author: WIEAND, Judge: HUDOCK, Judge,

text:
    642 A.2d 517
    COMMONWEALTH of Pennsylvania, Appellant, v. Esdras FOWLER, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1994.
    Filed June 1, 1994.

      Hugh Burns, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Wayne Sachs, Philadelphia, for appellee.
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   WIEAND, Judge:

After Esdras Fowler had been tried by a jury and found guilty of third degree murder and possessing an instrument of crime, the trial court determined that defense counsel had been constitutionally ineffective when he failed to bolster Fowler’s testimony by calling an available witness to testify to Fowler’s good reputation for truth and veracity. Therefore, the trial court awarded a new trial. The Commonwealth appealed. After careful review, we reverse.

In Pennsylvania, a witness’s truthfulness may be attacked by showing that he or she has a bad reputation for truth and, veracity. Commonwealth v. Payne, 205 Pa. 101, 104, 54 A. 489, 491 (1903). “If a witness is impeached by proof of bad reputation for truth and veracity, evidence may then be admitted to prove good reputation for truth and veracity.” Commonwealth v. Smith, 389 Pa.Super. 626, 630, 567 A.2d 1080, 1082 (1989). See: Wertz v. May, 21 Pa. 274, 279 (1853); McCormick, Evidence Vol. 1, Ch. 5, § 47 (4th ed. 1992); Packel and Poulin, Pennsylvania Evidence Ch. VI, § 608.1 (1987). Evidence in support of the general reputation of a witness for truth and veracity, however, is not competent until his or her general reputation has been assailed. “Every witness puts his [or her] character in issue; but until evidence tending directly to impeach it is produced, the law presumes it to be good, and therefore testimony to prove it good is superfluous.” Wertz v. May, supra at 279. See also: Commonwealth v. Smith, supra; Packel and Poulin, Pennsylvania Evidence, supra, § 608.1, at 419; Henry, Pennsylvania Evidence Vol. 2, Ch. 18, § 804, at 260 (1953).

When does impeachment of a witness open the door for the introduction of evidence of the witness’s good reputation for truth and veracity? McCormick answers this question as follows: Certainly attacks by evidence of bad reputation, bad opinion of character for truthfulness, conviction of crime, or eliciting from the witness on cross-examination acknowledgment of misconduct which has not resulted in conviction, will all open the door to character support. The evidence of good character for truth is logically relevant to meet these kinds of impeachment. Moreover, a slashing cross-examination may carry strong accusations of misconduct and bad character, which the witness’s denial will not remove from the jury’s mind. If the judge considers that fairness requires it, he may permit evidence of good character, a mild palliative for the rankle of insinuation by such cross-examination.

Corrupt conduct of a witness of a sort to show bias should also seemingly be regarded as including an attack on veracity-character and thus warranting character support, but impeachment for bias or interest by facts not involving corruption, such as proof of family relationship, may not be met by proof of good character for truth.

Attempts to support the witness by showing his good character for truth have resulted in contradictory conclusions when the witness has been impeached by evidence of an inconsistent statement, or has been met by the adversary’s evidence denying the facts to which the witness has so testified. If the witness has been impeached by the introduction of an inconsistent statement, the greater number of courts permit a showing of his good character for truth, but if the adversary has merely introduced evidence denying the facts to which the witness testified, the greater number of cases will not permit a showing of the witness’s good character for truth. Convenient as automatic answers to these seemingly minor trial questions may be, surely it is unrealistic to handle them in a mechanical fashion. A more sensible view is the notion that the judge should consider in each case whether a particular impeachment for inconsistency or a conflict in testimony, or either of them, amounts in net effect to an attack on character for truth and should exercise his discretion accordingly to admit or exclude the character-support. McCormick, Evidence, supra, § 47, at 174-176 (footnotes omitted).

In Pennsylvania, the decided cases have allowed evidence of a witness’s good reputation for truth and veracity only in instances in which the witness was impeached by evidence of a bad reputation for truth and veracity. However, in Commonwealth v. Ford, 199 Pa.Super. 102, 184 A.2d 401 (1962), the Superior Court implied that a witness’s good reputation for truth and veracity may be received, in the discretion of the trial court, where the witness has been impeached by evidence of prior felony convictions. The Court said:

“The extent to which a witness may be rehabilitated after his credibility is attacked by showing that he has been convicted of a felony is a matter in which the trial judge has, and must have, wide control.”

Id. at 109, 184 A.2d at 404-405, quoting Bank of America National Trust and Savings Ass’n v. Rocco, 241 F.2d 455, 459 (1957). No appellate court decision in this Commonwealth has thus far allowed evidence of a witness’s good reputation for truth and veracity following evidence of a prior inconsistent statement or because of a severe cross-examination. Nevertheless, it may be advisable, as McCormick and the Superior Court have suggested, to vest a broad discretion in the trial court with respect to the circumstances under which such' evidence will be received.

In the instant case, the defendant was not impeached by evidence of a bad reputation for truth and veracity or by evidence of prior convictions. His testimony, however, was contradicted by evidence of facts introduced and relied upon by the Commonwealth, which argued that defendant had been deceptive in committing the crime of murder. Under these circumstances, as we have observed, no appellate court in this Commonwealth has ever approved the use of evidence that the witness bore a good reputation for truth and veracity.

The issue in the present appeal, however, is not whether the evidence of defendant’s good reputation for truth and veracity would have been admissible if offered. The issue, rather, is whether defense counsel was constitutionally ineffective for failing to offer such evidence. In Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983), the Court said:

“Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Id. at 596, 470 A.2d at 77. See also: Commonwealth v. Thuy, 424 Pa.Super. 482, 487-488, 623 A.2d 327, 330 (1993); Commonwealth v. Akers, 392 Pa.Super. 170, 190, 572 A.2d 746, 756 (1990). Counsel will not be found ineffective for failing to do a useless act. Commonwealth v. Pursell, 508 Pa. 212, 224, 495 A.2d 183, 189 (1985); Commonwealth v. Thomas, 372 Pa.Super. 349, 353, 539 A.2d 829, 831 (1988).

After careful consideration, we conclude that defense counsel cannot be deemed constitutionally ineffective for failing to offer evidence of his client’s good reputation for truth and veracity. As we have observed, defendant’s reputation for truth and veracity had not been attacked by evidence of a bad reputation or by evidence of prior convictions of offenses crimen falsi. Under such circumstances, the admissibility of his good reputation for truth and veracity was not supported by precedent. Indeed, under the present state of the law, evidence of defendant’s good reputation for truth and veracity was inadmissible to bolster the credibility of his testimony. When the trial court held defense counsel ineffective for failing to offer such evidence, therefore, it erred.

The order awarding a new trial is reversed, and the verdict of the jury is reinstated. The case is remanded to the trial court for the imposition of sentence. Jurisdiction is not retained meanwhile.

HUDOCK, J., files a Concurring Statement.

HUDOCK, Judge,

concurring:

I concur in the result. Since the issue of bolstering the credibility of a criminal defendant by use of reputation evidence arises in the context of an ineffectiveness of counsel claim, and since the precedent in Pennsylvania to support the introduction of such evidence is unclear, at best, counsel cannot be faulted for not proffering this evidence.

In the proper context, however, I would have no difficulty allowing the use of such reputation evidence. Where, as here, a defendant who testifies is subjected to cross-examination and argument which directly attacks his veracity, as opposed to his recollection, powers of observation, etc., I would permit him to introduce reputation evidence of truthfulness and veracity. In the prosecutor’s opening statement, he stated:

I’m going to give you a quote from Shakespeare which goes: Oh what a tangled web we weave when others we try to deceive ... What the defendant told the detective could not have occurred, (emphasis added)

(N.T. 7/11/89, p. 26) Certainly this is a direct attack on Appellant’s veracity.

While it may be true, as the majority asserts, that no appellate court decision in this Commonwealth has thus far allowed evidence of a witnesses’ good reputation for truth and veracity following an attack of this nature, I would not find that a bar to so hold in an appropriate case. It seems to me peculiar that when a defendant’s credibility must be judged by a jury of twelve strangers, they are not permitted to learn what those who know him best know.

Federal Rule of Evidence 608 provides that the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation when the character of the witness for truthfulness has been attacked “by opinion or reputation evidence or otherwise.” (emphasis added) The phrase “or otherwise” presumably would include attacks on a defendant’s veracity by scathing cross-examination or by the type of argument made by the prosecutor in this case. Section 608(a) of the proposed Pennsylvania Code of Evidence, Senate Bill No. 176, Session of 1993, contains an identical provision, and thus may resolve the question for the future.

      . The trial court specifically observed that the issue was not counsel’s strategy in failing to produce evidence of a character trait relevant to the crime for which appellant was being tried.

      . In Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), the Supreme Court was not called upon to decide the admissibility of evidence of the defendant’s reputation for honesty and peacefulness in a prosecution for murder. Rather, the issue presented in Scott was whether the trial court erred when it ruled that the defendant’s proposed character witnesses could be cross-examined about two prior arrests of the defendant, neither of which led to a conviction. The Supreme Court held that the trial court’s ruling had been erroneous. However, the Court’s suggestion that the defendant had made a convincing argument that the character evidence was essential to his defense was merely dictum. The Court in Scott did not consider the admissibility of such evidence, and, indeed, the defendant had been deterred from offering such evidence at his trial by the trial court's erroneous ruling.


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    642 A.2d 520
    COMMONWEALTH of Pennsylvania, Appellant, v. David MALSON.
    Superior Court of Pennsylvania.
    Argued March 3, 1994.
    Filed June 1, 1994.

      Anthony Pomeranz, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    John Belli, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and SAYLOR and HESTER, JJ.
   ROWLEY, President Judge:

The Commonwealth has appealed from a trial court order granting appellee’s motion for the suppression of physical evidence. On appeal, it is contended that “the [trial] court committed a clear error of law by suppressing cocaine and cash that police seized from [David Malson (hereinafter “appellee”) ] when they arrested him, after watching him conduct what they [ ] believed to be a drug transaction on a German-town street corner.” We do not agree, and therefore, we affirm.

Initially, we note that in reviewing the grant of a suppression motion “[a]n appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom.” Commonwealth v. Burnside, 425 Pa.Super. 425, 429, 625 A.2d 678, 680 (1993), quoting, Commonwealth v. Oglialoro, 377 Pa.Super. 317, 318, 547 A.2d 387, 387 (1988), aff'd, 525 Pa. 250, 579 A.2d 1288 (1990). Our standard has been stated as follows:

“In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted, [citation omitted], While we are bound by the [trial] court’s findings of fact if supported by the record, we are not bound by the [trial] court’s legal conclusions which are drawn from the facts of the case, [citations omitted].”

Commonwealth v. Dennis, 417 Pa.Super. 425, 427, 612 A.2d 1014, 1015 (1992), appeal denied, 535 Pa. 654, 634 A.2d 218 (1993). “Factual findings wholly lacking in evidence, however, may be rejected.” Burnside, supra, 425 Pa.Super. at 429, 625 A.2d at 680, quoting, Commonwealth v. Bennett, 412 Pa.Super. 603, 606, 604 A.2d 276, 277 (1992).

In this case, the trial court made the following factual findings:

“On September 14, 1991, at approximately 9:15 p.m., Philadelphia Police Officer Michael Copecki set up surveillance in the area of Hieskil and Armat streets. After a few minutes, Officer Copecki saw [appellee] standing outside of
the sports bar [located on that corner]. Several people walked past [appellee] with no conversation or interaction. A short time later, a black male approached [appellee] [and] handed [appellee] what appear to the officer to be money[, but which Officer Copecki admitted on cross-examination could have been something else] whereupon [appellee] removed a small purse from his right pants pocket. [Appellee] removed an item from the change purse and handed it to the male. The male [then] left in a black auto[mobile].
Officer Copecki continued to watch [appellee] for a brief time [thereafter] but observed no activity. The officer left his surveillance and joined his partner, Officer Peters. Together, they returned to the location and arrested [appellee]. A small brown change purse containing $41 in U.S. currency and eighteen (18) yellow-tinted vials sealed with blue caps w[ere] recovered from [appellee’s] right pants pocket.
Officer Copecki had been a police officer for seven years and had been assigned to that area. He made ten previous arrests for narcotics during his seven year career. The officer testified that based on his observation and experience, he believed [appellee] was selling drugs.”

(Trial Court Opinion, 11/1/93, pp. 1-2).

Our examination of the record reveals that all of the suppression court’s factual findings, save for one, are well supported; we are, however, constrained to point out that the evidence adduced at the suppression hearing clearly indicates that Officer Copecki has made ten previous arrests at or near the comer of Armat and Hieskil streets in his seven years with the police force, instead of having made only “ten previous arrests for narcotics during his seven year career[,]” as the suppression court found. (Trial Court Opinion, 11/1/93, p. 2). With the facts of this case firmly in mind, we move on to a consideration of whether the suppression court’s legal conclusions are valid.

In this case, the Commonwealth contends that the trial court erred in suppressing $41 in U.S. currency and 18 vials of crack cocaine which were found on appellee’s person in a warrantless search. Specifically, the Commonwealth contends that the search was valid in that it was incident to a lawful arrest because the officer had probable cause to believe that appellee had committed a crime, to wit, the sale of narcotics.

“As a general rule, a search conducted without a warrant is presumed to be unreasonable unless it can be justified under a recognized exception to the search warrant requirement.” Commonwealth v. Agnew, 411 Pa.Super. 63, 74, 600 A.2d 1265, 1271 (1991). “One such exception is a search which is incident to a lawful arrest.” Id. “It is axiomatic that the validity of a warrantless arrest is determined by considering ‘whether, at the moment the arrest was made, the officer had probable cause to make it,’ Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964), and the person arrested is believed to be the guilty party.” Commonwealth v. Mallory, 418 Pa.Super. 614, 616, 614 A.2d 1174, 1176 (1992), appeal denied, 533 Pa. 632, 621 A.2d 578 (1993). As this Court stated in Agnew, supra.:

“In this Commonwealth, the standard for evaluating whether probable cause exists is the ‘totality of the circumstances’ test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The bench mark of a warrantless arrest is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). ‘When we examiné a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element ... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might ... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).’
Commonwealth v. Rodriguez, 526 Pa. 268, 272-273, 585 A.2d 988, 990 (1991). See also: Commonwealth v. Fromal, 392 Pa.Super. 100, 112-113, 572 A.2d 711, 717 (1990); Commonwealth v. Butler, 354 Pa.Super. 533, 537-538, 512 A.2d 667, 669-670 (1986).
Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 524, 410 A.2d 822, 824-825 (1979).”

Agnew, supra, 411 Pa.Super. at 74-75, 600 A.2d at 1271-1272. Finally, we must note that “[i]t is only the probability of criminal activity that is the standard of probable cause. This means less than the evidence which would justify conviction, or even a prima facie showing of criminal activity; but more than mere suspicion. ” Mallory, supra, 418 Pa.Super. at 616, 614 A.2d at 1176 (emphasis added).

In the instant case, the testimony, viewed in the proper light, reveals that on September 14, 1991, at approximately 9:00 p.m., Officer Copecki, who was not using binoculars, set up a surveillance of the intersection at Armat and Hieskil streets in Philadelphia, at which time he observed appellee, a resident of that area, receive “something green” from an unknown black male in front of a bar located on that corner. The officer could not tell what appellee handed the male in return. When he witnessed this exchange, the officer was at least fifty, and possibly as much as one hundred, feet away. Based on the exchange he had just witnessed, and the fact that the officer had made 10 previous arrests in that precise location, Officer Copecki and his partner “ran up to [appellee] on the pavement, slammed him against [a] car, and arrested him,” after which they searched him and discovered eighteen vials of crack cocaine. (Trial Court Opinion, 11/1/93, p. 3).

“When police observe citizens engaged in seemingly suspicious transactions on public streets, the determination of whether probable cause exists can be a difficult one. In this regard, the Pennsylvania Supreme Court has observed that ‘all of the circumstances surrounding a transaction between citizens are to be considered in determining whether law enforcement officers have acted arbitrarily or have acted on the basis of probable cause.’ Commonwealth v. Lawson, 454 Pa. 23, 27, 309 A.2d 391, 394 (1973), citing United States v. Henry, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). The Court in Lawson elaborated that:
All of the detailed facts and circumstances must be considered. The time is important; the street location is important; the use of a street for commercial transactions is important; the number of such transactions is important; the place where the small items were kept by one of the sellers is important, the movements and manners of the parties are important.
It is difficult to isolate any one fact or circumstance and assign to it a given weight. If any one of the facts and circumstances, which we have detailed, were missing, the necessary conclusion of probable cause might not be allowable. Every commercial transaction between citizens on a street comer when unidentified property is involved does not give rise to probable cause for an arrest.
Id., 454 Pa. at 28-29, 309 A.2d at 394.”

Agnew, supra, 411 Pa.Super. at 76, 600 A.2d at 1272. (emphasis added).

In this case, we do not think that the facts, as found by the suppression court, give rise to a reasonable conclusion that criminal activity was afoot. Our decision in this regard is supported by several cases which stand for the proposition that an exchange of some unknown items between citizens in a public place, even a place known to be frequented by drug traffickers, does not, without more, establish probable cause to arrest those citizens. First, in Commonwealth v. Vassiljev, 218 Pa.Super. 215, 275 A.2d 852 (1971), this Court held that a search of a defendant’s person was unreasonable where police officers arrested the defendant simply because they saw him pass something to another man, even though they did not know what was passed between them.

In 1978, the Pennsylvania Supreme Court considered the case of Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313, where the:

“... police had been watching a bowling alley in a high crime area. They observed defendants drive their vehicle into the parking lot of the bowling alley and hand a shopping bag to a juvenile. The juvenile had been standing on the lot, acting as though he were waiting for someone. Upon receiving the bag, the juvenile lifted it to his face and appeared to smell its contents. At this point, the police moved in, blocking the path of the defendants’ vehicle and seizing the shopping bag from the juvenile. Marijuana was found in the bag and later in the defendants’ vehicle. The trial court ordered that the marijuana be suppressed because the police lacked probable cause to make a lawful arrest. On appeal, the Commonwealth conceded that probable cause had been lacking but asserted that the police had made a lawful investigative Terry stop The Supreme Court rejected this argument and affirmed the suppression court’s order. In a plurality opinion, the Court reasoned as follows:
The acts of appellees here — riding in a car, stopping at a bowling alley, exchanging a package — were all acts that were outwardly innocent, [citation omitted]. What occurred here was one isolated transaction, not a series of . transactions which, under certain circumstances might indicate that an exchange of drugs was taking place. See, Commonwealth v. Lawson, supra. Officer Matuszak had no prior information that a drug transaction would occur on this evening. There was simply no reasonable basis to conclude that this particular package, a shopping bag large enough to contain a countless number of objects, happened to contain illegal drugs. While the officer’s curiosity might have been aroused by the action that was witnessed, and while he might have had a hunch that illegal contraband was involved, that is not sufficient. See Terry v. Ohio, supra; Commonwealth v. Jones, [474 Pa. 364, 378 A.2d 835 (1977) ] supra.
Commonwealth v. Greber, supra, 478 Pa. at 68, 385 A.2d at 1316 (per Manderino, J.).”

Agnew, supra, 411 Pa.Super. at 77-78, 600 A.2d at 1272-1273.

Thereafter, in Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980), this Court held that although an officer had previously made several narcotics arrests at or near the 600 block of Herron Avenue in Pittsburgh, and although he had an anonymous tip that “dope” was being sold at that same location, he did not have probable cause to make an arrest, despite witnessing the defendant and another man engage in “some sort of exchange” at that location and then flee when the officer approached them. This Court so concluded because “the officer could not see what was being exchanged.” Id. at 208-209, 421 A.2d at 686.

Recently, in Commonwealth v. Agnew, supra., this Court again considered the issue of whether probable cause exists when an officer sees something which he believes to be a drug transaction. There, several officers were conducting surveillance from an unmarked police car in an area known to be frequented by drug traffickers at approximately 8:50 p.m. in April of 1990 when they observed an automobile containing three white males pull into the area, a parking lot behind the “Live Wire Bar.”

One of the officers, Officer McIntyre, exited the police vehicle and went across the street for a better view, approximately 30 to 40 yards away from the suspect automobile. Two black males then appeared in the parking lot; one of them approached the automobile, conversed with its occupants, and then returned to the other black male. The second black male then went to the automobile and reached inside the passenger window. “[Although Officer McIntyre was unable to see any [actual] objects passed between the parties, he believed that he had witnessed a drug transaction.” Id. 411 Pa.Super. at 72, 600 A.2d at 1270.

The vehicle then left the scene and proceeded to a a parking lot adjacent to DelMont Chemical Company, where the defendants worked. The undercover police car followed, and pulled behind the vehicle, after which the occupants were instructed to exit their automobile. The defendants were then searched and narcotics were found on their persons; drugs were also found protruding from under the front passenger seat. Motions to suppress were filed but the suppression court concluded that the searches were incident to a lawful arrest.

On appeal, this Court reversed the ruling of the suppression court because “[t]he police had no prior information or reason to believe that [the defendants] would be engaging in a drug transaction, nor did they observe [the defendants] in the company of known drug dealers.” Id. at 79, 600 A.2d at 1273. Therefore, this Court concluded that “[i]t could not be said with any degree of certainty under these circumstances that an isolated contact between appellants and two black males involved any kind of commercial transaction whatsoever, let alone a sale of drugs.” Id. at 79, 600 A.2d at 1273-1274.

In the instant case, we reiterate the sentiments expressed in Vassiljev, Hunt, Greber, and Agnew that no citizen may be arrested merely for passing an unidentified item to another citizen on a public street. For probable cause to exist, there must be other facts which, together with a suspicious exchange of unidentified items, supports a reasonable belief that the exchange is drug related. In this case, such facts did not exist and thus, appellee’s arrest, and the search which ensued, were not legal. We conclude that the trial court properly granted appellee’s motion to suppress the fruits of the illegal search.

Order affirmed.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . In Commonwealth v. Dennis, 417 Pa.Super. 425, 612 A.2d 1014 (1992), appeal denied, 535 Pa. 654, 634 A.2d 218 (1993), for example, this Court concluded that probable cause did exist where the officers were aware of neighbors' complaints that drug deals were occurring at a particular address when they observed defendant, at that address, accept what appeared to be money in exchange for the transfer of an unidentified item, after which the defendant fled back into the house as the officers began to approach. In finding that probable cause existed in Dennis, this Court "f[ound] particularly compelling ... the fact that residents of the area, individuals living on the 1600 block [of Sparks Street], made multiple reports to police of drug dealing at 1618 Sparks.” Id. 417 Pa.Super. at 430, 612 A.2d at 1016 (emphasis added). In the present case, unlike Dennis, the officers had no prior knowledge appellee would be dealing in narcotics on that particular corner, nor did appellee attempt to flee when he became aware of the police presence, as did the defendant in Dennis. Therefore, we conclude that the two cases are distinguishable; in Dennis, unlike the instant case, there were facts other than the exchange itself which gave rise to a reasonable belief that the transaction was drug related.


author: WIEAND, Judge:

text:
    642 A.2d 525
    In re ESTATE OF Edyth B. MEYERS. Appeal of Harvey A. MILLER, Jr., Executor of the Estate of Edyth B. Meyers.
    Superior Court of Pennsylvania.
    Argued March 16, 1994.
    Filed June 6, 1994.

      Alexander H. Lindsay, Jr., Butler, for appellant.
    Bruno A. Muscatello, Butler, for appellee.
    Before WIEAND, DEL SOLE and HUDOCK, JJ.
   WIEAND, Judge:

The appeal in this case is from a decision by an orphans’ court which refused an executor’s petition to set aside an inter vivos creation of a joint interest in a bank account in favor of a neighbor who had occupied a confidential relationship with appellant’s decedent. After careful review, we affirm.

The decedent, Edyth B. Meyers, died on May 7,1991, at the age of 97. Letters testamentary were issued to Harvey A. Miller, Jr. He learned that the decedent, during her lifetime, had added the name of her neighbor, Hazel Kline, to a bank account maintained by the decedent at Citizens National Bank in Butler County. Therefore, the executor filed a petition seeking to recover the asset for the estate. Mrs. Kline, who had held an irrevocable power of attorney from the decedent and who had performed numerous services for the decedent, made a claim for services. The respective claims were settled by agreement of the parties and approved by the court.

Later, the executor learned that an account maintained by the decedent at Mellon Bank and containing $66,882.82 had also been placed in the joint names of the decedent and Mrs. Kline in August, 1990. A petition was filed by the executor to recover the funds in this account, and hearings thereon were held. The hearing court found that a confidential relationship had existed in fact between the decedent and Mrs. Kline but that there had been no undue influence. The executor argues on appeal that because a confidential relationship existed between the decedent transferor and Mrs. Kline, the burden shifted to the transferee to show a voluntary gift without undue influence. This burden, it is argued, was not met by the transferee.

The decedent, Edyth Meyers, remained of sound mind until her death. On June 10, 1989, however, she fell and fractured a hip. Thereafter, her ability to move around was severely limited. On July 11,1989, she executed a power of attorney in favor of her friend and neighbor, Mrs. Kline; and thereafter Mrs. Kline took care of most, if not all, of the decedent’s financial affairs. Mrs. Kline and her husband were also frequent visitors when the decedent was confined to a nursing home, and on occasion took the decedent home for dinner and for rides in their automobile. That the Klines were good neighbors and solicitous of the well being of their friend and neighbor is eminently clear.

For this reason and also because Mrs. Kline had held the decedent’s power of attorney, the hearing court determined that a confidential relationship had existed. In Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989), the Supreme Court said:

[A] confidential relationship exists when the circumstances make it certain that the parties do not deal on equal terms; where, on the one side there is an overmastering influence, or on the other, weakness, dependence or trust, justifiably reposed. In both situations an unfair advantage is possible. Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411 (1922). Such a relation is created between two persons when it is established that one occupies a superior position over the other; intellectually, physically, governmentally, or morally, with the opportunity to use the superiority to the other’s disadvantage. [Union Trust Co. v. Cwynar, 388 Pa. 644, 653, 131 A.2d 133, 137 (1957) ]. A confidential relationship is not limited to any particular association of parties, but exists wherever one occupies such a position of advisor or counsellor as reasonable to inspire confidence that he will act in good faith for the other’s interest. Drob v. Jaffe, 351 Pa. 297, 300, 41 A.2d 407, 408 (1945).

Id. 521 Pa. at 504-505, 556 A.2d at 825. A confidential relationship may be shown by proof that the alleged donee possessed a power of attorney over a decedent’s assets. Foster v. Schmitt, 429 Pa. 102, 108, 239 A.2d 471, 474 (1968); Hera v. McCormick, 425 Pa.Super. 432, 449, 625 A.2d 682, 691 (1993).

Prior to the enactment of Chapter 63 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§ 6301-6306 (added by the Act of July 9, 1976, P.L. 547, No. 134, effective September 1, 1976), the determination of property rights among parties to multiple-party accounts was governed by common-law principles. Under these principles, “the creation of a joint interest with rights of survivorship in a bank deposit, evidenced by the signatures of all the parties, [was] prima facie evidence of the intent of the party funding [the] deposit to make an inter vivos gift to the other joint tenants.” In re Estate of Young, 480 Pa. 580, 584, 391 A.2d 1037, 1039 (1978). See also: In re Estate of Gladowski, 483 Pa. 258, 262, 396 A.2d 631, 633 (1979). When a donee was able to establish by prima facie evidence the making of a gift, a rebuttable presumption arose that the gift was valid. The burden then shifted to the contestant to rebut the presumption by clear and convincing evidence. In re Estate of Clark, 467 Pa. 628, 634, 359 A.2d 777, 781 (1976). However, if it was shown that a confidential relationship existed between the donor and donee at the time the gift was made, the burden then shifted to the donee to establish that the gift was free of undue influence or deception. Id. See also: Estate of Keiper v. Moll, 308 Pa.Super. 82, 454 A.2d 31 (1982). The donee was required in such circumstances to show that the gift was a free, voluntary and intelligent act of the donor. Estate of Keiper v. Moll, supra at 87, 454 A.2d at 34.

Today, the ownership of funds held in a joint account is governed by statute. See: 20 Pa.C.S. §§ 6301-6306, supra. The enactment of Chapter 63 of the Probate, Estate and Fiduciaries Code wrought far-reaching changes in the law regarding joint bank deposits. See: In re Estate of Young, supra at 584 n. 3, 391 A.2d at 1039 n. 3. See also: Pagnotti v. Old Forge Bank, 429 Pa.Super. 39, 44 n. 2, 631 A.2d 1045, 1047 n. 2 (1993); Dickey v. Kundrat, 4 Fiduc.Rep.2d 367, 368 (1984). Pursuant to this statute, a “joint account” is defined as “an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorship.” 20 Pa.C.S. § 6301. Relevant to the present dispute is § 6304(a), which governs the ownership of funds upon the death of a party to a joint account. Section 6304(a) provides as follows:

Any sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent at the time the account is created.

The Official Comment to 20 Pa.C.S. § 6304 states, in pertinent part, as follows:

The effect of (a) of this section, when read with the definition of “joint account” in Section 6301(4), is to make an account, payable to one or more of two or more parties, a survivorship arrangement unless “clear and convincing evidence of a different contention” is offered.
The underlying assumption is that most persons who use joint accounts want the survivor or survivors to have all balances remaining at death.

As to the ownership of funds held in a joint account, the statute favors the surviving party over the estate of the decedent. By 20 Pa.C.S. § 6304, the legislature has created a statutory presumption that survivorship rights are intended when a joint account is created. This presumption can be overcome only by clear and convincing evidence of a contrary intent. Accord: Pagnotti v. Old Forge Bank, supra at 42-44, 631 A.2d at 1047. The burden of establishing a contrary intent is on the party who opposes the presumption of survivorship. See: Miller Estate, 7 Fiduc.Rep.2d 267, 270 (1987); King Estate, 3 Fiduc.Rep.2d 229, 231 (1983).

The provisions of 20 Pa.C.S. § 6304 have not heretofore been considered by an appellate court in a factual context similar to that in the instant case. The language of the statute, however, is clear. A joint account is payable to the survivor unless “clear and convincing evidence of a different intent” is produced. It follows, as several trial courts have held, that the existence of a confidential relationship between • the owners of a joint account does not alone shift the burden of proof. See: Miller Estate, supra; King Estate, supra. The presumption is, rather, “that most persons who use joint accounts want the survivor or survivors to have all balances remaining at death.”

This does not mean that the existence of a confidential relationship is meaningless or irrelevant. As the court observed in Sm,elzer Estate, 4 Fiduc.Rep.2d 9 (1983)

“Although confidential relationship no longer shifts burdens, it is, nevertheless, necessary to consider the facts which constitute the relationship together with all other evidence in determining the intent of the decedent when the accounts ... were issued.”
Inquiry must therefore be directed to ascertain whether a confidential relationship existed between [the parties to the joint account]. Because an intent different from the stricture of Section 6304 had to exist at the time the account [was] created, the focal point of the inquiry must be [the date when the account was opened].

Id. at 12, quoting King Estate, supra at 233. Accord: Nicolai Estate, 9 Fiduc.Rep.2d 204 (1989); Miller Estate, supra. Evidence of a confidential relationship, therefore, is relevant only for purposes of determining intent; it does not serve to shift the burden of proof to the survivor.

A review of the record in the instant case discloses that appellant failed to present clear and convincing evidence that Edyth Meyers, the decedent, had not intended Hazel Kline to receive the balance of the account upon her death. Although evidence was introduced which established that a confidential relationship had existed between Meyers and Kline, there was no evidence that undue influence had been exerted upon Kline at the time the joint account was created. There also was no evidence that the decedent had not voluntarily created the joint account. Indeed, the only evidence regarding the circumstances surrounding the creation of the account was the signed account signature card which recited that the account was to be held by the parties as joint tenants with the right of survivorship. Absent evidence which establishes that the decedent had a “contrary intent” at the time the account was created, the statutory presumption of survivorship is controlling. Here, the presumption was not rebutted merely by the relationship existing between the decedent and her neighbor. Therefore, the balance of the account upon the death of Edyth Meyers became payable to Hazel Kline and not to the decedent’s estate.

The order of the trial court is affirmed.

      . The funds in this account had been inherited by the decedent from her brother.


author: HESTER, Judge:

text:
    642 A.2d 529
    Charles DiFRANCESCO and Anna M. DiFrancesco v. EXCAM, INC., Joffe’s Gun Shop, Inc. and RSR Wholesale Guns, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1994.
    Filed May 10, 1994.

      Michael J. Cawley, Philadelphia, for appellants.
    Alexander A. DiSanti, Media, for appellees.
    Before KELLY, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Excam, Inc., Joffee’s Gun Shop, Inc., and RSR Wholesale Guns, Inc., appeal following a jury award of $125,000.00 in favor of appellees. Appellants were held responsible for the injuries sustained by Charles DiFrancesco after the Excam TA38S derringer hand pistol he was carrying in a sweater pocket accidentally discharged. The jury held appellants liable on a theory that the pistol was defectively designed and manufactured. Appellants maintain that they were entitled to a judgment notwithstanding the verdict or a new trial. Their arguments lack merit, and we affirm.

In this appeal from a jury verdict in a firearms products liability case, the following facts are pertinent. On December 6, .1987, Charles DiFrancesco, (“appellee”), purchased an Ex-cam TA38S derringer pistol from Joffee’s Gun Shop. The derringer was manufactured by Excam and distributed to Joffee’s by RSR.

On November 15,1988, at approximately 4:00 p.m., appellee, who was working in his son’s bar, was carrying the derringer pistol in the right-hand pocket of his sweater vest. When appellee bent over the ice machine, he inadvertently struck the hammer spur of the loaded derringer pistol on a box causing the pistol to discharge. As a result, appellee suffered a gun shot wound which penetrated his right abdomen and exited his posterior right flank. He required extensive emergency surgery and further follow-up surgery.

On August 13, 199Ó, appellee and his wife, Anna, instituted this action against appellants based upon a theory of strict liability. They contend that two different aspects of the design of the Excam model TA38S derringer made the product unreasonably dangerous, unsafe, and defective. First, they maintained that the design of the gun posed an unreasonable danger due to the fact that a blow to the exposed hammer when resting against the breach, or down position, could cause an accidental discharge. Second, appellees maintained that in addition to the three hammer positions identified in the instruction manual, there was, in fact, a fourth or “pseudo half-cocked position.” Appellees argued that this fourth position constituted a defect since pressure on the thumb safety would cause the hammer to drop into the down position.

At trial, appellee testified that he placed the gun in the third or half-cocked position as described in the instruction manual. Appellee understood this to mean that the safety was in place. He called several expert witnesses who supported his theory regarding the existence of the fourth hammer position. Appellants likewise called upon experts to defend the design of the derringer. Based upon the evidence presented at trial, the jury concluded that the pocket pistol was defective in design and manufacture.

Appellants filed post-verdict motions arguing that prejudicial error and appellees’ inability to establish the defective design of the derringer entitled them to judgment notwithstanding the verdict or a new trial. The court denied the motions. This appeal followed.

First, appellants argue that they are entitled to judgment notwithstanding the verdict since appellees did not provide evidence of an alternative feasible design and therefore, did not establish the defective nature of the derringer’s design. Our standard of review of an order denying judgment notwithstanding the verdict is whether

there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). The standard of review for an appellate court is the same as that for a trial court: j.n.o.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske-Olds-Cadillac-GMC, 413 Pa.Super. 308, 312, 605 A.2d 373, appeal denied, 532 Pa. 665, 616 A.2d 985 (1992). An appellate court will reverse a trial court ruling only if it finds there was not sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably drawn from the evidence. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991, 993 (1982).

Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 42, 633 A.2d 605, 608 (1993).

Pennsylvania law requires a plaintiff to prove two elements in a products liability action: first, that the product was defective, and second, that the defect in the product was a substantial factor in causing the injury. Berkebile v. Brantley, 462 Pa. 83, 337 A.2d 893 (1975). In determining whether or not a product is defective, the design and operation of the product must be considered, including whether the product was equipped with the proper safety devices which would allow the user to avoid danger when using the product. Id. We have held that in a- defective design case, the question is whether the product should have been designed more safely. Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984).

Instantly, appellants argue that they are entitled to judgment notwithstanding the verdict because appellees offered no evidence of an alternative, feasible design which would support the jury’s conclusion that the Excam .38 caliber derringer was defective. Appellants suggest that current Pennsylvania law requires a plaintiff to produce relative costs of the design considerations as well as any new dangers created and any reduction in the benefit of the newer, safer design. In essence, appellants suggest that case law requires a plaintiff to provide specifications and plans for safer designs as well as risk/effectiveness ratios. Pennsylvania courts have not imposed such rigorous restrictions in strict liability cases. To the extent that other courts have evaluated similar issues, they have held that evidence regarding design defects is subject to a risk-benefit analysis when determining whether a product is unreasonably dangerous pursuant to Restatement (Second) Torts § 402A. Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978); Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983). There is no similar requirement in Pennsylvania.

Further, our review of the record reveals that testimony was offered based upon registered patents for designs which would eliminate the potential for the specific way in which appellee’s gun discharged accidentally. The experts offered evidence that other hand guns on the market were equipped with safety features which reduced the risk of accidental discharge. While admittedly there were no comparables available with regard to a single-action pistol such as the TA38S derringer, appellees’ expert, Robert S. Krauss, explained this was due solely to the fact that the appealability of concealable pocket firearms such as the derringer had waned in recent years. Therefore, most manufacturers had discontinued production, and there were few comparables. However, there were double action derringers on the market which incorporated the safety mechanisms recommended by Mr. Krauss. Whether installation of the recommended safety device would change the operation of the derringer was an issue at trial. Mr. Krauss explained that the “idea is not to have a gun, it’s to have what the gun does.” Notes of Testimony, (“N.T.”), 4/15/92, at 136.

Testimony found to be credible by the jury established that the hammer of the gun could be placed in a false half-cocked position which was not described in the instruction manual. The experts testified that in this position, the hammer of the gun could easily move into the discharge position if bumped. The voluminous evidence presented throughout this ten-day trial which supports the jury’s determination that the derringer pistol was defective in both its design and manufacture is aptly summarized and evaluated by the trial court. The pertinent portions follow.

Plaintiffs witnesses, George Fassnacht and Robert Krauss, were qualified as experts and were properly allowed to testify on design alternatives for the TA38S derringer.
Whether a witness has been properly qualified to give expert opinion testimony is vested in the discretion of the trial court. Gottfried v. American Can Co., [339 Pa.Super. 403,] 489 A.2d 222 (1985). The standard for qualification of expert witnesses in Pennsylvania is a liberal one. “If a witness has any reasonable pretention to specialized knowledge on the subject under investigation, he may testify, and the weight to be given to his evidence is for the jury.” Id. [489 A.2d] at 226. Although the witness must demonstrate some special knowledge or skill, there is no requirement that a witness acquire expertise as a result of formal schooling; expertise acquired by experience, is experience nonetheless. Id. In addition, a witness need not have had practical experience in a given industry in order to qualify as an expert on a product manufactured by a party to litigation. Wolford v. General Cable Co., 58 F.R.D. 583 (D.C.Pa.1973).
Plaintiffs expert, George Fassnacht, testified and was extensively cross-examined by Defendants’ counsel regarding his credentials. (4/14/92 N.T. at 134-44). He is a forensic firearms consultant with many years of experience using and studying the science of ballistics. He spent three years with the Ordinance Technical Intelligence Service at Aberdeen Proving Ground in Maryland where he was assigned to the Chief of the small arms and aircraft weapons branch. In that capacity he examined, evaluated, and tested various types of small arms and made recommendations about alternatives.
Prior to that experience he spent five years with the Philadelphia Police Department supervising the firearms unit and ballistics laboratory. He was a firearms and ordnance [sic] specialist with the Central Intelligence Agency for three years and spent one year training government personnel in Singapore. He has subsequently been an independent expert for nineteen years.
He is licensed as an expert and consultant by the Bureau of Alcohol, Tobacco and Firearms. He is a member of several professional organizations, including, INFORM, an international forensic medicine and science organization; the American Society for Testing and Materials, where he is on the forensics committee; the National Association of Criminal Defense Lawyers; and a number of other organizations having to do with firearms. He has written technical articles and worked on legal seminars.
This court found Mr. Fassnacht to have more than ample credentials to qualify as an expert in forensic firearms consulting and to give opinions concerning the mechanics and design of the TA 38S derringer, including design alternatives.
In like fashion, Robert S. Krauss testified for Plaintiff as an expert in forensic firearms. His credentials were equally impressive. In addition to a college degree, he has taken many courses that contribute to his expertise, including, physics, mechanical drawing, engineering, microscopy, criminal justice and gunsmithing. He has studied firearms for approximately thirty-five years, done extensive research on firearms patents, and is a certified firearms instructor. He maintains a firearms library and a research ballistics laboratory where he does testing of firearms. He has consulted in firearms for over twenty years.
He, too, is a member of and/or consultant to several professional organizations, including the American Society for Testing and Materials, where he serves on the Forensics Committee; The International Association for Identification; International Wound Ballistics Association; and American Society of Law Enforcement Trainers.
There can be no question of Mr. Krauss’s expertise and qualifications to testify as an expert in forensic firearms, including alternative designs of the derringer at issue in this case.
The evidence in the instant case supports the jury’s . findings that the TA 38S derringer pistol designed and manufactured by Excam was defective in both its design and manufacture.
The derringer was designed to have three positions for the hammer — a discharge position, where the hammer rests against the cartridge; a full-cocked position, where the hammer is retracted in order to fire it; and a half-cocked position lying between the discharge and the full-cocked position with an automatic safety locking the hammer in the half-cocked position. When the hammer is in the discharge position, it is in contact with the firing pin and, according to the instruction manual introduced into evidence as Exhibit p-2, can be discharged if the derringer is dropped or bumped. Both Mr. Fassnacht and Mr. Krauss described the capacity of the TA 38S to fire if its hammer is inadvertently bumped while in the discharge position as a design defect. (4/14/92 N.T. at 186 and 4/15/92 N.T. at 159).
The fact that the derringer was meant to be carried in a pocket instead of a holster virtually assures that the hammer will be inadvertently bumped at one time or another. As Mr. Krauss testified, a gun “should only fire when you intend to fire it, which means pulling the trigger.” (4/15/92 N.T. at 160). It was his opinion that any gun that could be discharged by accidentally striking its hammer when in the discharge position is unsafe. (4/15/92 N.T. at 159-60).
The evidence also showed that the TA 38S is defective in manufacturing. It was manufactured to have a fourth position not described in the instruction manual (Exhibit P-2). Witnesses called this position the pseudo or false half-cocked position and described it as located between the discharge and half-cocked position, only “a small fraction of an inch” short of the half-cocked position. (4/15/92 N.T. 146). When the hammer is placed in the false half-cocked position, the safety is not engaged (as it is in the half-cocked position) and can easily be moved to the discharge position if it is bumped. Plaintiffs witnesses, Mr. Fassnacht (4/15/92 N.T. at 202) and Mr. Krauss (4/15/92 N.T. at 91-92), as well and Defendants’ witness, J.B. Wood (4/23/92 N.T. at 188-92) acknowledged the false half-cocked position.
Mr. Fassnacht testified that there is no way to tell if the hammer is in the false half-cocked position and that Plaintiff could easily have moved the hammer into that position thinking he had put it in the true half-cocked position. (4/14/92 N.T. at 147-48). The differences in the testimony of Plaintiffs two expert witnesses (Fassnacht and Krauss) and Defendant’s expert witness (Wood) come down to an issue of credibility — and the jury clearly found Plaintiffs witnesses to be more credible and so found the derringer was defective in both design and manufacture.
Plaintiffs experts testified at length about feasible and safer design alternatives that would eliminate the problems that made the derringer unsafe for its intended use. Mr. Krauss testified, for example, that there were a number of patents in existence for mechanisms that would make the derringer safer. One was a transfer bar that could prevent the hammer from impacting on the firing pins if it were inadvertently bumped while in the firing position. This change would not significantly affect the size or configuration of the derringer. (4/15/92 N.T. 125-26). Although he was unaware of any derringer on the market that had the safety mechanism he recommended, he was positive such a mechanism could be incorporated into the derringer design. (4/15/92 N.T. at 131). He also named several derringers made from the early 1960’s to the 1980’s that did not have an exposed hammer. (4/15/92 N.T. at 136). Although Defendants argued that eliminating the hammer would change the derringer into a double-action instead of a single-action revolver, Mr. Krauss replied, on cross examination, “You must remember that a firearm is, as Oliver Winchester said, ‘a machine for projecting bullets.’ The idea is not to have a gun, it’s to have what a gun does. If you buy an electric drill you don’t want to drill, you want a quarter-inch hole in the wall. It is the same thing with a gun. Unless you are a collector, you don’t want a gun to look at the gun, you want a gun to do something. To shoot at somebody if they are coming at you or to shoot at a target or to shoot at a bear. So whether it is double action or single action it is not material in that case.” (4/15/92 N.T. 136-37).
It is true that a seller of a product -will not be held strictly liable simply because that product is “inherently dangerous,” such as á knife that despite perfection in design can cause injury. It can be argued that a gun is inherently dangerous. On the other hand, a product should be safe for its intended use. The TA 38S was designed to be carried in a pocket, but the evidence shows it was unsafe to do so. Its intended purpose is to fire when the trigger is pulled intentionally not to fire when the hammer is inadvertently bumped. Thus, an inherently dangerous product can also be defective in its design or manufacture making it unsafe for its intended use. A manufacturer should not be able to escape liability just by warning of a dangerous condition which could reasonably have been avoided by a better design. Schell v. A.M.F., Inc., 567 F.2d 1259 (3d Circ.1977).

Trial Court Opinion, 9/13/93, pps. 15-17, and 10-14. Clearly, competent evidence was offered which supports the jury’s determination that the pistol was defective in design and manufacture.

In the alternative, appellants argue that they are entitled to a new trial because the admission into evidence of dissimilar gun-discharge accidents, improper jury instruction, and the preclusion into evidence of other lawsuits filed by appellees prejudiced appellants. We reject each of appellants’ claims. Our rationale is as follows.

“The decision whether to grant a new trial is within the discretion of the trial court, and the court’s decision will be overturned on review only if we determine that the court acted capriciously or palpably abused its discretion.” Houseknecht v. Walters, 404 Pa.Super. 85, 590 A.2d 20 (1991). “A wide degree of latitude in the determination of whether such evidence should be admitted is vested in the trial court.” Lynch v. McStome & Lincoln Plaza Assoc., 378 Pa.Super. 430, 436, 548 A.2d 1276, 1279 (1988).

First, appellants maintain that they are entitled to a new trial because the trial court admitted evidence of dissimilar gun discharges. We have held that evidence concerning other incidents involving the instrumentality that causes a plaintiffs harm may be relevant to a number of issues. It may tend to show that the instrumentality was unsafe, or it may tend to show that the defendant had actual or constructive notice of a condition that could cause harm. This evidence is admissible, however, only when the evidence concerns incidents sufficiently similar to the incident involving the plaintiff which occurred under similar circumstances. Id.

In Lynch, the plaintiff brought suit against a mall owner and an elevator manufacturer on negligence grounds for injuries she received when the escalator on which she rode stopped abruptly. The plaintiff did not assert a strict liability claim against either defendant. The plaintiff sought to introduce computer printouts, belonging to the escalator manufacturer, that reported incidents of abrupt stopping by various escalators. The trial court excluded the evidence since the reports did not provide sufficient information to allow a jury to consider them probative of the condition of the escalator. Specifically, the printouts did not indicate if the escalators involved were manufactured by the defendant, did not explain the circumstances of or causes for the various reported incidents, and did not indicate that the manufacturer knew of the condition. The court determined that the printouts could not provide the jury with any information from which it could conclude that the manufacturer was on notice that the escalator was malfunctioning or unsafe, thus giving rise to a post-sale duty to warn or correct the problem. Since the reports did not contain information which could have been considered probative of the problem, the court properly concluded that the only possible effect of their introduction would be prejudicial and excluded the evidence.

In the present case, the transcript reveals that the evidence introduced by appellees did not pertain specifically to the Excam TA38S derringer pistol. Appellants mischaracterize our holding in Lynch in order to bolster their argument. They maintain that under Lynch, evidence of similar firearms is not admissible unless they are manufactured by Excam. Furthermore, they argue that the evidence would be inadmissible to prove that a similar type of accidental discharge would happen with a gun manufactured by a different company.

Lynch does not stand for the narrow proposition offered by appellants. We stated that evidence concerning other accidents must be probative of the instrumentality which caused a plaintiffs harm. Instantly, the instrumentality was defined by the court to be a pocket pistol with an exposed hammer and a capacity to accidentally fire when its hammer was bumped while in the discharge position. The judge noted that the line of questioning pursued by appellees during direct examination of their expert, Mr. Fassnacht, explained that the defect asserted by appellees was the capacity of the derringer to fire when its hammer was bumped accidentally while in the discharge position. The court concluded, therefore, that appellants’ argument was based upon a distinction without a difference to the extent that it was directed to evidence of accidental discharges of other derringers similar in design to the TA38S model. Specifically, the other models to which the expert testified also had a tendency to discharge if their hammers were bumped while in the discharge position.

However, appellants argued that the TA38S model was equipped with a safety, while the other models were not. The court stated that the existence of the safety mechanism on the TA38S derringer was immaterial to the instant case since the safety on the TA38S engaged only when the gun was placed in the half-cocked position. Instantly, it did not engage since Mr. DiFranceseo testified that he put the gun in the pseudo half-cocked position, believing it to be the half-cocked position described in the instruction manual. The exposed hammer actually was transferred from what he thought to be a safe position to the down position. When in the down or “D” position, the exposed hammer, if bumped, could cause the gun to fire accidentally. The pseudo half-cocked position, which was not explained in the instruction manual, was not subject to the safety mechanism on the TA38S derringer, and therefore, the presence of the safety mechanism was not an issue.

Appellants argued that the distinction was important since the issue concerned how to design a safety mechanism that would prevent the TA38S from firing accidentally. They emphasized that the normal carrying position for the gun was not the “D” position but the half-cocked position as explained in the instruction manual. The judge overruled appellants’ objection and referred to their position as a distinction without a difference. We agree.

While all parties have clouded the issues quite effectively, the thrust of the case presented to the jury was to decide whether the derringer was defective in the manufacture since the instruction manual did not explain the pseudo half-cocked position; or whether the manufacture of the gun or its design was defective because there was a possible fourth position which was neither described in the instruction manual nor protected by a safety mechanism.

The testimony of appellees’ witness, Mr. Fassnacht, was elicited to show that exposed hammer, single-action firearms, similar to the TA38S model at issue, are defectively designed in that there is no adequate safety on the market which prevents the hammer from striking the firing pins. He added that the weapon is also defective in the manufacture because the safety does not function to prevent the gun from discharging accidentally. He testified further that the manual was defective because it did not alert the user to the possibilities of accidental firing in the pseudo half-cocked position. He opined that the gun should be manufactured so that the hammer could not be placed in a pseudo half-cocked position, or the instruction manual should have warned against the possibility.

Appellants rely upon Whitman v. Riddell, 324 Pa.Super. 177, 471 A.2d 521 (1984), for the proposition that evidence involving only an Excam manufactured model derringer TA38S would be substantially similar, probative, and therefore, admissible. They argue that as evidence becomes more dissimilar, the potential confusion created could prejudice a jury’s decision. To the extent that variables cause confusion and prejudice, we agree with appellants’ argument. However, as appellants have misstated the law created by Whitman, we reject their reliance upon that case for the proposition stated. In fact, in Whitman we specifically stated that variables which contribute to a potential accident must be considered carefully before a party may draw a corollary. In Whitman, the case centered around a dangerous intersection where an overhead traffic signal turned green in two directions at one time. Evidence of other accidents at the intersection was offered to show that the city should have been aware of the dangerous nature of the intersection and that the lack of maintenance of the malfunctioning traffic signal could foreseeably result in accidents. We stated that evidence of other accidents at the intersection would be allowed only if they occurred under the same or similar circumstances, and various factors such as road conditions were considered. We determined that other accidents occurring at the same intersection from different causes did not constitute similar accidents under the same or similar conditions. In this scenario, it is obvious that our pivotal concern focused on the circumstances surrounding the accident. The similarity of the circumstances determined whether the evidence was admissible.

Instantly, appellants do not argue that the circumstances of the accident hold any importance with regard to the introduction of comparative evidence. They argue only that appellees should have been limited to introducing evidence pertaining specifically to Excam model TA38S derringers that accidentally discharged. They maintain that evidence from similar model derringers which accidentally discharge when their exposed hammer is inadvertently bumped is not substantially similar so as to avoid prejudice. We disagree. The court consistently ruled that other incidents involving accidental discharges of weapons possessing the identical design features of the TA38S derringer were admissible into evidence since the critical nature of the defect, at issue, is the capacity of the TA38S to fire accidentally after a collision with another object, as opposed to a user intentionally pulling the trigger. We conclude that the record reflects the trial court’s thoughtful consideration of the issues and the impact of the evidence admitted. Likewise, we find no evidence of a capricious abuse of discretion.

Next, appellants maintain that they are entitled to a new trial due to an improper jury instruction. On the theory of proximate cause, the trial court charged that if the jury determined that the gun was defective and that the defect was a substantial factor in causing the injuries, the plaintiffs might recover even if there were other substantial factors contributing to the cause of those accidents. Appellants essentially maintain that even if the gun was defective, appellee was a substantial factor in causing his own injuries because he should not have carried this pistol in his pocket. They also assert that appellee is at fault on the basis that the business of operating a bar is not sufficiently dangerous to require the handling of a firearm. This is an obvious attempt to avoid a proper discussion of the law in Pennsylvania, which is clear. Strict liability requires only two elements of proof: that the product was defective and that defect was a proximate cause of the plaintiffs injuries. See Berkebile v. Brantley, supra. Even if appellee was negligent, he cannot be precluded from recovery in a strict liability case. Id. Only evidence of abnormal use is admissible for rebutting appellees’ contentions of defect and legal cause. It is not a separate defense. Id. The jury instructions properly reflected Pennsylvania law.

Lastly, appellants maintain that they are entitled to a new trial since they were precluded from introducing evidence of another lawsuit filed by appellees. Admittedly, appellants were attempting to undermine the credibility of appellee and his wife by painting them as litigious individuals. The court determined that the prejudicial impact of the evidence offered would have outweighed its probative value.

Appellants maintain that other jurisdictions have held that where a plaintiff who does not engage in hazardous activities has presented multiple claims arising out of multiple accidents prior to the one currently at issue, the probative nature of the evidence renders it admissible since it may point to the possibility of chance repetitions of similar accidents to the same person. While we are not bound by the determination of other jurisdictions, it is obvious that appellants’ arguments are immaterial to the case at bar. There was no attempt on the part of appellants to introduce evidence that appellees had filed other lawsuits relating to defectively manufactured or designed products. The only evidence offered related to one automobile accident claim. This hardly supports the characterization appellants purported to make of the repetitious behavior of overly litigious individuals. The court properly precluded the introduction of the other lawsuit filed by appellees due to its potential prejudicial impact upon the jury.

Order affirmed.

      . We note that the jury determined that the derringer was defective in both design and manufacture. Appellants make no argument with regard to the jury’s finding that the derringer was defective in the manufacture.

      . Appellants bootstrap a challenge of the qualifications of appellees’ experts to this argument. They argue that neither witness is qualified to testify regarding alternative designs to the TA38S derringer because neither man holds a patent in the area nor has experience in the designs of these derringers. On this basis, they challenge the validity of the opinions and recommendations of the appellees’ experts.

      . § 402A Special Liability of Seller of Products for Physical Harm to User or Consumer.
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused thereby to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product; and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . The Excam model TA38S derringer is marketed as a pocket pistol.