text:
    552 A.2d 1099
    COMMONWEALTH of Pennsylvania, Appellee, v. William HOKE, II, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 26, 1988.
    Filed Jan. 12, 1989.

      Walter M. Phillips, Jr., Philadelphia, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence of March 18, 1988, after a jury trial regarding a November 28, 1986, automobile accident. The accident occurred on Post Road in a residential development of Northhampton Township, Bucks County and resulted in a fatal head injury to the victim, Dr. Stephen Chartan. The jury convicted the appellant of aggravated assault, recklessly endangering another person, and leaving the scene of an accident involving death or personal injury. He was acquitted of the charge of involuntary manslaughter, and simple assault. For the reasons herein set forth, we affirm.

The pertinent facts are as follows. The appellant stopped his blue Corvair on Post Road before approaching a mound of gravel that traversed the width of the street outside the victim’s house. Automobiles frequently drove over nearby lawns to pass the gravel piled in the road. In order to circumvent the gravel, appellant drove his vehicle over Dr. Chartan’s lawn, and then re-entered the roadway.

At this juncture an Oldsmobile backed out of a Post Road residence and parked in the middle of the street, approximately 50 feet in front of the appellant’s car. Dr. Chartan emerged from the vehicle which remained parked on Post Road. As Dr. Chartan approached appellant’s vehicle, appellant began to apologize for driving over the lawn. A discussion ensued in which Dr. Chartan requested appellant produce a license and vehicle registration. The appellant refused to comply with the request.

As Dr. Chartan returned to his vehicle, appellant proceeded to leave the scene by driving in the direction of Dr. Chartan’s car. Dr. Chartan either jumped or was forced onto the hood of appellant’s Corvair. He affixed himself to the hood by grabbing the wiper blades. After a jump or fall to the pavement, Dr. Chartan’s body was found approximately 100 feet from his Oldsmobile. As appellant fled the scene of accident, he observed in his rear view mirror the victim lying motionless in the street, but proceeded with his plans for the evening by visiting the homes of his parents and girlfriend. Appellant mentioned the incident to no one.

Appellant raises five issues for us to consider: 1) The trial court erred in not granting motion for a mistrial after a court employee mistakenly submitted, to a deliberating jury, an unadmitted exhibit of evidence in the nature of a scaled diagram of the accident scene; 2) The Commonwealth’s failure to preserve an unadmitted exhibit for the appellate process denies meaningful appellate review and warrants a new trial; 3) The evidence was insufficient to support a guilty verdict to the charge of aggravated assault; 4) The trial court erred in denying appellant’s request to charge the jury on the defense of justification for leaving the scene of an accident; and 5) The trial court erred by charging the jury that it could consider appellant’s flight from the scene of the accident as evidence of consciousness of guilt. We will deal with them seriatim.

Appellant’s first argument is that the trial court erred in not granting appellant’s motion for a mistrial after a court employee mistakenly submitted, to a deliberating jury, an unadmitted exhibit of evidence in the nature of a scaled diagram of the accident scene. Before evaluating the effect of the mistake, we must analyze the overall context in which it occurred.

The diagram contained several pieces of information relevant to the Commonwealth’s case. It was used as an exhibit during the testimony of Officer James Caldwell. However, the diagram was not admitted into evidence because of the presence of a skid mark on the diagram. The skid mark was discovered by the police two days after the accident. Appellant objected to the fact the Commonwealth could not offer expert testimony to connect the skid mark to the vehicle of the appellant or victim. The lower court properly sustained the objection. Consequently, the diagram was not admitted into evidence.

Nevertheless, during jury deliberations a court employee mistakenly gave the unadmitted evidence to the jury. Upon learning of the error, the trial judge immediately directed the diagram be removed from the jury room. It is estimated the evidence remained in the jury room for approximately five to eight minutes. Counsel for appellant argues the error was so prejudicial it resulted in the denial of a fair trial for his client. After careful consideration of the entire record, we disagree.

The Court has never ruled on the factual circumstances of this particular issue. However, a myriad of prior cases has set forth the legal standard used to rule on issues in which unauthorized material enters the jury room.

For example, in Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984), we reviewed the issue of whether the appellant was entitled to a new trial because the jury foreman took notes when the trial court, upon jury request, repeated the elements of the crime charged. The court said it is improper for a juror to take notes during a trial and use the notes in the jury room. It further ruled that since the appellant did not introduce competent evidence to establish prejudice from such conduct, he was not entitled to a new trial. Id., 336 Pa.Superior Ct. at 406, 485 A.2d at 1144. See also, Pa.R.Crim.P. 1113, Commonwealth v. Pierce, 453 Pa. 319, 309 A.2d 371 (1973).

A long line of Pennsylvania cases has held that the misconduct of a juror must result in a prejudicial effect upon the defendant to justify a new trial. Any irregularity or misconduct on the part of a juror during the trial will not warrant a new trial unless it appears that the act complained of actually prejudiced the rights of the parties involved. Fisher v. Strader, 399 Pa. 222, 160 A.2d 203 (1960). See also, Friedman v. Ralph Brothers Inc., 314 Pa. 247, 171 A. 900 (1934), Commonwealth v. Filer, 249 Pa. 171, 94 A. 822 (1915). See, generally, Pierce, 309 A.2d at 372.

Granted, in the case sub judice, the mistake is not attributed to the actions of a juror, but rather a court employee who improperly submitted the diagram to the jury. Nonetheless, we are of the opinion that the legal standard enunciated in the aforementioned cases applies to situations where unadmitted exhibits somehow find their way into a jury room through improper actions of court personnel. Thus, when exhibits not in evidence are given to the jury by court personnel, a new trial will not be ordered unless it is shown the evidence was so prejudicial that the defendant was denied a fair trial.

In the case on hand, the diagram in question was marked for identification purposes as Commonwealth’s Exhibit # 9 (C-9). It was not admitted into evidence. In fact, the trial court sustained appellant’s objection when the Commonwealth was unable to offer expert evidence connecting a skid mark on the diagram to appellant’s vehicle. However, during Officer Caldwell’s testimony the jury had a clear view of the diagram as the Commonwealth made references to it. The skid mark remained unexplained to the jury, and the diagram lacked any identifying references to the skid mark.

After the exhibit was discovered in the domain of the jury room during deliberations, the trial judge immediately ordered its removal. The estimated time the diagram remained in the jury room totaled only five to eight minutes. Immediately thereafter, the trial judge inquired whether the jurors could continue deliberations without reference to the unadmitted exhibit. The foreperson informed the trial court that the jury could definitely proceed without reference to the diagram. The trial judge then reswore the jury with the cautionary instruction that their deliberations must not include any reference to the diagram.

In summation, the jurors had a prior exposure to the exhibit during the trial as the Commonwealth made references to it. At the outset of deliberations it entered the jury room for a relatively inconsequential period of time. Precautionary instructions were given to the jury immediately after the exhibit was removed to ensure it would not be a factor in the jury’s decision. Prejudice is sine qua non of the appellant’s right to a new trial. Under the factual circumstances of the case at bar, we find the presence of the diagram in the jury room had no prejudicial effect on appellant’s right to a fair trial.

Appellant’s next argument is that the Commonwealth’s failure to preserve the unadmitted exhibit for the appellate process denies meaningful appellate review and warrants a new trial. We disagree.

The appellant failed to raise this issue before the trial court, and therefore it has not been properly preserved for appeal. However, we shall briefly discuss the matter due to its direct relevance to our ruling on appellant’s first argument.

In order to assure a defendant’s right to appeal will not be an illusory right, we require he or she receive a full transcript or other equivalent picture of the proceedings. Meaningful appellate review is otherwise impossible, and fairness dictates a new trial be granted. Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973). The burden is on the prosecution to make available a full record or its equivalent. Id. 304 A.2d at 482.

In the case on hand the Commonwealth offered a substitute two-page version of Exhibit C-9 taken from police investigative files. Moreover, the substitute copy of the diagram matches the verbal description contained in the notes of testimony.

THE COURT: I looked at it carefully. In and of itself it contains no English language with reference to any mark on it. There are some modest notations. The location of the mark which was referred to earlier is totally ambiguous, and didn’t specify anything whatsoever____
MR. PHILLIPS: May I state for the record, Your Honor, the markup on the diagram, so the record is clear, is on the Post Road between 104 and 108, and next to a vehicle marker which appears in the diagram.
THE COURT: Which vehicle marker was to represent the location of the victim’s vehicle when it was at rest?
MR. PHILLIPS: Your Honor, because I think that mark contends where the victim’s vehicle was when it was at rest was on the other side of—
THE COURT: I don’t know about that. But I see some kind of representation of a vehicle there. (N.T. 11/28/87 p. 242)

“Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.” Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978), quoting Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).

Instantly, the description in the foregoing notes of testimony adequately describes the substituted diagram. The skid mark in question contains no label or written reference whatsoever and is located between 104 and 108 Post Road. Other notations appear on the substitute diagram such as street addresses, the location of the gravel pile, and a vehicle marker representing the victim’s car located between 104 and 108 Post Road.

In our view, the substitute version of the diagram which we have used in reviewing this appeal adequately matches the description, of the original diagram contained in the notes of testimony. As such, we find the appellant has not been denied meaningful appellate review by the loss of the original diagram.

The third argument appellant proffers is that the evidence was insufficient to support a guilty verdict to the charge of aggravated assault.

In determining whether evidence is sufficient to support a conviction we must accept as true all evidence, and reasonable inferences therefrom, upon which the fact finder could have based its verdict. Commonwealth v. Crawford, 334 Pa.Super. 630, 483 A.2d 916 (1984). We must view the evidence in the light most favorable to the verdict winner and draw all the reasonable inferences that the evidence permits in favor of the verdict winner. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). When reviewing the sufficiency of the evidence, an appellate court may not substitute its judgment for the jury’s. Commonwealth v. Carroll, 510 Pa. 299, 507 A.2d 819 (1986).

The crime of aggravated assault requires that a person act, “intentionally, knowingly, or recklessly under the circumstances manifesting extreme indifference to the value of human life”. Appellant contends the manner in which he operated his car at the time of the accident does not establish reckless conduct because there was no evidence of excessive speed. We are not persuaded by this argument.

The general requirements of culpability are set forth in 18 Pa.C.S.A. § 302. A careful purview of the entire record indicates that appellant’s mens rea and actus reus satisfy not only the reckless element of the crime, but also the intentional and knowing elements. Appellants extreme indifference to the value of human life was adducable at trial during the Commonwealth’s cross-examination.

Q. When Dr. Chartan was on the hood of your car, isn’t it a fact that you just wanted him to disappear?
A. Yes. ...
Q. You were aware of the potential danger to Dr. Char-tan while he was on the hood of your car, weren’t you?
A. Yes. ...
Q. Would you agree that he could have been on your car for a distance as long as 99 feet?
A. Could have been. ...
Q. But you wanted him to disappear?
A. I wanted him off the car.
Q. You wanted him off the car and you wanted him off the car because you were upset about the trouble that you might be in?
A. Yes.
(N.T. 4/28/87 p. 191-194)

Despite admitting awareness of the potential danger to Dr. Chartan, appellant made a conscious decision to continue driving approximately 100 feet with the victim perched on the hood. Clearly, appellant intentionally engaged in the conduct of driving his car forward, knowing such conduct was practically certain to cause bodily injury, if not death, to the victim. Not only were appellant’s actions knowing and intentional, but certainly the jury could find that his decision to continue driving forward, with the intention the victim “disappear” from the hood, was in fact a reckless act. Therefore, we find the evidence sufficient to support the jury’s determination that the appellant was guilty of aggravated assault.

Appellant’s next argument is that the trial court erred in denying his request to charge the jury on the defense of justification for leaving the scene of an accident. He maintains there was sufficient evidence in the record to support the charge. We disagree.

Appellant has failed to establish the requirements that would entitle him to the charge. They are as follows:

(a) General rule.— Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(b) Choice of evils.— When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

18 Pa.C.S.A. § 503.

In order to be entitled to an instruction on justification as a defense to a crime charged, the actor must first offer evidence that will show he was faced with a clear and imminent harm, not one which is debatable or speculative. Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985).

The record reveals the appellant was in the protective confines of his vehicle when Dr. Chartan approached the Corvair. Dr. Chartan did not verbally or physically threaten the appellant. In fact, he returned to his Oldsmobile after appellant refused to produce a license and vehicle registration.

Appellant testified Dr. Chartan jumped onto the hood of the Corvair as he started to drive away from the initial encounter. However, on cross-examination the Commonwealth indicated the victim may have been forced onto the hood as appellant’s car passed within a few feet of the victim’s automobile. Thus, ambiguity exists as to the identity of the actual aggressor. Nonetheless, after the victim fell or jumped from the Corvair, appellant observed in his rear view mirror Dr. Chartan lying still in the street.

Clearly, any harm that might have befallen appellant was indeed debatable and speculative. No verbal or physical threats were made prior to the accident. Appellant observed the victim lying motionless on the ground after the tragic mishap. Common sense indicates that serious injury is likely to occur after a fall or jump from a moving vehicle traveling at even a modest speed. Unfortunately, Dr. Char-tan sustained fatal wounds from the incident.

As such, we find no merit in appellant’s contention that following the accident he was faced with clear and imminent harm to his personal safety. We therefore must turn aside appellant’s argument that he was justified in leaving the scene of the accident.

Appellant’s final argument is that the trial court erred when it charged the jury that it could consider appellant’s flight from the scene of the accident as evidence of consciousness of guilt. He maintains there is no evidence proving his departure from the scene was motivated by the belief law enforcement officials would seek him in connection with the accident. We are not persuaded by this argument.

A thorough perusal of the record shows there was sufficient circumstantial evidence to prove the appellant knew he was or would be accused of committing a crime. Commonwealth v. Hailey, 332 Pa.Super. 167, 480 A.2d 1240 (1984). See also, Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969).

Appellant saw the victim lying still on the ground after the accident. Nonetheless, he left the scene and continued with his social plans for the evening. He visited the house of his parents, and then his girlfriend. At no time did he mention the incident to anyone. Doubtless, appellant was aware he committed a crime and was conscious of guilt. For the foregoing reasons we must deny appellant’s fifth and final argument.

In conclusion, we find the presence of the unadmitted diagram in the jury room did not have a prejudicial effect upon appellant’s right to a fair trial. Second, appellant has not been denied meaningful appellant review by the loss of the original diagram introduced as an exhibit at the trial. Third, the evidence was sufficient to support the jury’s determination that the appellant was guilty of aggravated assault. Fourth, the trial court did not err in denying appellant’s request to charge the jury on the defense of justification for leaving the scene of an accident. And finally, the trial court did not err in charging the jury that it could consider appellant’s flight from the scene of the accident as evidence of consciousness of guilt.

JUDGMENT AFFIRMED.

      . Appellant was sentenced on March 18, 1988, to the Bucks County Correctional Facility to not less than eleven and one-half months nor more than four years eleven months for the charge of aggravated assault. For the offense of leaving the scene of an accident appellant was sentenced to prison for not less than six months nor more than twelve months, to run concurrently with the sentence imposed on aggravated assault. For the purposes of sentencing, a charge of simple assault merged into the aggravated assault charge.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2705.

      . 75 Pa.C.S.A. § 3742.

      . 18 Pa.C.S.A. § 2504.

      . 18 Pa.C.S.A. § 2701.

      . On May 22, 1988, appellant filed post trial motions for a new trial and in arrest of judgment. They were denied by order of February 26, 1988. On March 4, 1988, appellant petitioned the trial court for permission to file supplemental post trial motions. They were denied by order of May 2, 1988. We will address the issues raised in the supplemental post trial motions even though a timely appeal to this Court was filed on March 18, 1988.

      . Appellant testified that after Dr. Chartan "jumped off” of the moving vehicle, he "sped up and drove away”. (N.T. 4/28/87 p. 176, 177)

      . The original exhibit was lost. However, the Commonwealth offered a two-page substitute version from the police file which we have used in reviewing this appeal.

      . Pa.R.Crim.P. 1114 states that: "... the jury may take with it such exhibits as the trial judge deems proper." The intent of Rule 1114 was for the trial judge to exercise such discretion with exhibits properly admitted into evidence, and prior to the start of deliberations. See Commonwealth v. Schwartz, 178 Pa.Super. 434, 115 A.2d 826 (1955).
      The case at bar required the trial judge to exercise discretion with an exhibit not properly admitted into evidence, and after the jury had started its deliberations. Clearly, the factual circumstances of the instant case do not fall within the purview of Rule 1114.

      . 18 Pa.C.S.A. § 2702(a)(1).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    552 A.2d 1105
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael J. BRION, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1988.
    Filed Jan. 12, 1989.
    Amy L. Weber, Assistant District Attorney, Chambers-burg, for Com., appellant.
    Angela C. Lovecchio, Assistant Public Defender, Williamsport, for appellee.

      Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Lycoming County Court of Common Pleas which granted the appellee’s motion for new trial and suppression of electronic surveillance evidence.

Herein, we áre required to review recent developments in the law concerning the electronic surveillance technique of one-party warrantless consensual monitoring. The Commonwealth contends that “the court erred in granting a new trial on the basis that Article I, Section 8 of the Pennsylvania Constitution was violated by the Commonwealth’s failure to obtain a search warrant based upon probable cause before sending a confidential informant into Appellee’s home to electronically record his conversations and transmit them back to the police[.]” We agree.

The record reveals that, on March 13, 1984, the police sent a confidential informant to purchase approximately fifteen grams of marijuana from the appellee, Michael Brion, at his residence. During the purchase, the informant was wearing a consensual wire in order to record electronically any conversation. As a result of the investigation, the appellee was charged with one count of possession of marijuana and one count of delivery of marijuana.

Prior to trial, the appellee filed a timely motion to suppress the tape recording of the transaction between himself and the informant. After a hearing, the motion was denied, and the recording was introduced into evidence at trial. Following a bench trial on October 27, 1987, the appellant was found guilty on all charges. Post-verdict motions alleging that the lower court erred in failing to suppress the tape recording were filed. Relying on Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987), the trial court granted the appellee’s motion for a new trial, and this appeal followed.

The Superior Court’s en banc decision in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) directly addressed the legality of the technique of electronic surveillance know as “participant monitoring.” We have since summarized the Schaeffer decision as follows:

In Commonwealth v. Schaeffer, an en banc panel of this Court held that the interception and recording of a person’s words is a search and seizure. This Court in Schaeffer then proceeded to hold that Pennsylvania State Constitution requires a warrant for participant monitoring in the home. The home is regarded as a place in which a person’s expectations of privacy are of the highest degree. A person speaking in his home certainly speaks in circumstances justifying a belief that the police are not listening in as an “uninvited ear” through an alter ego, i.e., the informant. Schaeffer, 370 Pa.Super at [209] — [211], 536 A.2d at 369-370.

Commonwealth v. Phillips, 373 Pa.Super. 193, 540 A.2d 933, 936 (1988) (refused to extend Schaeffer decision to recordings made outside the home in an automobile).

In Schaeffer, we held that “article I, section 8 of our constitution, which protects the right of the people to be secure from unreasonable searches and seizures, requires a warrant based upon probable cause for the electronic seizure of such communications.” Instantly, the facts sub judice are indistinguishable from those found in Schaeffer. Therefor, applying our decision in Schaeffer, the lower court, based upon ample precedent, correctly granted the appellee’s motion for a new trial.

However, on October 17, 1988, our Supreme Court, handed down Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988) and Commonwealth v. Rodriguez, 519 Pa. 415, 548 A.2d 1211 (1988). In Blystone, our Supreme Court held that a warrantless one-party consensual electronic interception, as authorized by 18 Pa.C.S.A. § 5704, does not violate article I, section 8 of the Pennsylvania Constitution. Our Supreme Court then followed the Blystone holding in Rodriguez. Although our decision in Schaeffer focused solely on the fact that the interception occurred in the defendant’s home and neither Blystone nor Rodriguez mentions that factor, the broad language of Blystone and its subsequent application in Rodriguez overrules Schaeffer sub silentio. Therefor, we are constrained to hold that the trial court erred when it granted the appellee’s motion for a new trial based upon our decision in Schaeffer.

It is well settled that one-party consensual interceptions and transmissions do not offend the Fourth Amendment. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) reh. denied, 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 (1971) (plurality opinion). However, state courts are free to provide broader protections than those afforded by the federal constitution based upon state constitutions. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) reh. denied, 386 U.S. 988, 87 S.Ct. 1283, 18 L.Ed.2d 243 (1967); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). That is exactly what this court did in Schaeffer when we determined that a warrantless one-party consensual interception occurring in the defendant’s home violates his right to privacy under the Pennsylvania Constitution.

However, our Supreme Court, in Blystone, determined that the Pennsylvania Constitution affords no greater protection than the Fourth Amendment of the United States Constitution. In so holding, our Supreme Court stated:

The United States Supreme Court has held that a person cannot have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal that conversation to the police. Lopez v. United States, 373 U.S. 427 [83 S.Ct. 1381, 10 L.Ed.2d 462] (1963) reh. denied. 375 U.S. 870 [84 S.Ct. 26, 11 L.Ed.2d 99] (1963). Furthermore, as noted above, the Court has held that one party interceptions do not violate the Fourth Amendment. United States v. Caceres, supra.
Basically, the Supreme Court has recognized the simple fact that a thing remains secret until it is told to other ears, after which one cannot command its keeping. What was private is now on other lips and can no longer belong to the teller. What one choses to do with another’s secrets may differ from the expectation of the teller, but it is no longer his secret. How, when, and to whom the confidant discloses the confidence is his choosing. He may whisper it, write it, or in modern times immediately broadcast it as he hears it.
As applied to this case the above cited cases are particularly significant for two reasons: one, the Pennsylvania wiretapping statute is based on its federal counterpart, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20, the latter of which was cited with approval by the United States Supreme Court in Caceres, id. [440 U.S.] at 742, [99 S.Ct. at 1466]; and two, it is the federal body of law from which we derive our test for determining what actions fall under the rubric of a privacy right, Katz [v. United States], supra [389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ], (Concurring Opinion, Harlan, J.).
Although, unless dictated by Supremacy Clause considerations, we are not bound to follow the federal interpretation of the federal act or the federal constitution in the interpretation of our state statute and/or constitution, we are in this case, persuaded by the rationale behind those decisions.

Blystone, 519 Pa. at 464-465, 549 A.2d at 87-88 (footnotes included in original).

Citing the Blystone holding, the Rodriguez court summarily held that “section 5704(2)(ii) of Pennsylvania’s wiretapping statute, authorizing one-party consensual interceptions, does not offend Article I § 8 of the Pennsylvania Constitution.”

While not expressly overruling Schaeffer, the broad sweeping language of Blystone clearly overrules our prior decision. In fact, our Supreme Court intimated that, in Blystone, it was overruling Schaeffer. The appellant in Blystone raised the same argument that, as our Supreme Court noted, was accepted by this court in Schaeffer, i.e. the warrantless consensual monitoring, as authorized by the Wiretapping and Electronic Surveillance Act, violated his rights as guaranteed by Article I, § 8 of the Constitution of Pennsylvania. Blystone, 519 Pa. at 460, 549 A.2d at 86. Our Supreme Court also noted that, prior to Schaeffer, “no court in this Commonwealth had accepted the position espoused by the appellant.” Blystone, 519 Pa. at 462 n. 13, 549 A.2d at 86 n. 13. The Blystone court then proceeded to rule that the argument was not meritorious. Blystone, 519 Pa. at 460-465, 549 A.2d at 86-88. Our Supreme Court clearly did not except from its holding the factual situation where the warrantless participant monitoring occurred in the defendant’s home. Therefor, we must conclude that Blystone overrules our decision in Schaeffer.

In conclusion, we find that our Supreme Court has determined that warrantless participant monitoring does not violate a defendant’s rights guaranteed by the Pennsylvania Constitution. Further, our Supreme Court set forth an absolute rule without the limited exception created by our decision in Schaeffer requiring a warrant for participant monitoring in a defendant’s home. Therefor, we find that Schaeffer has been overruled by Blystone, and we must reverse the trial court’s decision to grant the appellee’s motion for a new trial. The decision of the trial court is reversed, the judgment is reinstated, and the case is remanded for sentencing.

We reverse and remand this matter for sentencing in accordance with this opinion. Jurisdiction relinquished.

      . The relevant portion of the Wiretapping and Electronic Surveillance Control Act reads as follows:
      § 5704 Exceptions to prohibition on interception and disclosure of communications.

      . Article I, § 8 of the Constitution of Pennsylvania provides:

        The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

      . Public Law 90-351, Title III, § 802, June 19, 1968, 82 Stat. 212.

      . See abo, Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); United States v. Cianfrani, 573 F.2d 835 (3d Cir.1978).


text:
    552 A.2d 1109
    Percy DALLAS and Josephine Dallas, v. F.M. OXFORD INC., John W Merriman, James K. Stone, Delaplaine McDaniel Ind. and d/b/a McStome, M.A. Kravitz Co. a/k/a Kraftco Inc. and F.M.L. Assoc. Ltd., Appellant. Percy DALLAS and Josephine Dallas, v. F.M. OXFORD INC., John W Merriman, James K. Stone, Delaplaine McDaniel individually and d/b/a McStome and Otis Elevator Co. and M.A. Kravitz Co. a/k/a Kraftco Inc. and F.M.L. Assoc. Ltd. Appeal of OTIS ELEVATOR CO. Percy DALLAS and Josephine Dallas, v. F.M. OXFORD INC., John W Merriman, James K. Stone, Delaplaine McDaniel Ind. and d/b/a McStome, Otis Elevator Co., M.A. Kravitz Co. a/k/a Kraftco Inc. and F.M.L. Assoc. Ltd. Appeal of F.M. OXFORD INC., John W Merriman, James K. Stone, Delaplaine McDaniel Ind. and d/b/a McStome, M.A. Kravitz Co. a/k/a Kraftco Inc. and F.M.L. Assoc. Ltd.
    Superior Court of Pennsylvania.
    Argued June 20, 1988.
    Filed Jan. 13, 1989.

      Theodore H. Lunine, Philadelphia, for F.M. Oxford Inc., et al.
    Kevin Connors, Philadelphia, for Otis Elevator Co.
    Christian C. Thompson, Philadelphia, for Percy and Josephine Dallas.
    Before MONTEMURO, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

The plaintiffs (Percy and Josephine Dallas) recovered a verdict for damages for personal injuries suffered by Mr. Dallas when he was struck by the doors closing on an elevator in the Oxford Valley One building in Langhome, Pennsylvania.

The court en banc denied motions for judgment n.o.v. and for a new trial by opinion, the judge who presided at the trial having resigned his office prior to ruling on post-verdict motions. The defendants appeal from the judgment entered on the verdict and assign various errors to the lower court’s refusal to grant judgment n.o.v. and/or a new trial. We affirm.

In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences to be derived therefrom, is to be considered in a light most favorable to the verdict-winner. Evans v. Otis Elevator Co., 403 Pa. 13, 17, 168 A.2d 573, 575 (1961). With the evidence viewed under such a standard, the material facts may be summarized as follows.

At approximately 11:30 a.m. on the 2nd day of December, 1977, Mr. Dallas and his wife entered the Oxford Valley One building. Their intention was to travel to the sixth floor and conduct business with a health insurance company. At the time, Mr. Dallas was 75 years old and walked with a cane to relieve the pressure on his arthritic knees. As the two entered the elevator, they did so without incident and ascended to the sixth floor. Mrs. Dallas stood about 12" to 18" from the door and her husband was “about a foot” behind her, a little to her left. There was no one else on the elevator.

As told by Mr. Dallas:

When the elevator reached the sixth floor, the doors opened, my wife stepped out and I followed her immediately. I had my left foot out on the floor, over the crevice from the elevator and the floor, and I took my cane out and put it out on the floor and I was in the process of stepping out, when my right foot was up in the air, my left foot was on the floor, taking the weight, that’s when I felt this hard hit on my shoulder.

It took Mrs. Dallas “no more than two or three seconds”' to exit, and the plaintiff was behind her. With his left shoulder being hit, this knocked him “sideways, to the right.” The left shoulder was at an angle and still within the elevator at the time of the accident. The force of the contact with the elevator door caused the plaintiff to fall on his right side to the floor. Medical aid was summoned and he was transported to the hospital, where x-rays showed a fractured right hip. Thereafter, the plaintiffs filed a six-count complaint in trespass sounding in strict products liability (Restatement (Second) of Torts, § 402A) and negligence. However, at trial it was disclosed that the cause of action under Section 402A was “waived”, and the case was proceeding solely on the negligence ground.

The plaintiffs’ expert (Martin S. Maurer) testified that the two-door elevator found in the building where the accident occurred was independently operated. It had a “safety edge” (made of rubber) that ran the length of each door, and, if contacted, would retract the doors to the open position. Likewise, a button located on the inside of the elevator, when depressed, would inhibit the doors from opening. No other safety device was present, despite the fact that a “photoelectric cell” was available as a safety feature on elevators since the late 1930’s. Further, the expert stated that the photoelectric cell could be affixed to existing elevators (between the outer and inner doors) at a moderate cost ($100.00). The light-sensitive cell would be positioned on two locations: (i) a few inches off of the landing; and (ii) approximately two feet above the initial installation.

As opined by the plaintiffs’ expert, had there been a photoelectric cell on the elevator, the accident would not have occurred. Even though this witness conceded, in response to questioning from the court, that he was not aware of any written standards requiring the installation of a photoelectric cell in elevators, he also stated that “the photoelectric devices are the common means of preventing incidents” such as took place with Mr. Dallas. He based this upon his “experience” and “good engineering design”. He knew of what he spoke since he was a licensed mechanical engineer and had designed an elevator for the space program and for a private concern.

For the sake of completeness, we wish to give an accounting of the defendants’ version of the case and law on the subject at hand. For example, the defendants’ witnesses recounted how there had never been any previous injuries sustained as a result of being struck by the elevator doors in the Oxford Valley One building. Nor was there any evidence that the elevator in question had not been licensed by the Commonwealth of Pennsylvania, Department of Labor and Industry, Elevator Division. In fact, the elevators in this Commonwealth are inspected quarterly, and the elevator here had met “all Department regulations.”

Lastly, the defendants’ expert testified that the standards of the American National Standard Institute (ANSI), of which he was a board member and helped promulgate some of its regulations regarding construction of elevator doors, had been complied with in all respects in the design of the elevator under scrutiny.

Of interest to this Court is the comment of the defendants’ expert that, of the approximately 5,000 elevators produced annually since 1970, about 60% had been equipped with only “safety edges.” And, that the elevator here was manufactured, constructed and installed in accordance with the industry standards. Moreover, it was his opinion that the accident involving Mr. Dallas would not have been prevented had a photoelectric cell been present. He felt that the plaintiffs’ failure to utilize the safety features in place (touching of the rubberized “safety edges” on the doors or the depression of the “hold button”) played a role in the accident.

As for ANSI standards, contained specifically in paragraph 1.12.5 of its rules, the only requirement for automatic elevators was that they have a “reopening device.” This paragraph has not been altered, and the expert should know because he is chairman of the subcommittee responsible for overseeing this aspect of ANSI standards. As a result thereof, and as stated previously, of the 5,000 elevators built in this country yearly since 1970, only 60% had “safety edges.” The expert furthered proffered “they would not have had [a] photoelectric cell. It’s like wearing a belt and suspenders____”

With the completion of the defendants’ expert’s testimony, the case came to a close. As for the charge read to the jury, a portion recited the standard of care owed by the defendant/F.M. Oxford, Inc. to the plaintiffs; to-wit:

Under the law, a defendant who owns and operates a building in which elevators are used also has a duty to provide persons using that elevator with the highest degree of protection that human knowledge, skill, foresight and care can provide, although this legal duty does not make the owner absolutely responsible.

The defendant/F.M. Oxford, Inc. took exception to this charge when it was being requested by counsel for the plaintiffs in chambers. Nonetheless, the exception was denied, and the jury returned a verdict finding F.M. Oxford, Inc. 45% negligent, Otis Elevator Company 45% negligent and the plaintiffs contributorily negligent in the amount of 10%. Because of improperly elicited testimony from the plaintiffs wife, as to her receiving psychiatric care since the accident, the parties stipulated to the damages of $40,-000.00, a matter with which the jury was not to concern itself during its deliberations.

With the denial of post-verdict motions and the reduction of the verdict to judgment, this timely appeal followed and raises several issues for our evaluation. The first relates to whether the plaintiffs failed to provide direct proof that there was a deviation from the accepted standards in the industry as to the design of the elevator door system, and, therefore, failed to make out a case of negligence. (See F.M. Oxford, Inc., et al.’s Brief at 9-10; Otis Elevator Company’s Brief at 9)

We commence our assessment by observing that in this jurisdiction the “custom or practice of the industry” standard has been roundly criticized and generally disapproved. See Welsh v. Kleiderer, 440 Pa. 47, 269 A.2d 746 (1970); see also McKenzie v. Cost Brothers, Inc., 487 Pa. 303, 311, 409 A.2d 362, 366 (1979). In fact, our Supreme Court most recently discounted the applicability of the “custom or practice of the industry” standard in products liability cases. See Lewis v. Coffing Hoist Division, Duff-Norton Co., 515 Pa. 334, 528 A.2d 590 (1987). Accord Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988) (en banc).

However, the status of the “custom or practice of the industry” standard appears to be an open question in the negligence area of the law. For example, our Supreme Court has stated in the past that:

... Customary methods or conduct do not furnish a test which is conclusive or controlling on the question of negligence, or fix a standard by which negligence is to be gauged. The standard of due care is such care as a prudent person would exercise under the circumstances of the particular case, and conformity to customary or usual conduct or methods cannot amount to more than a circumstance to be considered together with other circumstances of the case in determining whether due care has been exercised: ...
“The common usage of the business is a test of negligence, but not a conclusive or controlling test”:____

MacDougall v. Penna. Power & Light Co., 311 Pa. 387, 397, 166 A. 589, 592 (1933). Our Supreme Court in McKenzie, supra, quoted the language reproduced from MacDougall, supra, to limit its use where an “inherently dangerous” condition existed, i.e., one does not need evidence of industry custom and practice in such a situation; if the act in question is obviously dangerous, then evidence of custom is inadmissible because custom cannot change the quality of the act.

Furthermore, our own Superior Court has condoned the admission of standards, be it through expert testimony or the introduction of private and governmental regulations regarding a particular business or industry. See, e.g., Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601 (1985) (Instructions on government and industry standards submitted by the defendants and the plaintiff were properly admitted; remanded for a new trial because trial court failed to instruct jury on the relevance of such standards to the issue of negligence); Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981) (Trial court erred in excluding evidence of customary practice of police in certain circumstances; customary practice is admissible to help the jury decide whether the defendant violated the duty of care it owed the plaintiff); Brogley v. Chambersburg Engineering Co., 306 Pa.Super. 316, 452 A.2d 743 (1982) (Evidence of OSHA regulations is admissible as a standard of care, the violation of which is evidence of negligence); Walheim v. Kirkpatrick, 305 Pa.Super. 590, 451 A.2d 1033 (1982) (Trial court committed error in not allowing expert to describe the accepted customs and standards for the safe use of trampolines).

Notwithstanding the continued use of the “custom and practice” standard in negligence cases, it still remains the law that:

Evidence of the customary practice within the industry although admissible is not essential to a finding of negligence. Indeed ... evidence of what usually is done is not necessarily what ought to be done, and is therefore not necessary to prove negligence. 294 F.Supp. at 654. See, e.g., McAdoo v. Autenreith’s Dollar Stores, 379 Pa. 387, 392, 109 A.2d 156 (1954); Maize v. Atlantic Ref. Co., 352 Pa. 51, 41 A.2d 850, 160 A.L.R. 449 (1945); Harper and James, The Law of Torts § 17.3 at p. 977-82 (1956).

Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1216 (3rd Cir.1970).

At bar, it is undisputed that the plaintiffs’ expert was unable to point to any written standards in the industry which dictated the installation of a photoelectric cell in elevators; he premised his opinion of such on his own “experience” and “good engineering design.” However, on this aspect of the case, we had evidence from the defendants’ expert that, as far as ANSI standards were concerned, there was no requirement regarding photoelectric cells, and that the defendants acted in accordance with 60% of the market when it came to constructing, manufacturing, designing and maintaining the elevator involved in the accident.

Because we find that the degree of care to be exercised in this particular instance (passenger elevator accessible to the public at large) was accurately stated by the trial court, the usage of the particular industry, and the obligations owed to the accompanying customer or patron of the product, is necessarily a question for the finder-of-fact. See Aquadro v. Crandall-McKenzie & Henderson, Inc,, 182 Pa.Super. 435, 439, 128 A.2d 147, 149 (1956). Stated otherwise, because of the manner in which the evidence was submitted (orally), and given the conflicting opinions of the experts on the question of the alternative safeguard suggested by the plaintiffs’ evidence, the issue of negligence was properly submitted to the jury for resolution. See Bethay v. Philadelphia Housing Authority, 271 Pa.Super. 366, 377, 413 A.2d 710, 715 (1979); see also Forry v. Gulf Oil Corp., 428 Pa. 334, 342, 237 A.2d 593, 598 (1968); Hemrock v. Peoples Natural Gas Co., 423 Pa. 259, 271-72, 223 A.2d 687, 693 (1966); Rubin v. Goldner, 380 Pa. 240, 243, 110 A.2d 237, 239 (1955); Maize v. Atlantic Refining Co., 352 Pa. 51, 57, 41 A.2d 850, 853 (1945); Fox v. Keystone Telephone Co., 326 Pa. 420, 427-28, 192 A. 116, 119 (1937); National Cash Register Co. v. Haak, 233 Pa.Super. 562, 573, 335 A.2d 407, 412 (1975); Aquadro, supra, 182 Pa.Super. at 439, 128 A.2d at 149; The T.J. Hooper Case, 60 F.2d 737, 740 (2nd Cir.1932); George v. Morgan Const. Co., 389 F.Supp. 253 (E.D.Pa.1975). In particular:

“It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability * * * The facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant.”

Hemrock, supra, 423 Pa. at 271-72, 223 A.2d at 693, quoting Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 138-39, 153 A.2d 477, 480 (1959).

We conclude, under the standard quoted from Smith, supra, that the jury was presented with sufficient evidence from which to infer that the defendants were negligent in failing to include a photoelectric cell on the elevator. See National Cash Register Co., supra, 233 Pa.Super. at 573-74, 335 A.2d at 412. Because of the nature of the product under scrutiny here (an elevator) and the standard of care associated therewith {see note 4, supra), we have no reservations in upholding the judgment of the court en banc. Compare Larkin v. May Dept. Stores, 153 F.Supp. 747 (W.D.Pa.1957) (Swinging doors); McAdoo v. Autenreith’s Dollar Stores, 379 Pa. 387, 109 A.2d 156 (1954) (semble).

The remaining issues proffered by the defendants have been reviewed and are found to be meritless and, accordingly, do not require further discussion.

JUDGMENT AFFIRMED.

      . The defendants, F.M. Oxford, Inc. John W. Merriman, James K. Stone and Delaplaine McDaniel, individually and doing business as defendant McStome, a general partnership, and defendant F.M.L. Associates, Ltd. jointly owned the Oxford Valley One building. As for defendant Otis Elevator Company, it built and installed the elevator in question and had a service contract with F.M. Oxford, Inc. to make quarterly inspections of the elevator used by the plaintiffs.

      . A photoelectric cell was defined as an electric device or component. It is light activated. If there is no beam of light striking the cell, i.e., the beam is interrupted, there is no motion and the doors are not capable of closing.

      . ANSI is an organization which oversees the many standards which exist in our technological society. Also, Pennsylvania was stated to have adopted ANSI standards for elevators. See Reproduced Record at 308a.

      . For the defendant/F.M. Oxford, Inc. as the owner/operator of the elevator, the trial court correctly instructed the jury that the duty owed was one of “the highest degree of care" to passengers. See McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 240, 420 A.2d 514, 519 (1980); Gabel v. 1528 Walnut St. Building Corp., 160 Pa.Super. 218, 221, 50 A.2d 751, 753 (1947). As for the defendant/Otis Elevator Co., the designer/installer of the elevator, it owed a duty to exercise “reasonable care” in its design of the elevator.

      . Otis Elevator Company’s final contention, i.e., the design of the elevator door was not negligently done and, thus, warranted a judgment n.o.v., is necessarily found to be wanting given our initial conclusion that compliance with standards in the industry does not exonerate one from a finding of negligence in failing to install a photoelectric cell on the elevator. The trial court stated as much in its charge to the jury. See Reproduced Record at 435a-436a.
      F.M. Oxford, Inc., et al., raise three additional questions. The first claims that the trial judge committed reversible error in not allowing it to cross-examine the plaintiffs’ expert on the question of the defectiveness of the elevator. This would have, supposedly, supported F.M. Oxford, Inc.’s cross-claim of indemnity or contribution against Otis Elevator Company under Restatement (Second) of Torts, § 402A criteria. It, purportedly, was still pursuing a Section 402A cause of action.
      To begin with, during trial all parties agreed that the case was to be tried solely on negligence grounds and the Section 402A portion of the suit was being "waived.” F.M. Oxford, Inc. gave no indication to dispel this notion. Thus, it will not be heard to complain now. Moreover, whether a different safety device might have been a better or preferable design under the circumstances goes to the issue of due care in making that choice and sounds in negligence, not strict liability. See Abdul-Warith v. Arthur G. McKee and Co., 488 F.Supp. 306, 314 (E.D.Pa.1980). The second issue (captioned under Paragraph II, Subparagraph B) is intertwined with the previous issue and, consequently, is denied as meritless.
      The last protestation of F.M. Oxford, Inc. seeks our abrogation of the "highest degree of care" standard in elevator cases. See note 4, supra. We are not inclined to alter the settled standard, and the defendant’s reference to Prosser, Law of Torts, 4th ed., p. 81 (that the standard is really not a departure from the reasonable man standard) is not persuasive.


text:
    552 A.2d 1114
    In the Matter of Tara CABRERA, a Minor. Appeal of Frank and Virginia INGRAM. In the Matter of Tara CABRERA, a Minor. Appeal of Tara Cabrera.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1988.
    Filed Jan. 13, 1989.

      Stuart J. Schatz, Norristown, for appellants (at 1799).
    Kenneth L. Klothen, Philadelphia, for appellant (at 2006).
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This case involves cross-appeals from the order (later reduced to judgment) entered in this matter on the 6th day of June, 1988, adjudicating Tara Cabrera dependent and appointing a guardian ad litem to consent to her blood-transfusion-therapy for a period of one year. We affirm.

The facts, unlike the legal conclusions to be drawn therefrom, are not in dispute and reveal that Frank and Virginia Ingram, on the 18th day of February, 1988, transported their six-year-old daughter Tara to Children’s Hospital of Philadelphia for diagnosis and treatment for her fever, limp and pain in her hip.

Dr. Kwaku Ohene-Frempong, the Director of the Sickle Cell Program and Hematology at Children’s Hospital of Philadelphia, was the attending physician for incoming patients diagnosed as having sickle-cell anemia. After a series of neurological and orthopedic tests, a CAT scan revealed evidence of “an old stroke” in Tara’s brain. Her symptoms were diagnosed as the recurrence of her initial stroke.

In order to calculate the extent of damage sustained by Tara, Dr. Frempong recommended a blood transfusion to reduce the number of sickle-cells in her system. This would avail the doctor the opportunity to gauge more accurately the damage caused by the stroke(s), and, thus, prescribe a course of treatment.

The Ingrams refused, on both medical and religious grounds, to give consent to the transfusions. As a result, Children’s Hospital of Philadelphia filed a petition with Common Pleas Court seeking its appointment as special guardian to Tara to consent to a series of blood transfusions.

A hearing was held on March 2, 1988, in which Doctor Frempong testified that Tara’s condition was consistent with other children with sickle-cell anemia who have had strokes and are not transfused, i.e., 70% of them will have a recurrent stroke and 80% of those recurrences will take place within the first three years after the initial stroke. As a consequence thereof, Doctor Frempong noted the likelihood of increased risk of crippling and mental retardation. As for the risk of death in such cases, he stated: “The risk of death is smaller in children and much higher” in adults. The “only” treatment presently available for the illness, as observed by Doctor Frempong, was blood transfusions, which, it was stated, would prevent strokes from recurring in 90% of the cases.

Albeit there are inherent risks in administering transfusions, Doctor Frempong believed it “may be the best of two evils” in the treatment of sickle-cell patients. Once the tests were conducted, the doctor would have a better idea of the damage to the blood vessels in the brain, and what risks would be involved if transfusions were not ordered.

Mrs. Ingram appeared at the hearing and voiced her objections to the transfusions. Her religious ground was linked to her being a Jehovah’s Witness, a tenet which does not subscribe to the use of blood in any form on the individual. As for her medical objections, she pointed to the fact that Doctor Frempong would not assure (“guarantee”) her that Tara would not die immediately after the transfusions. Since she perceived her daughter to be in good health, she saw no need for the transfusions.

The court disagreed with Mrs. Ingram and permitted Children’s Hospital of Philadelphia to conduct the transfusions to assess Tara’s brain damage, if any. Then, once this was completed, it could be determined whether transfusions would be in order for four years or more to minimize a recurrence of another stroke.

At the follow-up hearing held on April 5, 1988, Doctor Frempong testified that the results of Tara’s arteriogram indicated that she had blood vessel damage to the right and left sides of her brain. This type of damage was consistent with “sickle cell children who have had strokes.” As for Tara, who clearly showed signs of “major” vessel disease, Doctor Frempong opined that the probability of recurrence of a stroke would be in the 70-80 percentile range. In regard to the risks associated with the treatment to Tara in this case, the doctor stated:

We know for a fact this child has a very high risk for recurrent strokes and that with recurrence of strokes there is more brain damage, more potential for crippling brain damage and also mental retardation____[A]gainst all the risks, we still feel this is the best treatment available for children with sickle-cell disease who have had strokes. It is by no means the best one would have hoped for, but it is the only treatment available. (Emphasis added)

Before the court made its decision on whether to order additional transfusions, the parents of Tara were afforded the chance to secure opinions from other doctors as to alternative forms of treatment for this child. As a result thereof, a hearing was held on the 29th day of April, 1988, wherein Mrs. Ingram presented evidence from two doctors supposedly supportive of her contention that blood transfusions, and their inherent risks, were not the only means by which to minister to Tara’s condition.

The first physician was a Doctor Pourfar, a hematologist residing in New York City. Mrs. Ingram and Tara visited him, and he examined the patient and her hospital records. He recommended, in his two-page hand-written letter, that transfusions should be implemented only if Tara’s hemoglobin (Hb) level dropped below 7.5 grams. He noted that folic acid and aspirin should be continued to be administered to the patient.

The second doctor, one William H. Pogue, was a hematologist from New Britain, Connecticut, and he prepared a two-page typed report in which he made reference to alternative methods of treating Tara, e.g., aiitiplatelet agents (coumadin, aspirin and sulfinpyrazone). However, he conceded in his report that he could “find no evidence in the medical literature of any systematic study of alternative therapy.” In essence, it would appear that Doctor Pogue was espousing in his report the use of antiplatelet agents as an alternative therapeutic choice to blood transfusion therapy. Even though none had been tested, he believed the risk involved was no more acute than the present therapy with blood transfusion, the efficacy of which no one could “guarantee” in preventing another stroke.

When Doctor Frempong took the stand, he commented that Doctor Pourfar’s recommendation that Tara might need a transfusion only if her hemoglobin dropped below 7.5 was “utter nonsense.”

Since the average blood count for most patients is between 6.0 and 9.0, at any one time, about 40% would have hemoglobin that low and still be healthy and without the need for any blood transfusion. Thus, remarked Doctor Frempong, Doctor Pourfar “is confused about the reason why we may be recommending transfusions for Tara.” As for Doctor Pogue’s report, Doctor Frempong noted that some of the alternative therapies mentioned came from a study done at Children’s Hospital of Philadelphia. There, two patients were mentioned as having taken aspirin and sulfinpyrazone, but these were two patients who could not be transfused for various reasons. This treatment, observed Doctor Frempong, has never been tested in any research study or in any published study, and nobody has ever reported that such treatment would prevent strokes in a sickle-cell patient. It was mentioned simply as a fact about two patients. It was not cited as an alternative therapy that anybody should try. More particular, the doctor stated, the dispensation of folic acid, aspirin and coumadin in a sickle-cell case was considered to be a “risky” therapy since these medications dealt with the thinning of blood and sickle-cell disease was not a blood-clotting problem.

Lastly, Doctor Frempong mentioned that if Tara did not receive the transfusion therapy, albeit she would not be in “imminent danger of death”, the witness did think she was in “danger of recurrent strokes”. The consequences of which would be that Tara would be exposing herself, in a percentage range of 70% to 80%, to:

(a) losing her current level of intellectual functioning;

(b) becoming “physically crippled”;
(c) going blind, possibly; and
(d) losing her ability to speak.

In addition, the guardian ad litem was present and stated, after speaking with the people involved and members of the medical community (e.g., a Doctor Stuart and Doctor Frempong), the therapy described by Doctor Frempong for Tara was “the standard therapy which is recommended and ordered by experts in sickle-cell disease”. He was in favor of having transfusions administered to Tara since the state of medical knowledge indicated no effective alternative, i.e., hypertransfusion therapy was the “only” way to protect Tara.

After consideration of the aforementioned evidence, the court below denied Children’s Hospital of Philadelphia its petition seeking appointment as a special guardian for Tara. However, with the filing of exceptions to the order of court, a request for another hearing to present additional medical testimony was granted.

On May 25, 1988, a hearing was conducted in which Doctor Marie Jean Stuart, Chief of Hematology at Saint Christopher’s Hospital, testified that there was a 16%-18% chance that Tara would die within one week to one year following her last stroke if transfusion therapy was not commenced. She also believed that Tara had an 80% probability of having a recurrent stroke because of her having suffered two prior strokes without transfusion. Further, Tara was considered to be a candidate to suffer severe neurological deficiencies or other complications relating to stroke, i.e., death.

Doctor Stuart concurred in Doctor Frempong’s transfusion therapy as being the best medical treatment available. Likewise, she discounted the feasibility of alternative therapies, as was discussed in Doctor Pogue’s report, since none had been tested positive against sickle-cell anemia. More importantly, she characterized Tara’s condition as a “semi-emergency”, which she considered to be a situation where a person faces death within a week to a year after diagnosis of an ailment.

The end result of the hearing was the entry of the June 6, 1988, order appointing Saint Christopher’s Hospital as special guardian for the purpose of consenting to blood transfusion therapy for Tara for a period of one year only. This appeal followed.

The first issue we shall address, which appears at appeal No. 1799 Philadelphia 1988, concerns the Ingrams’ contention that the Commonwealth should not be able to compel their daughter Tara to undergo blood transfusions, given their religious objections as Jehovah’s Witnesses, in the absence of evidence that Tara’s life is in “immediate peril”.

In responding to the claim made, we begin with the fundamental premise that an individual’s right to hold and to practice his/her religious beliefs free from governmental interference is guaranteed by the First Amendment to the United States Constitution, its counterpart in this Commonwealth being Article 1, Section 3 of the Pennsylvania Constitution. See Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616, 622 (1985).

The guarantee of freedom of religion is intended to secure the rights of the individual as against the state. Underlying the guarantee is a principle of neutrality, a belief that religion is “not within the cognizance of civil government.” Reynolds v. United States, 98 U.S. 145, 163, 25 L.Ed. 244 (1878); Barnhart, supra. Nevertheless, the right of the parent to control every aspect of a child’s life is not absolute. When actions concerning a child have a relation to that child’s well-being, the state may act to promote these legitimate interests. Bykofsky v. Borough of Middletown, 401 F.Supp. 1242, 1262 (M.D.Pa.1975). The existence of such authority is evident in the remarks of the Court in Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 442-43, 88 L.Ed. 645 (1944):

... the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include the liberty to expose the community or the child to communicable disease or the latter to ill health or death. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that this includes, to some extent, matters of conscience and religious conviction. (Citations omitted)

Accordingly, in cases where harm to the physical or mental health of the child is demonstrated, these legitimate state interests may override the parents’ qualified right to control the upbringing of their children. See Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed.2d 15 (1972); Application of President and Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000, 1007-1010, cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); In re Eric B., 189 Cal.App.3d 996, 235 Cal.Rptr. 22 (1987); In re Sampson, 29 N.Y.2d 900, 328 N.Y.S.2d 686, 278 N.E.2d 918 (1972); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952), cert. denied, 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642 (1952); Muhlenberg Hospital v. Patterson, 128 N.J.Super. 498, 320 A.2d 518 (1974); Raleigh , Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537 (1964); In re Clark, 21 Ohio Op.2d 86, 185 N.E.2d 128 (1962).

The Ingrams cite In re Green, 448 Pa. 338, 292 A.2d 387 (1972), for the proposition that “[i]f there is no imminent danger to the child, then the State does not ‘have an interest of sufficient magnitude to outweigh the parent’s religious beliefs.’ ” (Brief at 5)

In Green, there was a situation where a state hospital filed a petition seeking to have one Ricky Green declared a “neglected child” under the then Juvenile Court Law (presently found at 42 Pa.C.S.A. § 6302 (1982)) and have it appointed as guardian.

It appears that Green, 17 years old at the time of the appellate ruling, suffered from paralytic scoliosis (94% curvature of the spine). This prevented him from standing or ambulating due to the collapse of his spine. To relieve the problem, doctors recommended “spinal fusion”, a dangerous operation to which the mother consented conditionally. Being a Jehovah’s Witness, she would allow the surgery but not any blood transfusion. This prompted the hospital to seek relief through the courts. Superior Court reversed the lower court’s denial of the petition seeking Green adjudged “neglected” and the appointment of the hospital as guardian. On appeal, the Supreme Court reversed, remanding to allow the son the opportunity to voice his own position as to whether he wanted to have the operation, he being of age to make that decision without parental intervention. However, in the course of doing so, the Court wrote:

... as between a parent and the state, the state does not have an interest of sufficient magnitude outweighing a parent’s religious beliefs when the child’s life is not immediately imperiled by his physical condition.

448 Pa. at 348, 292 A.2d at 392 (Emphasis in original). This statement was the outgrowth of a case scenario in which, albeit the operation on Green would have been beneficial, there was no evidence that his life was in danger or that the operation had to be performed immediately. As a consequence, the Court was confronted with a situation in which a parent would not consent to a dangerous operation on a minor child requiring blood transfusion solely because of her religious beliefs.

We believe the case at bar to be distinguishable from Green. For example, granted Tara was not in extremis physically, and Doctor Frempong stated as much when he responded to the question of whether Tara was in grave or imminent danger of death without the transfusions in the following manner:

If she receives the current care available, I would not say that she’s in imminent danger of death, but any child with sickle-cell disease faces a danger of death from certain complications.
The most difficult of these complications would be a stroke in a part of the brain that controls breathing, heartbeat, and functions like that, for which, at this time, we have no way of reversing.

The court below noted the absence of “certainty” by the doctors in saying, unequivocally, that death would ensue if transfusions were not commenced in Tara’s case. Nonetheless, an argument could be made that Tara’s sustaining a debilitating consequence from her failure to receive transfusion, on a sliding scale of available medical information, undoubtedly was extant. As stated by the court below:

... Tara’s condition is a matter of life or death. Although the exigency of the situation cannot be precisely determined, Dr. Frempong and Dr. Stuart have both testified that although they cannot say that Tara, without the long-term therapy will die today or tomorrow, they can say that without the therapy there is an eighty (80) percent chance of a recurrent stroke, the complications of which can be fatal. Dr. Frempong has testified that there is always the chance of complete recovery after a stroke but Dr. Stuart is of the opinion that according to research, there is a significant incidence of residual effects which can be fatal. For instance, after a major stroke a child could be left with an I.Q. of less than seventy (70) and be a mental cripple for the remainder of its life. Furthermore, without long-term treatment, Tara’s life span will definitely be shortened and recurrent strokes will result in cumulative damage to her life functioning.

Furthermore, we have a situation sub judice, unlike in Green, where the procedure to be implemented is not categorized as “dangerous” nor is the parent’s objection to the transfusion premised solely on a religious ground — Mrs. Ingram’s medical fears were “stronger” than her religious objections. As she phrased it:

... I’m seeking an alternative to blood transfusions, another way of treatment. * * * * I want any thing that will be able to help [Tara]. Any drug that they found that will be helpful, I will agree with it. * * * * If they can administer anything helpful, I wouldn’t be against it at all. I would never be against it.

Even the guardian ad litem was able to detect the root of the parent’s concerns, as evidenced from his testimony in court that Mrs. Ingram’s “major” objection about what should be done for Tara was “her disagreement with the medical opinions of Doctor Frempong and Children’s Hospital”.

We read Green as not requiring that a patient be at death’s door before medical intervention need be allowed to alleviate (or even minimize) the likelihood of a patient sustaining a debilitating or even fatal injury to her person as a result of abstaining from the only medically accepted measure of treating his or her ailment.

Granted, death is not an “immediately” impending consequence if Tara is not afforded transfusion. On the other hand, just as acute is a 70% probability that Tara will sustain a stroke, which is an 80% probability of coming to pass within the first three years of an initial stroke. Such has occurred twice in Tara’s case, so state the doctors. Any further strokes present the real problem of resultant mental retardation, loss of speech, severe paralysis (which includes hemiplegia or paraplegia, paralysis of one-half of the body), and loss of other intellectual functions on a selective basis without profound mental retardation is also possible.

The best statistics available, which, interestingly enough, are derived from Children’s Hospital of Philadelphia, indicate that since 1984 (in 35 cases) “at least ninety percent of the patients had not had a major central nervous system stroke” who were transfused. (See Doctor Frempong’s testimony at N.T. 4/29/88 at 55) Consistent therewith is evidence that since 1978, Children’s Hospital of Philadelphia has had an average of 400 cases with sickle-cell disease. At any one time, there are 25 patients being treated for the illness by transfusion. None has suffered a recurrent “major” stroke. One or two patients have had T.I.A. (see note 6), which consists of numbness in different parts of the body that may last a few hours or just a few minutes. Id.

We hold that it is in the best interest of society as a whole that children be protected in situations where death may occur between one week and one year of the diagnosis and refusal of treatment, a statement made by Doctor Stuart in reference, specifically, to sickle-cell patients.

Medical evidence available does indicate to a 70% likelihood that a debilitating stroke will be suffered by a sickle-cell anemia patient. We find that such a circumstance is not a departure from Green. Rather, we believe that the onset of a disease such as sickle-cell anemia, the residual effect of which will manifest itself in either severe mental retardation, paralysis or even death, if not treated under the only procedure medically tested and approved as having a success rate of 90% is consistent with a “peril” justifying medical intervention under Green. See In re Erie B., supra. As noted in Prince, supra, it does not follow that parents who wish to be martyrs for their religious beliefs have a right to impose such martyrdom upon their offspring before they reach their age of full and legal discretion. Compare In Interest of E.G., 161 Ill.App.3d 765, 113 Ill.Dec. 477, 515 N.E.2d 286 (1987).

Having concluded that the medical treatment implemented (and on-going) in Tara’s case was warranted to curb the likelihood (70% chance) of another stroke leading to mental infirmity or even death, in the extreme, we need not address the second prong of the Ingrams’ protestation that the court below erred in adjudicating their child “neglected” under the Juvenile Act. Cf. Green, supra.

We do need to respond, however, to the allegation set forth in the cross-appeal of the guardian ad litem docketed at No. 2006 Philadelphia 1988. Therein, the guardian ad litem argues that the court below erred in affixing a one year period for the transfusion to be administered; thereafter it is subject to an update as to its feasibility and continued use given Tara’s condition and the state of medical knowledge at the time. We agree with this ad hoc approach to a developing area of medicine.

As indicated by Doctor Frempong, a transfusion would have to occur every three or four weeks, given the rate at which the human body afflicted with sickle-cell anemia destroys healthy red blood cells. This process, “based on the best evidence” available, would have to be performed “at least four years, mostly likely, indefinitely”.

Although, Doctor Frempong admitted that research is continuing in the attempt to uncover an alternative choice to transfusion, the doctor’s recommendation of transfusions is based on the state of medicine at the moment, and that the length of treatment would probably be for the rest of Tara’s life, unless the medical community came up with a cure or some other method of treatment. This was also the view of the guardian ad litem, as espoused before the court below, i.e., there may be alternative therapy “out there some where, either known today or not known today, which would be as or more effective” than transfusions.

Because of the unpredictability of when a breakthrough in medical research may surface in the treatment of sickle-cell anemia, more acceptable to both patient/parent and physician, we deem it prudent to allow the court below to monitor, on a yearly basis, the progress of both the patient and medical research to decide whether the course charted is to be maintained or necessitates modification/termination.

Order affirmed.

      . Sickle-cell anemia, predominantly found in Blacks, is a genetically determined anemia characterized by the presence of hemoglobin S in red blood cells. Dorland’s Illustrated Medical Dictionary 72 (26th ed. 1981).

      . Doctor Frempong testified to the following risks attendant to any transfusion:
      1. ) The contraction of the AIDS virus. The statistical probability of doing so is one in forty thousand.
      2. ) The contraction of infectious hepatitis. The statistical probability of doing so is one in two thousand.
      3. ) The body may reject the transfusion.
      4. ) Iron overload may occur in the body; over a period of 15 to 20 years of transfusions, the body stores an excessive amount of iron which may endanger one’s liver and heart. However, this is treatable.

      . A request to have the order of court stayed pending appeal was denied.

      . This fatal/non-fatal dichotomy has been characterized as the minority view in this country. See Muhlenberg Hospital v. Patterson, 128 N.J.Super. 498, 320 A.2d 518 (1974).

      . The risks associated with the transfusion therapy have already been set forth in footnote 2, along with the attendant probability of contracting any side-effects therefrom. We would only add that medical knowledge has advanced to the stage, save for AIDS, of being able to treat any complications which may arise from the transfusions. As for the screening of AIDS and hepatitis, all known precautions are taken, even though no one can "guarantee” that their contraction can be avoided. But, such is the case in any medical treatment/operation.

      . Stroke has been defined as a prolonged clinical change of either weakness or numbness. (N.T. 4/29/88 at 62-63) A transient ischemic attack (T.I.A.) is called just that because it' is transient and is also referred to as a “minor" stroke. Id.


author: WIEAND, Judge:

text:
    552 A.2d 1121
    In re ESTATE OF James Robert ANGIER, Deceased. Appeal of Kathy Angier ANGEL.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1988.
    Filed Jan. 17, 1989.

      Peter G. Loftus, Scranton, for appellant.
    Raymond C. Davis, Susquehanna, for appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   WIEAND, Judge:

James Robert Angier died testate on July 13, 1985. A will dated January 14, 1982, and a codicil dated October 1, 1982, were admitted to probate by the Register of Wills of Susquehanna County. By the terms of the will, the testator left his entire estate to his daughter, Michelle, but if she predeceased the testator, the estate was then to go to Kathy Angier Angel, another daughter. On or about September 23, 1982, Michelle was killed by a person or persons unknown. On October 1, 1982, the testator executed a codicil which left his entire estate to a friend, Steven William Martel. The testator’s only living child, Kathy, filed an appeal from the probate of the codicil. She argued (1) that the testator’s signature on the codicil had been forged; (2) that the testator had lacked testamentary capacity when he signed the codicil; and (3) that his signature, if genuine, had been the product of undue influence, fraud, or mistake. The orphans’ court, after hearing, dismissed the appeal and affirmed the Register’s decision to admit the testator’s will and codicil to probate. Exceptions were dismissed, and this appeal by Kathy Angier Angel followed.

For thirty years prior to his death, the testator served as Postmaster in the town of Lanesboro, Susquehanna County. Steven William Martel lived in an apartment above the post office. The testator had sustained serious back and neck injuries during World War II, and thereafter suffered chronic physical ailments. Prior to his death, he had lived alone with his dog. Martel frequently had helped the testator by caring for testator’s dog, and sometimes joined the testator behind the counter at the post office. The testator’s daughter, Kathy, had married and was living with her family in South Carolina but continued to correspond with her father.

The contestant of a will has the burden of proving the existence of a forgery by clear and convincing evidence. See: In re Estate of Elias, 429 Pa. 314, 321, 239 A.2d 393, 396 (1968); In re Kadilak’s Estate, 405 Pa. 238, 243, 174 A.2d 870, 873 (1961). Mere suspicion and conjecture cannot take the place of evidence. In re Estate of Elias, supra (citing cases). In the instant case, appellant and one other witness testified that they did not believe that the signature which appeared on the codicil was that of the decedent. However, appellant did not produce a handwriting expert, and other witnesses stated that they recognized the signature as that of the testator. Moreover, the will had been executed in an attorney’s office before subscribing witnesses. In view of this evidence, the court could properly conclude, as it did, that forgery had not been proved.

The law concerning testamentary capacity is well settled.

A testator possesses testamentary capacity if he knows those who are the natural objects of his bounty, of what his estate consists, and what he desires done with it, even though his memory may have been impaired by age or disease. Estate of Reichel, 484 Pa. 610, 400 A.2d 1268, 1270 (1979); In re Estate of Hastings, 479 Pa. 122, 127, 387 A.2d 865, 867 (1978); Cohen Will, 445 Pa. 549, 551 n. 1, 284 A.2d 754, 755 n. 1 (1971). The burden of proving testamentary capacity is initially with the proponent; however, a presumption of testamentary capacity arises upon proof of execution by two subscribing witnesses. Thereafter, the burden of proof as to incapacity shifts to the contestants to overcome the presumption by clear, strong and compelling evidence. In re Estate of Hastings, supra; Cohen Will, supra, 445 Pa. at 551, 284 A.2d at 755; In re Estate of Brantlinger, 418 Pa. 236, 242, 210 A.2d 246, 249-50 (1965). Furthermore, proof of execution does not require any representation of testamentary capacity by attesting witnesses. In re Estate of Brantlinger, supra, 418 Pa. at 241, 210 A.2d at 249. The condition of the testator at the very time of execution is crucial; however, evidence of capacity or incapacity for a reasonable time before and after execution is admissible as indicative of capacity. In re Estate of Hastings, supra; Williams v. McCarroll, 374 Pa. 281, 293, 97 A.2d 14, 19-20 (1953). Finally, old age, sickness, distress or debility of body neither proves nor raises a presumption of incapacity. In re Estate of Hastings, supra, 479 Pa. at 129, 387 A.2d at 868; In re Estate of King, 369 Pa. 523, 528, 87 A.2d 469, 472 (1952).

In re Estate of Kuzma, 487 Pa. 91, 95, 408 A.2d 1369, 1371 (1979). See also: In re Estate of Hastings, 479 Pa. 122, 127, 387 A.2d 865, 867 (1978); In re Estate of Ziel, 467 Pa. 531, 537, 359 A.2d 728, 731 (1976).

The challenged codicil in the instant case was signed before two subscribing witnesses. There is a presumption, therefore, that the testator had testamentary capacity at the time when he signed the codicil. The trial court found that appellant had failed to overcome the presumption of capacity, and we find nothing in the record that would permit us to disturb that finding.

An inference of testamentary incapacity does not arise merely because the testator made an unnatural testamentary disposition. Kish v. Bakaysa, 330 Pa. 533, 536, 199 A. 321, 323 (1938). Neither is the presumption of testamentary capacity overcome by proof of physical incapacity or because there has been a recent death in the family. The testator’s decision to change his will after the death of his daughter to whom he had left his entire estate was certainly not an abnormal act. Although the testator’s bereavement was undoubtedly real, the trial court found, it was not incapacitating. Finally, even if, as appellant suggests, the testator suspected that she was not his natural daughter, she did not show that his suspicion had risen to the level of an insane delusion sufficient to deprive him of testamentary-capacity.

A confidential relationship exists where on the one side there is an overmastering influence or, on the other, weakness, dependence, or trust, justifiably imposed. Estate of Krempasky, 348 Pa.Super. 128, 131, 501 A.2d 681, 682 (1985). To meet the burden of proving undue influence, appellant was required to establish by clear and convincing evidence that (1) the testator was of weakened intellect when he signed the codicil; (2) Martel was in a confidential relationship with the testator; and (3) Martel received a substantial benefit under the codicil. Only if this burden were met, would the burden of proof shift to the proponent of the codicil to show the absence of undue influence. In re Estate of Jakiella, 353 Pa.Super. 581, 585-586, 510 A.2d 815, 817 (1986). To constitute “undue influence” sufficient to void a will there must be clear and convincing evidence of “imprisonment of the body or mind, frauds or threats or misrepresentation, or circumstances of inordinate flattery, or physical or moral coercion to such as degree as to prejudice the mind of the testator or destroy his free agency, or to operate as present restraint upon him in the making of the will.” In re Brantlinger’s Estate, 418 Pa. 236, 250-251, 210 A.2d 246, 254 (1965).

In the instant case, there was no evidence to establish that Martel enjoyed an overmastering influence over the testator. Although appellant asserted that the testator had been suffering from a weakened intellect, the trial court found credible the testimony of the proponent’s witnesses that “nobody influenced Bob Angier____ He had a mind of his own.” After hearing the evidence, the court concluded that “it is difficult, if not impossible to imagine that the decedent was ever in a position of dependence on anyone.”

Finally, we reject appellant’s contention that the will is invalid because testator was acting under a mistake of fact concerning appellant’s parentage. Even if the testator had been mistaken in suspecting that appellant was not his biological daughter, this was not the type of “mistake of fact” which would invalidate the will. See: 79 Am.Jur.2d Wills §§ 415, 417. See generally: 94 C.J.S. Wills § 223; In re Alexander’s Estate, 206 Pa. 47, 55 A. 797 (1903); In re Estate of Piper, 18 Adams L.J. 99 (1976).

AFFIRMED.

      . The testator was a divorcee. A third child, Mark, had died in 1969.

      . The evidence showed, however, that the testator’s daughter, Kathy, as his only surviving beneficiary, had received benefits from the testator’s Post Office pension fund.