whether the expert will testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. The criteria that the trial court should consider in assessing whether the scientific evidence is valid and will assist the trier of fact include:
      (1) whether the theory or technique can be or has been tested;
      (2) whether the theory or technique has been subjected to peer review and publication (although not dispositive);
      (3) whether there is a known or potential rate of error and whether there are standards controlling the technique’s operation;
      (4) whether the theory is “generally accepted” in the scientific community; this prong is only a factor to consider in determining admissibility and does not constitute a threshold necessity in determining admissibility;
      (5) furthermore, the focus must be solely on principles and methodology, not on the conclusions that they generate.
      The Pennsylvania supreme court chose not to determine whether or not the rationale of Daubert will supersede or modify the Frye standard in Pennsylvania. See Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, n. 2 (1994).

      . Because it is necessary to award Appellant a new trial on this claim, it is unnecessary to discuss his remaining issues in which he requests a new trial.


source: Caselaw Access Project

author: KELLY, Judge: BECK, Judge,

license: Public Domain

text:
    682 A.2d 329
    COMMONWEALTH of Pennsylvania v. Alan D. BORGER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1996.
    Filed Aug. 13, 1996.

      Glenn M. Goodge, Assistant Public Defender, Allentown, for appellant.
    Michael P. McIntyre, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before BECK, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether the trial court abused its discretion by denying appellant’s, Allen Dale Borger’s, petition to reinstate his post-verdict motions which had been dismissed following his escape from the Le-high County Prison while his post-verdict motions had been pending before the trial court. We hold that the trial court did not abuse its discretion by refusing to reinstate appellant’s post-verdict motions based upon its finding that there were no meritorious circumstances in connection with appellant’s escape and later apprehension that warranted the reinstatement of his post-verdict motions. Hence, we affirm the trial court’s order denying reinstatement of appellant’s post-verdict motions.

The relevant facts and procedural posture of the present case are simple and undisputed. On December 4, 1991, a jury convicted appellant of first degree murder. The following day, the court imposed a sentence of life imprisonment due to the jury’s failure to agree during death-penalty deliberation. Appellant filed timely post-verdict motions. These motions were later dismissed due to appellant’s escape from prison.

Approximately one month after appellant’s recapture and four months after his murder conviction, appellant petitioned the trial court to reinstate his post-verdict motions. The trial court denied that request, and appellant appealed from that order. This Court remanded the matter to the trial court because it appeared that the trial court was unaware that it had the discretion to reinstate appellant’s motions. See Commonwealth v. Borger, 429 Pa.Super. 209, 212-13, 632 A.2d 309, 311 (1993), allocatur denied, 539 Pa. 642, 651 A.2d 531 (1994). On remand, the trial court denied appellant’s petition, noting in particular the absence of any “meritorious circumstances in connection with this defendant’s escape and his later apprehension that should give rise to reinstating his post-trial motions.” (Trial Court Opinion, filed October 11, 1995, at 7-8). This timely appeal followed.

On appeal, appellant raises the following issue for our review:

WHETHER THE COURT COMMITTED ERROR AND ABUSE OF DISCRETION IN REFUSING TO REINSTATE THE APPELLANT’S POST-VERDICT MOTIONS?

Appellant’s Brief at 3.

A. Standard of Review

When post-verdict motions are properly dismissed because the defendant is a fugitive, we review a trial court order declining to reinstate those motions for abuse of discretion. See Commonwealth v. Chopak, 532 Pa. 227, 232, 615 A.2d 696, 699 (1992); Commonwealth v. Borger, supra at 210-11, 632 A.2d at 310; Commonwealth v. Clark, 300 Pa.Super. 315, 318, 446 A.2d 633, 634 (1982), cert. denied, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990); Commonwealth v. Boyd, 244 Pa.Super. 98, 100, 366 A.2d 934, 935 (1976); cf. In the Interest of J.J., 540 Pa. 274, 288, 656 A.2d 1355, 1362 (1995) (holding that Supreme Court will review for abuse of discretion an intermediate appellate court’s decision whether to consider the merits of or reinstate an appeal filed by a defendant who has been returned to custody after an escape); Commonwealth v. Rodriguez, 448 Pa.Super. 60, 61-63, 670 A.2d 678, 679 (1996) (holding that the decision whether to entertain the appeal of a fugitive once returned lies within this Court’s discretion).

No case law known to this Court states expressly what factors must guide the trial court’s exercise of such discretion. In Commonwealth v. Chopak, supra, a defendant’s post-trial motions were properly dismissed while he was a fugitive. After his recapture, defendant filed a motion nunc pro tunc for reconsideration of his post-verdict motions. The defendant claimed that by virtue of his personality disorder, he was not responsible for having fled. See Commonwealth v. Chopak, supra at 230, 615 A.2d at 698. The trial court denied the motion, and we reversed. See id. The Pennsylvania Supreme Court held that our reversal was error because the trial court had fully considered defendant’s proffered excuse for his flight. See id. at 232, 615 A.2d at 699. Instantly, appellant does not contest the validity of the original dismissal of his post-verdict motions, see Appellant’s Brief at 10, and the trial court refused to reinstate because it found no meritorious excuse for appellant’s escape. (See Trial Court Opinion at 7-8).

Our Supreme Court addressed a similar issue in Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). In that case, petitioner escaped during the pendency of an appeal before this Court. We quashed petitioner’s appeal because he was a fugitive. Upon recapture, petitioner conceded the validity of the original quashal but requested reinstatement of his appeal. We declined to reinstate the appeal. See id. at 613-14, 476 A.2d at 347-48. The Supreme Court affirmed, stating:

[Pjetitioner does not question the propriety of the dismissal of his appeal on the ground of his fugitive status. He argues, however, that since he has been apprehended and returned to the jurisdiction of the court his appeal should now be reinstated. Petitioner maintains that if the unresponsiveness of a fugitive to the court’s judgment is the main reason why his appeal is quashed, it is illogical to refuse to reinstate the appeal once the defendant is back within the control and jurisdiction of the court, and that the only basis for such a refusal is to punish the escape. We find this argument unpersuasive. The fact that a defendant is subsequently recaptured provides no basis for disturbing an order dismissing his appeal____ It would be unseemly to permit a defendant who has rejected the appellate process in favor of escape to resume his appeal merely because his escape proved unsuccessful.
Close examination of appellant’s argument demonstrates that his position is flawed____ He does not challenge the fact that his escape justified the initial quashing of the appeal. Thus the question is not whether he should be stripped of his right of appeal because of his escape, but rather whether his apprehension, which he in no way intentionally assisted, should entitle him to rights already forfeited. We can ascertain no reason in logic or any policy which would support such a conclusion.

Id. at 616-17, 476 A.2d at 349 (citations omitted). The Supreme Court recently reaffirmed this reasoning, citing it with approval. See In the Interest of J.J., supra at 280, 656 A.2d at 1358. In light of the reasoning in Commonwealth v. Chopak, supra, Commonwealth v. Passaro, supra, and In the Interest of J.J., supra, we hold that the trial court did not abuse its discretion in refusing to reinstate appellant’s post-verdict motions.

B. Appellant’s Arguments

Appellant asserts that the trial court made two omissions constituting an abuse of discretion. First, appellant argues that the trial court abused its discretion in failing to consider that “refusal to reinstate post-verdict motions has the effect of a life sentence for the crimes of escape, robbery, theft and conspiracy.” Appellant’s Brief at 14. Second, appellant posits that “the trial court simply failed to exercise its discretion,” id. at 16, because the trial court did not expressly consider factors that must be considered when deciding whether to dismiss post-verdict motions in the first instance. See id. at 16-19 (citing Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1 (1994); In the Interest of J.J., 447 Pa.Super. 259, 668 A.2d 1176 (1995)). We disagree.

The trial court’s denial of appellant’s request for reinstatement of his post-verdict motions does not operate to extinguish judicial review of his life sentence. Appellant may still petition for review under the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9501 et seq. Virtually every one of appellant’s fifty-four issues raised in post-trial motions involves a constitutional issue which may be raised in a PCRA petition pursuant to 42 Pa.C.S.A. § 9543(a)(2)(i). Accordingly, as appellant is fully eligible under 42 Pa.C.S.A. § 9543(a) to petition for a PCRA hearing, the only effect the denial of the reinstatement of his post-verdict motions has is to maintain the effect of the original dismissal, which appellant concedes was proper. See Appellant’s Brief at 10.

Appellant relies chiefly on the reasoning of Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) to support his first claim. The Supreme Court held in that case that the Eleventh Circuit could not apply a rule of per se forfeiture of appellate rights to a defendant who escaped and was recaptured before the appellate process began. See id. at 251, 113 S.Ct. at 1209-10, 122 L.Ed.2d at 599. In the course of its discussion, the Court stated that “[i]f we assume that there is merit to petitioner’s appeal, then the Eleventh Circuit’s dismissal is tantamount to an additional punishment of fifteen years for the same offense of flight.” Id. at 248, 113 S.Ct. at 1207-08, 122 L.Ed.2d at 596. Appellant’s reliance on this reasoning in support of his claim is misplaced. First, the procedural posture and central issue of Ortega-Rodriguez v. United States, supra, are completely different from the case at bar. This case does not deal with the propriety of any original dismissal of a petition for judicial review, as does Ortega-Rodriguez v. United States, supra. Second, in Ortega-Rodriguez v. United States, supra, the dismissing court (Circuit Court) was different from the court whose jurisdiction petitioner fled (District Court). See id. at 242, 113 S.Ct. at 1205, 122 L.Ed.2d at 595. Third, the above-quoted passage concerns the imposition of additional punishment (dismissal of appeal) after the petitioner had already been convicted and sentenced for escape. Instantly, the dismissing court was identical to the court from whose jurisdiction appellant fled; appellant’s motions were dismissed before he was convicted and sentenced for escape; and the denial of reinstatement is not an additional punishment, it is merely a maintenance of the original dismissal.

At best, appellant may complain that he will face a more stringent burden by raising his chosen issues at a PCRA hearing than he might have faced at a hearing on post-verdict motions. To countenance such a claim would be to hold that appellant’s flight should have no negative consequences beyond the imprisonment levied. See Appellant’s Brief at 13. Appellant fails to demonstrate how such a claim excuses his fugitivity. The PCRA review that remains available to appellant is more than fair, given his “act of defiance” and manifest disdain for judicial process. Commonwealth v. Kindler, supra at 233, 639 A.2d at 3. Consequently, appellant’s first argument is meritless.

Appellant’s second argument is meritless because it misconstrues the current trend in Pennsylvania law and ignores the import of this matter’s specific procedural posture. Appellant acknowledges that it is not the dismissal of the appellant’s post-trial motions that is at issue here, but instead it is the Court’s refusal to reinstate the appellant’s motions. Inexplicably, appellant proceeds to rely exclusively on cases like Ortega-Rodriguez v. United States, supra, which presents a different issue, specifically the dismissal, on appeal, of a case in which the accused was recaptured prior to the case going up on appeal. The other cases relied upon appellant in his brief, our Supreme Court’s decision in Commonwealth v. Kindler, supra and this Court’s decision on remand in In the Interest of J.J., supra, to allege trial court error instantly also deals with the propriety of the dismissal of post-verdict motions or appeals, not with the denial of a request for reinstatement.

The Supreme Court’s decision in In the Interest of J.J., supra, does stand for a mitigation of the harshness of the per se forfeiture rule laid down in Commonwealth v. Jones, 530 Pa. 536, 610 A.2d 439 (1992). See In the Interest of J.J., supra at 288, 656 A.2d at 1362 (plurality opinion) (overruling in part Commonwealth v. Jones, supra); see also Commonwealth v. Carino, 540 Pa. 571, 659 A.2d 556 (1995) (per curiam order) (adopting Commonwealth v. Huff, 540 Pa. 535, 658 A.2d 1340 (1995)). As we have indicated, however, these cases do not disturb the holding of Commonwealth v. Chopak, supra, and Commonwealth v. Passaro, supra, regarding a court’s discretion to refuse to reinstate motions previously dismissed where that dismissal is uncontested; in fact, this aspect of Commonwealth v. Passaro, supra was expressly reaffirmed in In the Interest of J.J., supra at 280, 656 A.2d at 1358. Consequently, appellant’s reliance on the authorities which he cites in support of his second argument is misplaced, and his argument is meritless.

C. Conclusion

No case has stated expressly the factors a court must consider when exercising its discretion whether to reinstate a criminal defendant’s properly dismissed request for review. Nonetheless, Commonwealth v. Chopak, supra, Commonwealth v. Passaro, supra, and In the Interest of J.J., supra, make clear that the operative issue is whether the defendant makes out a meritorious claim of entitlement to reinstatement. A court does not abuse its discretion in refusing to reinstate where the court fully considers a defendant’s proffered reasons for the absence occasioning the original dismissal, see Commonwealth v. Chopak, supra at 232, 615 A.2d at 699, and a defendant’s bare assertion that, after recapture, he is prepared to recognize the court’s authority does not require the trial court to reinstate the former fugitive’s post-verdict motions. See Commonwealth v. Passaro, supra at 616, 476 A.2d at 349. Accordingly, the trial court did not abuse its discretion when it denied appellant’s request for reinstatement where the court found “no meritorious circumstances in connection with this defendant’s escape and his later apprehension that should give rise to reinstating his post-trial motions.” (Trial Court Opinion at 7-8).

Based upon the foregoing, we affirm the order of the trial court denying appellant’s request to reinstate post-verdict motions.

Order affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring.

I agree with the majority that the trial court did not abuse its discretion in denying appellant’s request to reinstate his post verdict motions. However, I cannot agree that appellant’s reliance on Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993); Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1 (1994) and In the Interest of J.J., 447 Pa.Super. 259, 668 A.2d 1176 (1995) is misplaced.

As noted by the majority, the case law provides little guidance on how to assess the types of claims raised by appellant. While Commonwealth v. Chopak, 532 Pa. 227, 615 A.2d 696 (1992), is procedurally on point here, it fails to establish a test or list of factors to be considered in deciding whether an abuse of discretion occurred in the denial to reinstate post verdict motions. Although Kindler and Interest of J.J. concern the dismissal of an appeal due to a defendant’s fugitive status, it is clear that in deciding those cases, our supreme court found Chopak relevant to its analysis. See In The Interest of J.J., 540 Pa. 274, 656 A.2d 1355 (1995) (discussing the discretion granted the trial court in deciding whether to reinstate post verdict motions in the context of an appellate court’s discretion in deciding whether to dismiss an appeal).

I believe it is appropriate to consider this court’s opinion in Interest of J.J., supra, as well as the other cases relied on in that opinion, when assessing the instant claim. Considering the lack of direction in this area of the law and until our supreme court delineates a difference among the various cases, I would find relevant any case which addresses the ramifications of a defendant’s flight after conviction. In doing so, I would find that no abuse of discretion occurred in this case.

Despite appellant’s insistence that we adopt the factors set forth in Interest of J.J., he fails to offer any reasons why the “consequences of his flight from the jurisdiction [should be] mitigated.” See Chopak, supra at 234, 615 A.2d at 700. Interest of J.J. suggests that a court consider, along with “any other relevant factor,” the stage of the proceedings when flight occurred, the manner of escape, whether a return to custody occurred and whether that return was voluntary, the reason for escape, the length of time the defendant remained at large, the age or condition of the defendant (whether he was mature enough to comprehend the significance of his conduct) and the effect the defendant’s flight had on the court’s ability to review his case. Interest of J.J., supra, at 265-66, 668 A.2d at 1179. Appellant can rely only on a general assertion in his brief that review is still possible despite his flight. However, appellant fails to note that his age, the circumstances surrounding his return to custody, and the manner of his escape, militate strongly against reinstatement. Further, he offers no sound “reason” for his escape and considering the circumstances surrounding it, we can only conclude that it was “a deliberate intent to flout the authority of the court.” Id.

Because I believe appellant’s request for reinstatement of his post verdict motions was properly denied, I concur in the result reached by the majority.

      . 18 Pa.C.S.A. § 2502(a).

      . Appellant concedes the propriety of this dismissal. See Appellant's Brief at 10. In the course of his escape, appellant committed additional offenses of theft, robbery, escape and criminal conspiracy, for which he received an additional thirteen-and-a-half to twenty-seven years imprisonment. See Appellant's Brief at 5.

      . Justice Cappy would hold that "an appeal may be reinstated in the court's discretion if ... the fugitive-appellant can show a compelling reason for having his claim heard." Commonwealth v. Kindler, 536 Pa. 228, 242, 639 A.2d 1, 8 (1994) (Cappy, J. concurring). Then Justice Flaherty, now Chief Justice, and Justice Zappala "would go somewhat further perhaps and require that a compelling reason of the most extraordinary nature be present before the post-verdict motions of an ex-fugitive may be reinstated." Id. at 243, 639 A.2d at 9 (Flaherty, J., concurring, with Zappala, J., joining). Justice Castille continues to hold that flight operates as a per se forfeiture of the right to judicial review. See Commonwealth v. Huff, 540 Pa. 535, 539, 658 A.2d 1340, 1342 (1995) (Castille, J., dissenting).

      . This is our published decision on remand from ihe Supreme Court case of the same name found at 540 Pa. 274, 656 A.2d 1355, cited previously in this opinion.

      . We make no determination as to the merits of any claims that may be raised at a PCRA hearing, nor do we rule at this stage whether a PCRA hearing on any of appellant’s issues is required.

      . I note that with the recent changes in post trial procedure, reinstatement of post verdict motions in criminal cases will cease to be an issue. Amended Rule of Criminal Procedure 1410 now makes the filing of post sentence motions optional. Failure to file such motions in the trial court no longer results in waiver of issues properly preserved before or during trial.


author: • KELLY, Judge.

text:
    682 A.2d 334
    Tharone CHANTHAVONG a/k/a Kenny Chanthavong, Appellant, v. Tuan Q. TRAN, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1996.
    Filed Aug. 14, 1996.

      Marc F. Greenfield, Philadelphia, for appellant.
    Michael J. Willner, Philadelphia, for appellee.
    Before KELLY, POPOVICH and MONTEMURO, JJ.

       Retired Justice assigned to the Superior Court.

   • KELLY, Judge.

In this appeal we are asked to determine whether the trial court properly limited certain expert testimony and correctly instructed the jury regarding serious injury for purposes of the limited tort alternative under the Motor Vehicle Financial Responsibility Law. Based upon the reasoning set forth below, we hold that the trial court erroneously limited the expert testimony and improperly instructed the jury so as to warrant a new trial. Accordingly, we reverse and remand for proceedings consistent with this opinion.

The relevant factual and procedural history of this appeal is as follows. On January 28, 1993, at approximately 7:30 a.m., appellee collided with the rear of appellant’s vehicle. As a result of the accident, appellant was treated by his family doctor for severe back pain, and consequently missed two months of work. Appellant filed a complaint in the Court of Common Pleas of Philadelphia County on August 18, 1993. The case went to trial before the Honorable Albert F. Sabo on October 11,1994.

On the morning of trial, the parties stipulated to liability. Appellant had chosen the limited tort option of his insurance policy; therefore, the only issue for the jury was whether appellant sustained a “serious injury,” entitling him to noneconomic damages. In order to establish that he had suffered a serious injury, appellant testified that his injury prevented him from participating in everyday activities. Additionally, appellant offered his family physician, Dr. Robert Bell, as an expert general practitioner. Dr. Bell testified that after reviewing a CAT scan report prepared by the radiologist, Dr. Brian J. Young, he concluded that appellant sustained a central disc herniation as a result of the accident. The trial court, however, precluded Dr. Bell from answering the following questions posed by appellant’s counsel:

Q. Now based upon your report that you received in Mr. Chanthavong’s case, what kind of situation were his disks in at L4-L5?

(N.T. 10/12/94 at 110).

Q. Okay. Did you come to a conclusion to a reasonable degree of medical certainty that treatment would be required after you received that CAT scan report?

(Id. at 161). The trial court found that Dr. Bell was not qualified to express an expert opinion as to these questions.

Additionally, appellant offered Dr. Young as an expert radiologist. Dr. Young also testified that a CAT scan performed on appellant revealed that he had suffered a central disk herniation. The trial court, however, did not allow Dr. Young to answer any questions regarding the type of pain and suffering experienced by a person who has sustained a herniated disc. The trial court precluded this testimony because it believed an orthopedist or neurologist would have been more qualified to offer an expert opinion as to this issue. (Trial Court Opinion at 8). The trial court also found that this line of questioning was beyond the scope of Dr. Young’s report, and therefore properly excluded. (Id. at 8).

During closing arguments, appellant’s counsel offered the following:

How do we determine what pain and suffering and loss of life’s pleasures are worth? What I would suggest you do is you take into consideration what one day of pain is, what one day of loss of life’s pleasures is, and you figure out in your mind how much is that pain, how many dollars is that worth?

(N.T. 10/13/94 at 59-60). Thereafter, the trial court sustained defense counsel’s objection that this was an improper argument. The trial court found that it was improper for counsel to instruct the jury on how to compute damages. Moreover, the trial court stated:

The issue of damages was not at issue in this case. Plaintiff elected limited tort which precluded him from recovering non-economic damages to the extent that a serious injury did not exist. The jury in this case decided Plaintiff had not suffered a serious injury. Therefore, he was not prejudiced because damages were not in issue.

(Trial Court Opinion at 9).

At the close of trial, the trial court instructed the jury, over appellant’s objections, that “the law does not recognize soft tissue injury as a serious injury.” (N.T. 10/17/94 at 15). Subsequently, the jury returned a verdict in favor of appellee. The trial court denied appellant’s motion for a new trial, and this timely appeal followed.

Appellant raises the following issues for our review:

1. DID THE TRIAL JUDGE ERR IN LIMITING AND PROHIBITING CERTAIN TESTIMONY OF THE PLAINTIFF’S MEDICAL EXPERT, DR. ROBERT BELL, BASED ON HIS ALLEGED LACK OF QUALIFICATIONS?
2. DID THE TRIAL JUDGE ERR IN LIMITING AND PROHIBITING CERTAIN TESTIMONY OF THE PLAINTIFF’S MEDICAL EXPERT, DR. BRIAN J. YOUNG, BASED ON HIS TESTIMONY BEING BEYOND THE SCOPE OF HIS REPORT AND ON HIS ALLEGED LACK OF QUALIFICATIONS?
3. DID THE TRIAL JUDGE ERR IN LIMITING PLAINTIFF’S COUNSEL’S CLOSING ARGUMENT?
4. DID THE TRIAL JUDGE ERR IN HIS CHARGE TO THE JURY REGARDING “SERIOUS INJURY”?

(Appellant’s Brief at 4).

At the outset, we note that our standard for reviewing the trial court’s denial of a motion for a new trial is limited.

The Superior Court’s standard for reviewing the' trial court’s denial of a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which affected the outcome of the case. Melso v. Sun Pipe Line Co., 394 Pa.Super. 578, 576 A.2d 999 (1990), appeal denied, 527 Pa. 667, 593 A.2d 842 (1991); Cooper v. Burns, 376 Pa.Super. 276, 545 A.2d 935 (1988), appeal denied, 522 Pa. 619, 563 A.2d 888 (1989). We will reverse the trial court’s denial of a new trial only where there is a clear abuse of discretion or an error of law which controlled the outcome of the case. Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965); Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa.Super. 606, 595 A.2d 70 (1991). The trial court abuses its discretion when it misapplies the law or when it reaches a manifestly unreasonable, biased or prejudiced result. Girard Trust Bank v. Remick, 215 Pa.Super. 375, 258 A.2d 882 (1969).

Whyte v. Robinson, 421 Pa.Super. 33, 37, 617 A.2d 380, 382 (1992). We begin our analysis by addressing appellant’s first and second issues raised on appeal.

I. Expert Testimony of Drs. Bell and Young

In his first and second issues on appeal, appellant maintains that Judge Sabo erred in precluding the proffered expert testimony of Drs. Bell and Young. Appellant contends that both doctors possessed the necessary qualifications and experience to offer their expert opinions to the questions posed by appellant’s counsel. Furthermore, appellant contends that Dr. Young’s proffered testimony regarding the implications of a herniated disc were not beyond the scope of his report. We agree.

A. Qualifications of Drs. Bell and Young

The law regarding the qualifications of expert witnesses is well settled.

It is well established in this Commonwealth that the standard for qualification of an expert witness is a liberal one. The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine. Commonwealth v. Gonzales, 519 Pa. 116, 128, 546 A.2d 26, 31 (1988); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974); Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 501, 80 A.2d 734, 738 (1951). It is also well established that a witness may be qualified to render an expert opinion based on training and experience. Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 598, 437 A.2d 1198, 1202 (1981) (plurality opinion). Formal education on the subject matter of the testimony is not required, see Reardon v. Meehan, 424 Pa. 460, 464, 227 A.2d 667, 670 (1967); Churbuck v. Union Railroad Company, 380 Pa. 181, 110 A.2d 210 (1955); McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 608, 533 A.2d 436, 440 (1987), allocatur denied, 520 Pa. 589, 551 A.2d 215 (1988); Gottfried v. American Can Co., 339 Pa.Super. 403, 489 A.2d 222 (1985); Commonwealth v. Daniels, 280 Pa.Super. 278, 286-87, 421 A.2d 721, 726 (1980).

Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995). Moreover, experts in one area of medicine may be found to be qualified to address other areas of specialization where the specialties overlap in practice, or where the specialist has had experience in a selected field of medicine. Estate of Pew, 409 Pa.Super. 417, 424, 598 A.2d 65, 69 (1991), allocatur denied, 530 Pa. 645, 607 A.2d 255 (1992) (citing Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550 (1989), allocatur denied, 527 Pa. 635, 592 A.2d 1302 (1990)).

Instantly, the trial court precluded Dr. Bell from testifying as to the condition of appellant’s spine and the subsequent treatment necessary to treat his injury. The trial court found that Dr. Bell did not possess the necessary qualifications to offer his expert opinion on these matters.

At the time of trial, Dr. Bell was a board-certified general practitioner. (N.T. 10/12/94 at 57). He had been-practicing medicine for over sixteen years, and approximately twenty-five percent of his practice had consisted of personal injury. (Id. at 57-59). Furthermore, in the course of his practice, Dr. Bell regularly received CAT scan reports and used them in the course and scope of his treatment of patients. (Id. at 92).

Due to Dr. Bell’s training and experience, we conclude that he had a “reasonable pretension to specialized knowledge” in the use of CAT scan reports to diagnose and treat patients. The combination of his training and experience with patients who have sustained personal injuries, qualified him to aid the jury in its deliberations. See Miller v. Brass Rail Tavern, Inc., supra; Estate of Pew, supra.

The trial court also prohibited Dr. Young from offering expert testimony on the type of pain and suffering caused by a herniated disc. In the trial court opinion, Judge Sabo stated that “this court disallowed testimony only where an orthopedist or neurologist would have been more qualified to testify on the causation of herniated discs.” (Trial Court Opinion at 8).

At the time of trial, Dr. Young was a board-certified radiologist. (N.T. 10/12/94 at 173). In addition, he had acquired a sub-specialty in neuroradiology by completing a two-year neuroradiology fellowship at the University of Pennsylvania Hospital. (Id. at 173-74). He was also a senior member of the American Society of Neuroradiology. (Id. at 174). In addition, Dr. Young had taught neuroradiology at the Medical College of Pennsylvania and the Philadelphia College of Osteopathic Medicine. (Id.).

It is our determination that Dr. Young had the necessary knowledge of the pain associated with a herniated disc in order to qualify him as an expert on this subject. The fact that an orthopedist or neurologist would have been more qualified to offer an expert opinion on the pain caused by a herniated disc, did not warrant exclusion of Dr. Young’s testimony on the subject. See Taylor v. Spencer Hospital, 222 Pa.Super. 17, 24 n. 2, 292 A.2d 449, 453 n. 2 (1972) (explaining that witnesses having “any reasonable pretension to specialized knowledge on a given subject should be allowed to testify as expert witnesses even though they are not the ‘best possible witnesses’ available”). Hence, we conclude that the trial court’s exclusion of Dr. Young’s proffered testimony on the implications of a herniated disc constituted an abuse of discretion.

B. Scope of Dr. Young’s Report

The trial court also excluded Dr. Young’s testimony regarding the pain associated with a herniated disc because it found this testimony was beyond the scope of his report. We disagree.

This Court has recently set forth the applicable law regarding the scope in which an expert witness may testify as to his or her pretrial report as follows:

“[Ejxperts may testify at trial concerning matters which are within the fair scope of a pretrial report.” Pascale v. Hechinger Company of Pennsylvania, 426 Pa.Super. 426, 435, 627 A.2d 750, 754 (1993) (citations omitted). “The avoidance of unfair surprise to an adversary concerning the facts and substance of an expert’s proposed testimony is the primary purpose of the rule requiring that testimony be within the fair scope of the pretrial report.” Id. (citation omitted).

In Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc., 348 Pa.Super. 285, 502 A.2d 210 (1985), the Superior Court noted that

it is impossible to formulate a hard and fast rule for determining when a particular expert’s testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary’s request, “the substance of the facts and opinions to which the expert is expected to testify” is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony. See Augustine v. Delgado, 332 Pa.Super. [194] at 199, 481 A.2d [319] at 321 [ (1984) ] (“Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise”); Martin v. Johns-Manville Corp., 322 Pa.Super. [348] at 358, 469 A.2d [655] at 659 [ (1983) ] (“[W]e have found experts’ reports to be adequate ... when the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.”)
In other words, in deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.

Id., 348 Pa.Super. at 290, 502 A.2d at 212-213.

Walsh v. Kubiak, 443 Pa.Super. 284, 291-92, 661 A.2d 416, 420 (1995), allocatur denied, 543 Pa. 716, 672 A.2d 309 (1996) (emphasis supplied). Accord Greer v. Bryant, 423 Pa.Super. 608, 615, 621 A.2d 999, 1003 (1993).

Instantly, appellee received a copy of Dr. Young’s pretrial report which stated that appellant had sustained a herniated disc. Appellee was also aware that the only issue at trial was whether appellant had suffered a “serious injury” as a result of the accident. Thus, it naturally followed that appellant would attempt to establish not only the fact that he had sustained an injury, but also the effects thereof. We cannot see how Dr. Young’s testimony would have surprised appellee or prevented him from preparing a meaningful response. Thus, we conclude that the trial court abused its discretion by prohibiting Dr. Young’s proffered testimony under a theory that it was beyond the scope of his report.

Based upon the foregoing, we conclude that the exclusion of the proffered testimony of Drs. Bell and Young constituted harmful, prejudicial, and reversible error necessitating reversal and remand for a new trial as to whether the accident caused appellant to sustain a “serious injury,” entitling him to an award of non-economic damages.

II. Jury Instructions

We turn now to appellant’s fourth issue on appeal challenging the validity of the trial court’s instructions to the jury. Our standard for reviewing the trial court’s jury instructions is governed by the following principles:

In determining whether to reverse a jury verdict due to an erroneous jury charge, an appellate court must look at the jury charge as a whole; if the charge inaccurately describes the law, there is error. Reilly by Reilly v. Southeastern Pennsylvania Transp. Auth., 507 Pa. 204, 489 A.2d 1291 (1985); Schecter v. Watkins, 395 Pa.Super. 363, 374-75, 577 A.2d 585, 590-91, appeal denied, 526 Pa. 638, 584 A.2d 320 (1990). However, error alone does not mandate a new trial. To constitute reversible error, a jury instruction must not only be erroneous, but must also be harmful to the complaining party. Jistarri v. Nappy 378 Pa.Super. 583, 588, 549 A.2d 210, 213 (1988); Mickey v. Ayers, 336 Pa.Super. 512, 514-15, 485 A.2d 1199, 1202 (1984).

Summit Fasteners Inc. v. Harleysville National Bank & Trust Co., Inc., 410 Pa.Super. 56, 62, 599 A.2d 203, 206 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992). Moreover, if the jury instruction is fundamentally in error and may have been responsible for the verdict, a new trial is warranted. Mt. Lebanon School District v. W.R. Grace and Company, 414 Pa.Super. 455, 468, 607 A.2d 756, 762 (1992), appeal dismissed, 534 Pa. 265, 631 A.2d 596 (1993).

Appellant contends that the trial court erred by instructing the jury as follows:

Only non-economic losses, often referred to as pain and suffering, and any related loss to this pain and suffering, are recoverable if you find the Plaintiff has proven by a preponderance of the evidence that he has suffered a serious impairment of a body function which was caused by the accident of January the 28th of 1993. The law does not recognize soft tissue injury as a serious injury. In determining whether the impairment of a body function was serious, you should consider such factors as the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, competent medical testimony supporting the claimed impairment, any other relevant factors dealing with the cause of the alleged injury.

(N.T. 10/17/94 at 15-16) (emphasis added). Appellant asserts that Pennsylvania law recognizes that soft tissue injuries can constitute a “serious injury” warranting an award of non-economic damages. Furthermore, appellant maintains that the aforementioned instruction prejudiced him by directing a verdict in favor of appellee. We agree.

The Pennsylvania Motor Vehicle Financial Responsibility Law provides in pertinent part:

Limited tort alternative. — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to the applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss....

75 Pa.C.S.A. § 1705(d). The Pennsylvania Legislature has defined serious injury as “a personal injury resulting in death, serious impairment of a bodily function, or permanent disfigurement.” 75 Pa.C.S.A. § 1702.

The aforementioned language was modeled after Michigan law. Thus, this Court has adopted several factors set forth by Michigan case law in order to determine if a person has sustained “serious impairment of a bodily function.” This Court has stated:

The “serious impairment of body function” threshold contains two inquiries:
a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
b) Was the impairment of body function serious? The focus of these inquires is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, a medical testimony will be needed to establish the existence, extent, and permanency of the impairment ... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.

Dodson v. Elvey, 445 Pa.Super. 479, 499, 665 A.2d 1223, 1233-34 (1995), allocatur granted, 544 Pa. 608, 674 A.2d 1072 (1996) (citing DiFranco v. Pickard, 427 Mich. 32, 39, 398 N.W.2d 896, 901 (1986)). Accord Murray v. McCann, 442 Pa.Super. 30, 36, 658 A.2d 404, 407 (1995) (citing same). Furthermore, this Court has recently recognized that a soft tissue injury can constitute a “serious injury” where it is objectively manifested and substantially impairs body function. Dodson v. Elvey, supra at 501, 665 A.2d at 1233. Hence, we must conclude that the trial court erred by instructing the jury that a soft tissue injury can never constitute a serious injury.

Despite the trial court’s erroneous charge, appellee contends that the instructions, taken as a whole, accurately set forth the applicable law. Furthermore, appellee asserts that the erroneous instruction did not prejudice appellant, making a new trial unwarranted. We disagree.

In support of his argument, appellee relies on Murray v. McCann, supra. In Murray, this Court upheld the trial court’s denial of a motion for new trial despite isolated wording in the trial court’s opinion which stated “a soft tissue injury never could qualify as a serious impairment of bodily functions.” Id. at 35, 658 A.2d at 406. The Murray Court held that although these isolated remarks in the trial court’s opinion represented an error of law, the trial court applied the proper legal standard in finding that the appellant in that case did not suffer a “serious injury.” Id. at 38, 658 A.2d at 407. The Court stated:

In determining the correct definition for the term at issue, the trial court properly turned to guidance from Michigan’s body of case law. The court cited to the leading Michigan case, DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896, 914-15 (1986), and concluded that “the factors” which should be utilized in determining whether a bodily impairment is serious are “the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, [and] the treatment required to correct the impairment.” In addition, any other relevant factor may be utilized under the DiFranco decision.
The trial court also examined the evidence and analyzed how appellant’s injuries interfered with her life. In addition, the trial court reviewed the extent of appellant’s impairment, noting that she performs all normal daily activities. It further determined that no particular body function was impaired due to the fact that appellant did do all her normal activities but did so with minor aches and pains. Moreover, the trial court considered the amount of medical treatment sought by appellant and observed the following. When Dr. Chidester, the last physician to treat appellant, examined appellant, she had full range of motion of the neck and no low back pain. The trial court noted that appellant participates in everyday activities, albeit with stiffness, and that appellant herself testified that she is able to touch her toes and has full range of motion in her neck. In addition, the trial court observed that appellant never wore a neck or back brace and the only medication she took was ibuprofen. Furthermore, the trial court observed that appellant never was hospitalized, physical therapy was completed after four months, and thereafter appellant had one additional doctor visit eight months after the accident. Finally, it credited Dr. Willner’s opinion that the slight limitations on appellant’s activities would not be permanent. Trial court opinion, 6/22/94, at 6. In other words, the court examined the evidence on each of the four factors outlined in DiFmnco.

Id. at 38, 658 A.2d at 407.

The instant case is distinguishable from Murray in that here a jury sat as the trier of fact. Unlike the Murray Court, we are without the benefit of an opinion explaining how the jury decided that appellant had not sustained a serious injury. Additionally, in the case sub judice, appellant allegedly suffered a soft tissue injury objectively manifested in the form of a central disc herniation. Unlike the appellant in Murray, appellant was unable to participate in everyday activities as a result of this injury. Furthermore, the improperly precluded testimony of appellant’s medical experts would have established that future medical attention was necessary to treat appellant’s injuries.

At trial, it was undisputed that the only injury allegedly sustained by appellant was a soft tissue injury. Thus, the only issues for the jury were (1) whether appellant in fact sustained a soft tissue injury and (2) whether it constituted a “serious impairment of bodily function,” entitling appellant to an award of non-economic damages. By instructing the jury that “the law does not recognize soft tissue injury as a serious injury,” the trial judge essentially resolved both issues in this case in favor of appellee. Moreover, the erroneous instruction precluded the jury from applying the proper legal standard set forth in Dodson v. Elvey, supra, and Murray v. McCann, supra. Even if the jury believed that appellant had sustained a central disc herniation, that as a result he was unable to engage in everyday activities, and that future medical attention was necessary to treat the injury, the jury was still prohibited by the trial court from making a determination that appellant’s injury was a “substantial impairment to a bodily function” under the Dodson and Murray standard. Thus, we conclude that the trial court’s jury instructions, taken as a whole, unfairly prejudiced appellant, warranting a new trial.

Based upon the foregoing analysis, we reverse the order of the trial court and remand for a new trial to determine whether appellant sustained a “serious injury,” entitling him to an award of non-economic damages.

Order reversed and case remanded for a new trial. Jurisdiction is relinquished.

      . We note that at the time the trial court instructed the jury, it was without the benefit of the abovementioned Superior Court decisions stating that a soft tissue injury can constitute a "serious injury” under 75 Pa.C.S.A. § 1705(d).

      . Appellant also asserts that the trial court erred by instructing the jury that:
      The phrase serious impairment of body function must be considered in conjunction with death and permanent, serious disfigurement. The legislature did not intend to erect two significant obstacles to a tort action for non-economic loss and one quite insignificant one.
      (N.T. 10/17/94 at 16). Although this instruction does not constitute an error of law per se, when viewed in the context of the entire instruction, we conclude that the instruction unduly prejudiced appellant, warranting a new trial.

      . In his third issue on appeal, appellant asserts that the trial court erred by limiting counsel's closing argument as to the calculation of damages. Because of our treatment of appellant’s other issues, we need not address the merits of this claim.


author: MONTEMURO, Judge:

text:
    682 A.2d 343
    Joseph A. PAPALIA, Appellant, v. MONTOUR AUTO SERVICE COMPANY, Thomas W. Bixler and Jane Bixler, His Wife, and Ronney Faulk and Donna K. Faulk, His Wife, Appellees. Joseph A. PAPALIA, Appellant, v. William H. FISH t/d/b/a Fish Real Estate, Better Homes and Gardens, Appellee. Lisa A. Reighard PAPALIA, Appellant, v. MONTOUR AUTO SERVICE COMPANY, Thomas W. Bixler and Jane Bixler, His Wife, Ronney Faulk and Donna K. Faulk, His Wife, and William H. Fish t/d/b/a Fish Real Estate, Better Homes and Gardens, Appellees. Appeal of Joseph A. PAPALIA and Lisa A. Reighard Papalia.
    Superior Court of Pennsylvania.
    Argued June 13, 1996.
    Filed Aug. 7, 1996.

      James M. Wiley, Williamsport, for Joseph A. & Lisa A. Reighard Papalia, appellants.
    John F. Fox, Jr., Plymouth Meeting, for Montour Auto Service Co., appellee.
    Brian C. Caffrey, Williamsport, for Ronney & Donna Faulk, appellees.
    C. Edward Mitchell, Williamsport, for William H. Fish, appellee.

      Before TAMILIA and JOHNSON, JJ., and MONTEMURO, J.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge:

This is an appeal from the Order of the Court of Common Pleas of Lycoming County refusing to remove a nonsuit entered against Joseph and Lisa Papalia (Appellants). For the following reasons, we affirm.

This appeal is comprised of three consolidated cases, the earliest of which was commenced on July 31, 1992. The complaints were filed on behalf of Appellants by J. David Smith, Esquire, and alleged that Appellees either were responsible for contaminating their real estate with heating oil or failed to inform them that the real estate was so contaminated.

After an extensive period of pre-trial discovery and motions practice, a pre-trial conference was held on May 24, 1994. The court then entered a pre-trial order on May 27, 1994, scheduling trial for the term of June 13 through July 1, 1994.

On June 20, 1994, one week before trial was to commence, attorney Smith requested that he be allowed to withdrawal his appearance as counsel for Appellants. At that time, Appellants filed a motion for a continuance to secure new counsel. These requests were based on allegations that attorney Smith and his clients had a fundamental disagreement on core issues regarding the handling of the case. After a hearing, the court granted counsel’s petition to withdraw and granted Appellants’ motion for a continuance, provided that they post $2,000.00 with the Prothonotary to cover any direct costs caused by the continuance, and that defense counsel provide the Court Administrator with a block of three days during the October term during which their experts and witnesses would be available. The court also informed Appellants that it would not continue the case again at their request. In its Order dated June 24,1994, the court reiterated that the case was not to be continued again at the request of Appellants, and substitute counsel, as well as Appellants’ witnesses, would need to be available at the time the court sets for trial.

On September 1,1994, Appellants filed another motion for a continuance. They alleged that, despite due diligence, they were unable to retain substitute counsel willing to accept their case on the condition that it be tried during the October term, but that they had found counsel who would represent them upon the grant of another continuance.

On September 9, 1994, the court ordered Appellees to file answers to Appellants’ motion for a continuance and ordered Appellants to file a certification of substitute counsel, concerning that counsel’s willingness to represent Appellants and abide by the court’s requirements. The court also directed Appellants to continue to pursue all reasonable possibilities of obtaining counsel who would be willing and able to try the case during the scheduled trial dates of October 24 through October 27, 1994. On September 22, 1994, the court entered an Order denying Appellant’s motion for a continuance. Later that same day, when it became apparent that the court’s Order of September 9, 1994, had been mailed to the wrong address, the court entered a supplemental Order. It provided Appellants the opportunity to file the previously required certification of substitute counsel by September 30, 1994.

On October 4, 1994, the court held a hearing on Appellants’ second motion for a continuance. Appellees set forth their objections to another continuance. Appellants, unrepresented by counsel, provided no specifics concerning the unavailability of counsel that was allegedly willing to represent them if they were able to obtain a continuance. Appellants also failed to present any evidence concerning any additional efforts to obtain substitute counsel after August 30, 1994. The court denied Appellants’ motion for a continuance, at which time Appellant Mr. Papalia stated that he was prepared to represent himself and that his wife would represent herself. (N.T. October 4, 1994, at 32.) However, on October 24, 1994, the day jury selection was to commence, Appellants refused to proceed with the trial without counsel. (N.T. October 24, 1994, at 6.) Appellants also stipulated that if a jury were impaneled, they would not present any evidence in their case. On that basis, Appellees moved for an involuntary nonsuit against Appellants, which the court granted. The Order granting the nonsuit was filed with the Prothonotary on November 2,1994.

On November 14, 1994, Appellants, through new counsel, filed a motion for post-trial relief, seeking removal of the nonsuit and asserting that the court abused its discretion by denying their motion for a continuance. On February 22, 1995, the trial court denied Appellants’ motion. The instant appeal followed.

We must first address Appellees’ contention that this appeal should be quashed, because Appellants failed to file a timely motion for post-trial relief. Rule 227.1(c) of the Pennsylvania Rules of Civil Procedure provides that post-trial motions shall be filed within ten days after:

(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or

(2) notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or equity trial.

Although it is not clear from the language of Rule 227.1(c)(1) whether the ten day period should begin running upon the announcement by the court or the actual filing of the Order, we believe that this period begins to run when the Order of the court is entered on the docket, thereby placing it on the record. Accordingly, we find that Appellants’ motion for post-trial relief was timely, and this appeal is properly before this court.

Rule 216(A) provides the following grounds for a continuance:

(1) Agreement of all parties or their attorneys, if approved by the court;
(2) Illness of counsel of record, a material witness, or a party ...;
(3) Inability to subpoena or to take testimony by deposition, commission, or letters rogatory, of any material witness * • ' f
(4) Such special ground as may be allowed in the discretion of the court.
(5) The scheduling of counsel to appear at a proceeding under the Pennsylvania Rules of Disciplinary Enforcement ...
(6) The scheduling of counsel to appear at a proceeding involving the discipline of a justice, judge or district justice ...

Pa.R.Civ.P. 216(A). Rule 216 further provides that:

(B) Except for cause shown in special cases, no reason above enumerated for the continuance of a case shall be of effect beyond one application made on behalf of one party or group of parties having similar interests.
Pa.R.Civ.P. 216(B).

To determine whether a trial court abused its discretion by denying a request for a continuance, the reviewing court should consider the following factors: “whether there was prejudice to the opposing party by a delay, whether opposing counsel was willing to continue the case, the length of the delay requested and the complexities involved in presenting the case.” Snyder v. Port Auth. of Allegheny County, 259 Pa.Super. 448, 453, 393 A.2d 911, 914 (1978) (citing Nerkowski v. Yellow Cab Co., 436 Pa. 306, 259 A.2d 171 (1969)).

Appellants cite several cases to support their contention that a continuance should have been granted, and that it was an abuse of discretion to deny the request, thereby resulting in the grant of a nonsuit against them. Each of these cases is distinguishable from the instant case. Dublin Sportswear v. Charlett, 485 Pa. 633, 403 A.2d 568 (1979) (request for one day continuance); Budget Laundry Co. v. Munter, 450 Pa. 13, 298 A.2d 55 (1972) (request for three to four day continuance); Nerkowski v. Yellow Cab Co., 436 Pa. 306, 259 A.2d 171 (1969) (grant of one week continuance); Krupa by Krupa v. Williams, 316 Pa.Super. 408, 463 A.2d 429 (1983) (request for two to three day continuance); Mazzenga v. Dorfman, 272 Pa.Super. 379, 415 A.2d 1248 (1979) (request of one-half day continuance).

We find Snyder v. Port Auth. of Allegheny County, 259 Pa.Super. 448, 393 A.2d 911 (1978), to be persuasive and directly on point. In that case, the plaintiff discharged her attorney and retained substitute counsel three days before trial was scheduled to begin. Id. at 450, 393 A.2d at 912. At the call of the list, new counsel requested a continuance for additional time to prepare. Id. The court granted a seven day continuance. Id. At the next call of the list, counsel again reported that it was not ready for trial. Id. The court, nonetheless, ordered the case to trial. Id. Five days later, on the day of the trial, the plaintiff and new counsel failed to appear. Id. Defendants moved for a nonsuit, which the court granted. Id. at 450, 393 A.2d at 912-13. The trial court refused to remove the nonsuit, and plaintiffs appealed to this court. Id. at 450, 393 A.2d at 913. The Court, upon reviewing the facts before the lower court, held that there was no abuse of discretion. Id. at 452, 393 A.2d at 913. The Court stated, “we do not feel it so unreasonable for the lower court to have granted only a one week continuance in this case based on the grounds of inadequate preparation due to change in counsel. Changing counsel only three days before the case was listed for trial is a risk the appellant must bear, and not the courts.” Id. Furthermore, the Court noted that the appellant did not have an absolute right to counsel of choice; that appellant took her chances in changing counsel three days before trial; and that since there is no evidence of malpractice on the part of her attorney, her right to counsel was not infringed. Id. at 455, 393 A.2d at 915.

Similarly, in this case, Appellants discharged their attorney virtually on the eve of trial. There were no allegations that attorney Smith was not competent. In fact, Appellant Mrs. Papalia stated that she felt that attorney Smith was competent, but that she simply wanted an environmental attorney. (N.T. June 24, 1994, at 17.) Furthermore, the court noted in its Order dated September 22, 1994, that attorney Smith maintained a legal file which was well prepared, well documented and well organized.

We also note that the case does not appear to be particularly complex, as it simply requires Appellants to show that there was heating oil in the ground at the property in issue, and that Appellees knowingly failed to inform them of it. Appellants were seeking a lengthy delay of five months, after having previously received a continuance of four months to secure substitute counsel to try their case. Appellees all opposed any additional delay and emphasized that they were prepared to proceed to trial and their witnesses were available to testify both in June and October. They asserted that any further delay would prejudice their defense.

Based on the facts presented, we find that Appellants have failed to present any evidence suggesting that the circumstances surrounding this case are so special as to warrant the granting of a second continuance; therefore, we cannot find that the trial court abused its discretion by denying Appellants’ request for a continuance, granting a nonsuit against them, and refusing to remove the nonsuit.

Accordingly, for the foregoing reasons, we hereby affirm the Order of the trial court.

      . The certification of substitute counsel merely stated, "Counsel has numerous other matters scheduled which cannot be postponed, leaving counsel with insufficient time to do the necessary prepatory [sic] work.”

      . Rule 218 of the Pennsylvania Rules of Civil Procedure provides:
      Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion.

      . Continuance of the case at this juncture would have resulted in a delay of six months.


text:
    682 A.2d 347
    COMMONWEALTH of Pennsylvania, Appellant, v. Paul C. MORROW, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued June 13, 1996.
    Filed Aug. 7, 1996.

      J. Karen Arnold, Assistant District Attorney, Bellefonte, for Commonwealth, appellant.
    Deborah T. Lux, Public Defender, Bellefonte, for appellee.

      Before TAMILIA and JOHNSON, JJ., and MONTEMURO, J.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge:

This is a Commonwealth appeal from an order of the Court of Common Pleas of Centre County dismissing Appellant’s complaint against Appellee, Paul C. Morrow, Jr., as barred by the statute of limitations. For the following reasons, we reverse.

The victim, J.K., has been in the custody of her maternal grandmother, Joan Gummo, since she was three months old. One evening in 1990 or 1991, Gummo left the child, then five years old, with her biological mother, Robin Lucas, to attend a bowling tournament. When J.K. was dropped off around 6:15 p.m., her stepfather, her four siblings, and Appellee were also present at Lucas’ home.

At some point during the evening, J.K. was left alone with Appellee. It is not clear where Lucas or the victim’s stepfather were at this time. When Gummo picked her granddaughter up at around 9:00 p.m., the child told Gummo that while she was alone with Appellee he had touched her on the leg. Gummo immediately informed Lucas of the accusation but made no effort to contact the police. The record reveals that J.K. did not disclose the full extent of the touching until November of 1994; on December 21, 1994, Appellee was arrested on charges of indecent assault.

Through testimony at Appellee’s preliminary hearing, the timing of the incident was fixed at a point during 1990 or 1991, and the subsequent Bill of Information accused Appellee of having committed the offenses during that period. On February 15, 1995, Appellee filed a motion requesting dismissal of the charges for violation of . the applicable statute of limitations. On March 27, 1995, the day Appellee’s motion was to be heard, the Commonwealth notified Appellee in writing of its intent to toll the two year limitations period under 42 Pa.C.S.A. § 5554(3) .

At the preliminary hearing, the trial court rejected the Commonwealth’s attempt to toll the statute and granted Appellee’s motion to dismiss. Relying on Commonwealth v. Bethlehem, 391 Pa.Super. 162, 165, 570 A.2d 563, 565 (1989), alloc. denied, 525 Pa. 610, 577 A.2d 542 (1990), and Commonwealth v. Perry, 403 Pa.Super. 212, 588 A.2d 917 (1991), the court concluded that the Commonwealth was required to notify Appellee of its intent to invoke the tolling provision in the complaint itself or within a reasonable time before trial. It found that the Commonwealth had failed to notify Appellee timely of its intent to toll the statute until the date of the hearing before the court on Appellee’s motion to dismiss, and thus that the limitations period had run. The order of dismissal was entered on April 7, 1995, giving rise to the instant appeal.

In its appeal, the Commonwealth raises the following question for our consideration: Whether the lower court in this case erred as a matter of law in determining that the charges filed against Appellee must be dismissed as time barred.

The Commonwealth argues that the trial court erred in dismissing the charges against Appellee as time barred because under 42 Pa.C.S.A. § 5552(c)(3) the charges were exempt from the statute of limitations. Section 5552(c) provides in pertinent part:

(c) Exceptions — If the period prescribed in subsection (a) [the general two year period] ... has expired, a prosecution may nevertheless be commenced for:
(3) any sexual offense committed against a minor who is less than 18 years of age any time up to the period of limitation provided by law after the minor has reached 18 years of age.

42 Pa.C.S.A. § 5552(c)(3).

Because Appellee’s victim was and still is under the age of eighteen, the charges against him are not subject to the normal two-year statute of limitations period as set forth in 42 Pa.C.S.A. § 5552(a). The question then becomes whether the trial court’s conclusion as to lack of notice was a correct statement of the Commonwealth’s responsibility. We find that it is not.

We find controlling on the court’s determination of untimely/improper notice our Supreme Court’s decision in Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980), which holds that:

The fact that the Commonwealth did not allege in the [complaint] that it would seek to toll the statute of limitations is of no consequence [if] there was no prejudice to [defendant]. The Commonwealth did inform [Appellee] of the tolling of the statute of limitations when the Commonwealth filed its answer to [Appellee’s] motion to dismiss the complaint ... As long as a defendant, some reasonable time before trial, is appraised (sic) that the Commonwealth will seek to toll the statute of limitations, the due process requirements of notice are met.

Id. at 217-218, 413 A.2d at 1092.

The trial court found that the Commonwealth gave no notice prior to the pre-trial hearing that it intended to toll the statute. In fact, Appellee necessarily had notice from the complaint, albeit not specifically averred, that the limitations exception would apply as the victim is clearly described as under 14 years of age. See, Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1980). See also, Commonwealth v. Cruz, 355 Pa.Super. 176, 512 A.2d 1270 (1986). Moreover, the proper procedure for raising a statute of limitations defense is by means of an omnibus pretrial motion. Common wealth v. Danish, 501 Pa. 15, 459 A.2d 727 (1983). The Commonwealth responded to this motion with written notice of intention to toll the statute, which was examined during the pre-trial hearing. There is nothing on the record to indicate that a trial date had even been set at this point, much less that the Commonwealth had failed to indicate its intentions early enough to satisfy due process. No prejudice could have accrued to Appellee, who was adequately and timely informed of the Commonwealth’s intentions. Accordingly, we find that the trial court erred in dismissing the charges on the basis of inadequate or belated notice.

Appellee argues that the Commonwealth failed to prove the exception under § 5552(c)(3) was effective at the time of the alleged offense. However, the Commonwealth has no obligation to make such a showing. “[W]here the legislature amends a statute of limitations to provide a longer limitations period ... before the prior limitations period has expired, in the absence of language in the statute to the contrary, the amendments will be construed so as to extend the period within which the prosecution is to be commenced.” Commonwealth v. Thek, 376 Pa.Super. 390, 401, 546 A.2d 83, 89 (1988). In Commonwealth v. Harvey, 374 Pa.Super. 289, 542 A.2d 1027 (1988), this court recognized that where the appellant had not yet obtained a complete defense of the statute of limitations by the time the new statute of limitations became effective and the prosecution was not yet time-barred, the legislature acted within its authority when it extended the period during which the prosecution had to be commenced. Harvey, 374 Pa.Super. at 297, 542 A.2d at 1031. Therefore, the Commonwealth needed only to show that at the time § 5552(c)(3) took effect, an action against Appellee could have been lawfully maintained.

As stated earlier, under the general rule of § 5552(a) the action against Appellee would have had to be commenced within two years. The Commonwealth was able to establish that the alleged crime took place in 1990 or 1991. Accordingly, even assuming the earliest possible date for commission of the offenses here, the limitation period on charges brought pursuant to § 5552(a) would not have expired until at least 1992. Since the effective date of § 5552(c)(3) was February 17,1991, the crimes were committed at most only a year and a half after § 5552(c)(3) was enacted. Therefore, the Commonwealth’s action against Appellee gains the benefit of this exception.

Appellee also argues that application of § 5552(c)(3) is limited to situations where victims who were subject to sexual abuse by members of the family or other household residents have reached the age of majority and wish to bring an action on them own. We disagree. The plain language of this statute does not limit the exception to actions against family members. Section § 5552(c)(3) specifically states that it works as an exception to the statute of limitations for any sexual offense committed against a minor. When language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning. Commonwealth v. Larkin, 518 Pa. 225, 232-233, 542 A.2d 1324, 1328 (1988); Commonwealth v. Bell, 512 Pa. 334, 339-340, 516 A.2d 1172, 1175 (1986); Statutory Construction Act 1 Pa.C.S. § 1921(b).

We conclude that under § 5552(c)(3), the Commonwealth may maintain an action against Appellee, and, therefore, the trial court’s decision to dismiss this claim must be reversed.

Reversed and remanded for proceedings consistent with this Opinion.

      . 42 Pa.C.S.A. § 5554 provides in pertinent part: Except as provided by section 5553(e) [pertaining to summary offenses involving motor vehicles] ... the period of limitation does not run during any time when:
      H: # sit í-í >}s sjs
      (3) a child is under 18 years of age, where the crime involves 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 house as the child, or a paramour of the child's parent.

      . While the Commonwealth failed to invoke § 5552(c)(3) in opposition to Appellee's motion for dismissal, it was an error of law by the trial court not to apply this provision. Moreover, the Appellee never objected to the Commonwealth's attempt to use it on appeal. Therefore, we have not addressed the issue whether the Commonwealth waived its right to invoke § 5552(c)(3) by failing to present it at Appellee’s pretrial motion.