author: HOFFMAN, Judge. JOHNSON, Judge,

text:
    640 A.2d 446
    Theodore and Mary MURRAY, H/W v. PHILADELPHIA ASBESTOS CORPORATION, GAF Corporation, Raymark Corporation, Southern Textile Company, Garlock Inc., Fibreboard Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Celotex Corporation, J.P. Stevens and Company, Inc., and Owens-Illinois, Inc. Appeal of FIBREBOARD CORPORATION. Theodore MURRAY and Mary K. Murray, H/W v. PACOR, INC., Eagle Picher Industries, Keene Corporation, Southern Textile Company, J.P. Stevens Company, Celotex, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Forty-Eight Insulation, Inc. and Raymark, Inc. Appeal of OWENS-ILLINOIS, INC. Theodore MURRAY and Mary K. Murray, H/W v. PACOR, INC., Eagle Picher Industries, Keene Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Celotex, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Forty-Eight Insulation, Inc. and Raymark, Inc. Appeal of KEENE CORPORATION. James R. and Eleanor L. SIMMONS, H/W v. PHILADELPHIA ASBESTOS CORPORATION, GAF Corporation, Raymark Corporation, Southern Textile Company, Garlock, Inc., Fibreboard Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Celotex, Corporation, J.P. Stevens and Company, Inc., and Owens-Illinois Glass Co. Appeal of FIBREBOARD CORPORATION. James R. SIMMONS and Eleanor L. Simmons, H/W v. PACOR, INC., Eagle Picher Industries, Keene Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Celotex, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Forty-Eight Insulation, Inc. and Raymark, Inc. Appeal of OWENS-ILLINOIS GLASS CO. James R. SIMMONS and Eleanor L. Simmons, H/W v. PACOR, INC., Eagle Picher Industries, Keene Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Celotex, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Forty-Eight Insulation, Inc. and Raymark, Inc. Appeal of KEENE CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 9, 1993.
    Filed April 11, 1994.

      Ira Lefton and David A. Cohen, Philadelphia, for Fibreboard, appellant (at 2859 and 2862), Owens-Illinois, appellant (at 2860 and 2863), Keene Corp., appellant (at 2861 and 2864)
    Steven J. Cooperstein, Philadelphia, for Murray and Simmons, appellees.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

Before this court are the consolidated appeals of Fibreboard Corporation [“Fibreboard”], Keene Corporation [“Keene”] and Owens-Illinois, Inc. [“O-I”] from the order of the Court of Common Pleas of Philadelphia County entered July 23, 1992. In the order, the court denied appellants’ motion for judgment notwithstanding the verdict, new trial or remittitur; granted appellees’, Theodore and Mary Murray and James and Eleanor Simmons, motions for delay damages; and entered judgment against appellants.

Appellant Fibreboard presents the following contentions of trial court error:

A. The court below erred in denying Fibreboard’s motion for judgment notwithstanding the verdict.
B. The court below erred in denying Fibreboard’s motion for a new trial.
C. The Court below erred in failing to grant Fibreboard’s motion for remittitur.
D. The Court below erred in awarding delay damages.

Fibreboard’s Brief at 3.

Appellants Keene and O-I present the following allegations of trial court error:

I. Did the trial court err in allowing into evidence portions of the Selikoff Study where such evidence lacked foundation, was hearsay and prejudicial to appellants?
II. Did the trial court err in failing to charge the jury that an award for an increased risk of cancer must bear a reasonable relationship to the size of the actual risk?
III. Are appellants Owens-Illinois, Inc. and Keene Corporation entitled to a substantial remittitur of the jury’s award which was excessive and outrageous based upon the evidence adduced at trial?

Keene and O-I’s Brief at 3.

Appellees brought suit against several asbestos manufacturers and suppliers including appellants for injuries allegedly resulting from occupational asbestos exposure. A reverse-bifurcated trial began on June 6, 1991, before the Honorable Charles Wright. The jury returned verdicts in favor of appellees, awarding $350,000 each. Subsequently, the parties stipulated Keene would be liable for one-sixth verdict share, Fibreboard for one-sixth verdict share and O-I for one-ninth verdict share to Simmons and one-seventh verdict share to Murray. Appellants filed post-trial motions requesting a judgment notwithstanding the verdict, new trial or remittitur.' Appellees filed post-trial motions requesting delay damages. The court denied appellants’ motions and granted appellees’ motions. These timely appeals followed.

On December 3, 1993, Keene Corporation filed a bankruptcy petition under 11 U.S.C. § 301 in the United States Bankruptcy Court for the Southern District of New York. In light of the automatic stay provisions of the United States Bankruptcy Code, we must preliminarily determine whether this court may address the merits of Keene’s appeal.

11 U.S.C. § 362(a)(1) provides as follows:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]

Id.

We point out that this stay includes “appeals in actions that were originally brought against the debtor, regardless of whether the debtor is the appellant or the appellee.” Borman v. Raymark, Industries, Inc., 946 F.2d 1031, 1033 (3rd Cir.1991). Moreover, the stay may not be waived by either creditor or debtor. Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1206 (3rd Cir.1991). Finally, “[t]he automatic stay’s effect on judicial proceedings against the debtor does not depend upon whether the court finds for or against the debtor.” Id.

As Keene’s appeal arises from an action brought against Keene before the filing of his bankruptcy petition, we must stay Keene’s appeal pending the conclusion of the bankruptcy proceedings. Moreover, as the automatic stay applies only to the bankrupt debtor, we must sever Keene from the instant appeal. See 11 U.S.C. § 362(a). See also Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d at 1205. Accordingly, we will proceed with the merits of Fibreboard’s and O-I’s respective claims in seriatim.

Fibreboard first contends that the trial court erred in denying Fibreboard’s motion for judgement notwithstanding the verdict. Specifically, Fibreboard contends that as appellees suffered no impairment. to their physical health and lifestyle as a result of their pleural thickening, they suffered no compensable asbestos-related injury. We agree and accordingly reverse and vacate the judgment entered against Fibreboard.

Preliminarily, we note that a judgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper. See Scullion v. EMECO Indus., 398 Pa.Super. 294, 299, 580 A.2d 1356, 1358 (1990), allocatur denied, 527 Pa. 625, 592 A.2d 45 (1991); Robertson v. Atlantic Richfield Retro., 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1988). Here, the evidence produced at trial established that appellees Theodore Murray and James Simmons had asymptomatic pleural thickening. N.T. of Dr. Stanley Altschuler, 6/6/91 at 100-103.

This court en banc has recently determined that pleural thickening, when asymptomatic does not give rise to a cause of action. Giffear v. Johns-Manville, Corp., et al., 429 Pa.Super. 327, 632 A.2d 880 (1993). The instant consolidated actions preceded this court’s decision in Giffear. However:

Where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Blackwell v. Commonwealth, State Ethics Comm’n, 527 Pa. 172, 188, 589 A.2d 1094, 1102 (1991) quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

Here Fibreboard argued at trial, in post-trial motions and in this appeal, that their motion for judgment notwithstanding the verdict should have been granted, as appellees suffered no damages as a result of their asymptomatic pleural thickening and hence had no compensable injuries. This argument mirrors the court’s finding in Giffear:

Where we cannot find that one has suffered a symptomatic injury, how is it possible to assess damages? Had Mr. Giffear suffered from discernable physical symptoms, a functional impairment or disability resulting from the pleural thickening, the law supported by the Commonwealth’s public policy and economic reason, would clearly recognize that his injury would entitle him to an award of damages. It remains that, but for the fact that x-rays were taken revealing a pleural condition, Mr. Giffear would not have realized that such a condition even existed. It would hardly be fair to compensate him for something that has yet to manifest itself into a functional impairment.... In light of our findings today, there is no reason for the courts to entertain claims based on a discovery of asymptomatic pleural thickening. Without evidence that such a condition is causing ascertainable physical symptoms, impairment, or disability, pleural thickening is a non-compensable injury and, therefore, does not give rise to a cause of action.

Giffear at 429 Pa.Super. at 341, 632 A.2d at 887-888. Thus, Fibreboard has preserved the applicability of Giffear to the present case. Applying Giffear, appellees cannot as a matter of law recover for their asymptomatic pleural thickening. Therefore, the trial court erred in denying Fibreboard’s motion for a judgment notwithstanding the verdict. Accordingly, the order of the trial court is reversed and the judgment is vacated as to Fibreboard.

O-I has not raised on appeal the issue of the trial court’s denial of its motion for judgment notwithstanding the verdict. However, we believe that O-I has also preserved the issue of the application of the holding of Giffear to the instant case by its third argument presented on appeal. O-I contends that the trial court erred in denying its motion for remittitur or in the alternative awarding a new trial. O-I states the following in support of this claim:

The awards to both Mr. Simmons and Mr. Murray were grossly excessive. Plaintiffs’ own medical expert, Dr. Altschuler, testified that neither plaintiff suffered from any physical symptom, including shortness of breath, as a result of any asbestos-related disease or condition. Likewise, there was no claim of any wage loss, medical expenses or other out-of-pocket expenses. Moreover, there was no testimony, or evidence, which demonstrated that either plaintiff was prevented from working in any way as a result of any asbestos-related condition---- Their present injuries which cause no real or substantial impairment, are not a proper basis for the award of such a huge sum.

O-I’s Brief at 25-26. This argument presents essentially the same question answered by the court in Giffear, i.e., whether it is proper to award damages for an asymptomatic condition. Thus, we believe that O-I has properly preserved the issue of the application of the holding of Giffear to the instant case. See Lampfield v. Keene Corp., 428 Pa.Super. 409, 631 A.2d 207 (1993).

The decision to order remittitur or grant a new trial because of excessiveness of the damages awarded is committed to the discretion of the trial court and will not be reversed absent an abuse of discretion. Taylor v. Celotex Corp., 393 Pa.Super. 566, 595, 574 A.2d 1084, 1099 (1990). Remittitur is proper when it is apparent that “the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants.” Taylor v. Celotex Corp., 393 Pa.Super. 566, 594, 574 A.2d 1084, 1099 (1990) (quoting Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 352, 464 A.2d 355, 357-358 (1983)). A new trial on damages should be granted only if the award is so excessive that it “shocks our sense of justice.” Taylor, at 593, 574 A.2d at 1098 (quoting Glomb v. Glomb, 366 Pa.Super. 206, 216-217, 530 A.2d 1362, 1368 (1987)).

In Giffear as stated above, the court held that asymptomatic pleural thickening is no longer a.compensable injury in Pennsylvania. The trial court therefore abused its discretion in not granting O-I remittitur or in the alternative granting a new trial on the issue of damages. As there was no compensable injury suffered by either appellees, any damages awarded are excessive and shocking to the conscience of the court. In accordance with the reasoning of the Giffear decision, we feel it is unnecessary to remand for a new trial on damages and therefore we vacate the judgment as to O-I.

Accordingly, Keene’s appeal is stayed pending the conclusion of the bankruptcy proceedings. We vacate that part of the July 23,1992 judgment as entered against Fibreboard and O-I.

Stayed in part; reversed in part; vacated in part.

JOHNSON, J. files a Dissenting Opinion.

JOHNSON, Judge,

dissenting.

First, I must dissent from the determination of the Majority that the asbestos-caused pleural thickening of appellees Murray and Simmons is not compensable as a matter of law. I do so because I am unable to conclude that appellant Fibreboard Corporation has preserved this issue for appellate review.

The Majority holds that the trial court erred in failing to grant the judgment notwithstanding the verdict requested by Fibreboard in that “Fibreboard argued at trial, in post-trial motions and in this appeal, that their motion for judgment notwithstanding the verdict should have been granted, as appellees suffered no damages as a result of their asymptomatic pleural thickening and hence had no compensable injuries.” Majority Opinion at 212. In reviewing a motion for judgment notwithstanding the verdict:

[T]he evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor---- Further, “a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations.”
There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first[,] a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second[,] the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992) (quotations and citations omitted). In the present case, the majority concludes that judgment notwithstanding the verdict is compelled as a matter of law based on Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993); see Majority Opinion at 212. Yet, the conclusion of the Majority is stated in a manner indicating that the evidence compels a factual conclusion different from that arrived at by the jury. See Majority Opinion at 212-213. Absent an analysis of the evidence which would impel the conclusion that the evidence fails to support the verdict of the jury, this Court is unable to make such a determination. Moure, supra, 529 Pa. at 402, 604 A.2d at 1007. Here the Majority not only fails to apply the appropriate standard, but neglects to supply the accompanying analysis.

Even if the Majority had applied the appropriate standard, accompanied by the necessary analysis, I would conclude that this determination of the Majority fails. Giffear holds as a matter of law, that asymptomatic pleural thickening is a noncompensable injury. 429 Pa.Super. at 335, 632 A.2d at 884. During the discussion of jury instructions, counsel for Fibreboard conceded that the issue of whether pleural thickening is compensable is “for the jury to decide.” N.T. June 10, 1991, at 1.264; Murray, R.R. 617a; Simmons, R.R. 596a. Once Fibreboard has conceded that the compensability of pleural thickening is a question for the trier of fact, Giffear cannot apply. Therefore, I conclude that this issue has not been preserved for appellate review.

In its brief to this Court, Fibreboard maintains that it has preserved the issues raised in this appeal, having taken “exceptions to various trial court rulings (R. 609a-[6]lla), and filed Post-Trial Motions on June 28, 1991 (R. 12a[-22a]).” Murray Brief at 5; Simmons Brief at 5. The first pages referenced by Fibreboard encompass exceptions to the jury charge. See N.T. June 11, 1991, Afternoon Session at 1.256-1.258; Murray R.R. at 609a-611a; Simmons R.R. at 588a-590a.

In reviewing a claim that the trial court erred in instructing the jury, the proper test is whether the charge in its entirety, against the background of the evidence in the particular case, demonstrated that error was committed which was prejudicial to the complaining party; this Court will not consider portions of the charge out of context or reverse solely on the basis of isolated inaccuracies. Butler v. Kiwi, S.A., 412 Pa.Super. 591, 604 A.2d 270 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992). An erroneous jury instruction may only provide a basis for a new trial if it can be shown that the instruction was fundamentally in error and may have been responsible for the verdict, or if the charge has a tendency to mislead or confuse the issue presented. Soda v. Baird, 411 Pa.Super. 80, 600 A.2d 1274 (1991), appeal denied, 532 Pa. 665, 616 A.2d 986 (1992). A trial court may properly refuse a requested point for charge when the substance of that request has already been given via a general or specific instruction. Butler v. Kiwi, S.A., supra. Moreover, the trial court is not required to use the exact language of a requested point for charge; it need only choose a form of expression which adequately and clearly covers the subject. Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 527 A.2d 134 (1987), appeal denied, 517 Pa. 613, 539 A.2d 810 (1988).

Fibreboard argues that the trial court failed to instruct the jury that it must find “compensable” pleural thickening in order to award damages to Murray and Simmons. This claim is meritless. The trial court instructed the jury that it must find “compensable asbestos-related disease or injury” in order to award damages to Murray and Simmons. N.T., supra at 1.292-1.293, 1.296; Murray R.R. at 645a,-646a, 649a; Simmons R.R. at 624a-625a, 628a. In addition, the trial court accurately defined the term “physical injury” for the jury to enable the jury to understand what constituted a “compensable asbestos-related disease or injury.” Here, the trial court gave the jury the substance of the instruction Fibreboard claims was omitted. Id. at 1.292-1.293, 1.296; Murray R.R. at 645a; Simmons R.R. at 633a.

Fibreboard also argues that the trial court failed to utilize the language of the jury instructions proposed by Fibreboard. Fibreboard, however, disregards that the trial court has broad discretion in charging the jury and may use any particular language so long as the applicable law is fully and accurately conveyed. Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991), appeal denied, 530 Pa. 644, 607 A.2d 254 (1992). I do not find error in the jury charge.

Fibreboard also contends that the issues have been preserved in its Post-Trial Motions filed on June 28, 1991. R.R. 12a-22a. In these motions, Fibreboard, in essence, asserted that the medical evidence was insufficient to support a claim for damages, raised various complaints with respect to the jury charge, and requested remittitur. Murray at R.R. 12a-22a; Simmons at R.R. 12a-22a. Nowhere do I find an assertion by Fibreboard that “appellees suffered no compensable damages as a result of their asymptomatic pleural thickening and hence had no compensable injuries.” In order to preserve an issue for appeal, a litigant must make a timely, specific objection at trial and must specifically raise the issue in post-trial motions; issues not preserved for appellate review cannot be considered by an appellate court even though the alleged error involves a basic or fundamental error. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). I would find that these issues have not been preserved for appellate review.

Second, I am unable to agree with the determination of the Majority that “Keene [Corporation and Owens-Illinois Glass Company] have also preserved the issue of the application of the holding of Giffear” by their assertion “that the trial court erred in denying their motion for remittitur.” Majority Opinion at 218-214. In support of the claim that the trial court erred in denying the motion for remittitur, the Majority holds that the following quote from Keene and Owens-Illinois’ Brief presents the same question answered in Giffear:

[T]he awards to both Mr. Simmons and Mr. Murray were grossly excessive. Plaintiffs’ own medical expert, Dr. Altschuler, testified that neither plaintiff suffered from any physical symptom, including shortness of breath, as a result of any asbestos-related disease or condition. Likewise, there was no claim of any wage loss, medical expenses or other out-of-pocket expenses. Moreover, there was no testimony, or evidence, which demonstrated that either plaintiff was prevented from working in any way as a result of any asbestos-related condition.... Their present injuries, which cause no real or substantial impairment, are not a proper basis for the award of such a huge sum.

Brief of Keene and Owens-Illinois, at 25-26, quoted in the Majority Opinion at 213-214. Giffear would be applicable only if this were asymptomatic pleural thickening. However, medical testimony established that both Murray and Simmons had symptomatic pleural thickening in that they had shortness of breath upon exertion. N.T. June 6, 1991, at 50-51, 72, 110; Murray R.R. at 337a-338a, 359a, 396a; Simmons R.R. at 316a-317a, 338a, 375a. In view of this, at the threshold, I would find Giffear inapposite.

Moreover, I find it to be unsettling that the Majority would apply this Court’s decision in Giffear v. Johns-Manville Corp., supra, to these consolidated cases retroactively. The Giffear decision itself fails to specify whether the holding is to be applied prospectively only or whether the holding is to be given retroactive application. The Majority would apply Giffear retroactively on the basis that:

Where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Blackwell v. Commonwealth State Ethics Comm’n, 527 Pa. 172, 188, 589 A.2d 1094, 1102 (1991) quoting Commonwealth v. Cabeza, 508 Pa. 228, 233, 469 A.2d 146, 148 (1983). Thus, the Majority would hold that this new rule is to be applied retroactively to all pending cases if the issue has been properly preserved at all stages of the adjudication.

While Blackwell states that “although retroactivity is the general rule, a sweeping rule of retroactive application is not justified. Retroactive application is a matter of judicial discretion which must be exercised on a case by case basis.” 527 Pa. at 182, 589 A.2d at 1099. As Blackwell sets forth:

The U.S. Supreme Court has viewed the decision of whether to apply a new rule retroactively or prospectively as a function of three considerations: (1) the purpose to be served by the new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the administration of justice by the retroactive application of the new rule. We have adopted this three-factor standard and apply it when a question of the retroactivity or nonretroactivity of a new decision is before us.

Id. at 183, 589 A.2d at 1099 (citations omitted).

Blackwell recounts three separate factors that are to be . considered in arriving at this determination:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed____ Second, it has been stressed that ‘we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’____ Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.[”]

Id. at 184, 589 A.2d at 1100, citing Chevron Oil Company v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971).

This Court has not yet expressly considered whether Giffear should apply retroactively or prospectively. There has been an assumption that Gijfear is to be applied retroactively notwithstanding that the issue has not been directly raised before our Court; and, notwithstanding that we have not had the benefit of reasoned argument by the parties on whom the burden of these decisions would fall.

I am unable to deem a request for remittitur sufficient to preserve the question of whether it is proper to award damages for even an asymptomatic condition pursuant to Gijfear. I fail to see that a request for remittitur has the particularity or precision to adequately preserve this issue. A request for remittitur alone is not sufficient to preserve this issue.

Moreover, I cannot agree that our Court should allow Giffear to be applied retroactively, absent considered and reasoned reflection. I would find this adoption of retroactivity particularly disturbing given the volume of these cases throughout the Commonwealth.

Accordingly, I dissent.

      . Because of our disposition of this issue we need not consider Fibreboard’s other contentions of trial court error.

      . Because of our disposition of this issue we need not consider the other issues raised on appeal by O-I.


source: Caselaw Access Project

author: POPOVICH, Judge. WIEAND, Judge,

license: Public Domain

text:
    640 A.2d 454
    COMMONWEALTH of Pennsylvania, Appellee, v. Cornell GALLOWAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 10, 1993.
    Filed April 12, 1994.

      Mitchell A. Sommers, Ephrata, for appellant.
    Joseph C. Madenspacher, Dist. Atty., Lancaster, for Com., appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Lancaster County which dismissed appellant’s petition for post-conviction relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A §§ 9541 et seq. On March 29, 1977, appellant was convicted of murder in the first degree in the slaying of Daniel Gebhard and murder in the first degree as a principal in the second degree in the death of Barry Kimmet. We affirm appellant’s conviction in the death of Barry Kimmet, but we reverse his conviction for the murder of Daniel Gebhard and remand for a new trial.

Herein, appellant contends that he is entitled to a new trial. He argues that the lower court erred in refusing to apply retroactively Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), which bars the admission of hypnotically-induced testimony. See, 42 Pa.C.S.A. § 9543(a)(2)(i). Appellant also contends that he is entitled to post-conviction relief because he was not informed prior to trial that the Commonwealth’s key-witness was hypnotized and such information would have affected the outcome of the trial. See, 42 Pa. C.S.A. § 9543(a)(2)(vi). Finally, appellant argues that the Commonwealth violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires the Commonwealth to disclose all material, exculpatory evidence, since the Commonwealth failed to disclose that its key witness’ recollection was hypnotically-refreshed prior to trial. See, 42 Pa.C.S.A. § 9543(a)(2)(i).

The record reveals that on August 2, 1969, Daniel Gebhard and Barry Kimmet were slain in related drive-by shootings. Those shootings were the result of racial unrest in the city of Lancaster. Appellant and numerous other black persons traveled in at least two vehicles to the area of Bleacher’s Cafe, where certain white persons who allegedly threatened other black persons, were said to be waiting to fight. At trial, appellant admitted to being in the one of the automobiles when the men were shot. However, he denied having possessed or shot a weapon during the incidents. Nevertheless, appellant was convicted of shooting Daniel Gebhard in the head with a high-powered rifle. He was also convicted of aiding and abetting his brother, Lorenzo Galloway, who shot Barry Kimmet in the head with a high-powered rifle.

The Commonwealth presented the testimony of Dorothy Easley who was driving one of the two vehicles which participated in the shootings. She testified that she saw appellant lean out of the front passenger window of the other vehicle with a rifle in his hand, take aim and shoot. She also testified that afterwards, she heard appellant say to his brother Lorenzo that “I got one, and you got the other.”

It is important to note that the shootings took place almost eight years prior to the trial. That fact is significant because appellant only recently became aware that Dorothy Easley was hypnotized prior to trial to refresh her recollection of the long-past event. The Commonwealth acknowledges that Ms. Easley was hypnotized approximately six months prior to trial by John B. Shenk. However, the Commonwealth avers it possesses no other information concerning the event. It is undisputed that neither appellant nor his counsel was informed of the hypnosis prior to trial.

First, we will address appellant’s contention that he is entitled to a new trial because the Commonwealth introduced the testimony of Dorothy Easley whose recollection of the events of August 2, 1969, were hypnotically refreshed prior to trial. Appellant correctly notes that in Commonwealth v. Nazarovitch 496 Pa. 97, 436 A.2d 170 (1981), our Supreme Court held that a witness’ hypnotically-refreshed testimony was properly excluded where the witness had no recollection of the facts which would have been the subject of the testimony prior to the hypnosis. Our Supreme Court again rejected the use of hypnotically-induced testimony in Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984). See also, Commonwealth v. DiNicola, 348 Pa.Super. 405, 502 A.2d 606 (1985), cert. denied, 484 U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 768 (1988); Commonwealth v. Reed, 400 Pa.Super. 207, 583 A,2d 459 (1990), allocatur denied, 528 Pa. 629, 598 A.2d 282 (1991); Commonwealth v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1982).

Despite the fact that hypnotically-refreshed testimony is generally not admissible, appellant is not entitled to post-conviction relief on the basis of the rule of evidence set forth in Nazarovitch, supra. “[A] new rule of law to which we give retroactive effect, will not be applied to any case on collateral review unless that decision was handed down during the pendency of an appellant’s direct appeal and the issue was properly preserved there, or, as here, is non-waivable.” Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986). See also, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (setting forth the federal rule for retroactive application of new law in collateral proceedings); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) (applying Gillespie); Commonwealth v. Riggins, 374 Pa.Super. 243, 255, 542 A.2d 1004, 1010 (1988), allocatur denied, 522 Pa. 583, 559 A.2d 527 (1989) (applying Gillespie and citing cases). Nazarovitch, supra, was decided by our Supreme Court on October 29, 1981, and appellant’s conviction became final when our Supreme Court affirmed his judgment of sentence on September 24, 1981. See, Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981). Thus, appellant is not entitled to post-conviction collateral relief since his criminal judgment was final prior to the Supreme Court’s decision to exclude hypnotically-influenced testimony from admission at trial.

Appellant also claims that he is entitled to a new trial because the recently-discovered evidence of Ms. Easley’s hypnosis constituted “exculpatory evidence [unavailable at the time of trial] that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). To be entitled to a new trial on the basis of after discovered evidence, appellant must establish, “that the evidence was discovered after trial and could not have been obtained at trial by reasonable diligence, that it is not cumulative or of such a nature that it merely impeaches credibility, and that it would be likely to compel a different result.” Commonwealth v. Conley, 232 Pa.Super. 432, 335 A.2d 721, 722 (1975) (applying identical language of the now-repealed Post Conviction Hearing Act). See also, Commonwealth v. Favinger, 358 Pa.Super. 245, 250, 516 A.2d 1386, 1389 (1986), allocatur denied, 516 Pa. 612, 531 A.2d 779 (1987). Since the evidence in question, i.e., that Ms. Easley was hypnotized six-months prior to trial, goes solely to the credibility of her testimony, appellant is not entitled to relief pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi).

Despite our refusal to grant relief based on appellant’s first two assertions of error, we nevertheless conclude that appellant has presented a meritorious claim that the Commonwealth impermissibly violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct 1194, 1196, 10 L.Ed.2d 215, 218 (1963), wherein the United States Supreme Court held: “[T]he suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution.” Appellant asserts that information concerning the hypnosis of Ms. Easley is the type of evidence which the Commonwealth was required to produce pursuant to Brady, supra, and we agree.

In Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, 108 (1972), the United States Supreme Court, quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217, 1220 (1959), clearly stated: “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general [Brady] rule.” Thus, at the time of appellant’s trial, the Commonwealth was required to provide appellant with information in its possession which impacted upon the credibility of its witnesses. We are convinced that the evidence of Ms. Easley’s hypnosis is clearly evidence affecting credibility.

However, to be entitled to a new trial under Brady, supra, and its progeny, the evidence affecting credibility must be material. See also, Giglio, supra; Agurs, supra; Commonwealth v. Wallace, 500 Pa. 270, 275-80, 455 A.2d 1187, 1190-1192 (1983); Commonwealth v. Rose, 483 Pa. 382, 393-97, 396 A.2d 1221, 1227-1229 (1979); Commonwealth v. Cain, 471 Pa. 140, 152, 369 A.2d 1234, 1240 (1977); Commonwealth v. Floyd, 259 Pa.Super. 552, 557-558, 393 A.2d 963, 966-967 (1978). In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the United States Supreme Court, after reviewing Brady, supra, and its progeny, concisely defined “materiality” as follows:

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.

Thus, we are required herein to determine whether there is a reasonable probability that, had the jury been permitted to weigh the testimony of Dorothy Easley in light of her hypnosis by the Commonwealth, the result of the proceeding would have been different. We assess whether there is a “probability sufficient to undermine [our] confidence in the outcome” in light of the “totality of the circumstances”. Bagley, 473 U.S. at 683, 105 S.Ct. at 3384. See also, Giglio, 405 U.S. at 154, 92 S.Ct. at 766; Porretto v. Stalder, 834 F.2d 461 (5th Cir.1987); Wallace, supra; Rose, supra; Engberg v. Meyer, 820 P.2d 70 (Wyo.S.Ct.1991).

Instantly, both the lower court and the Commonwealth submit that there is “no reasonable probability that the result of the proceeding would have been different” had appellant been able to impeach Ms. Easley on the basis of her hypnosis. In support thereof, the lower court and the Commonwealth note that Ms. Easley was “only one of twenty-five witnesses called by the Commonwealth who implicated petitioner in the double murder for which he was convicted and thus the Commonwealth did not rely ‘almost entirely’ on her testimony ...” Trial Court Opinion, pp. 6-7. However, such a summation distorts the facts with respect to the death of Daniel Gebhard.

It is undisputed that appellant was involved in the racial violence and the two murders which took place on the evening of August 2,1969. Appellant admitted that he and his brother Lorenzo Galloway helped to organize the group of blacks who later drove through Lancaster and shot Daniel Gebhard and Barry Kimmet. N.T., p. 1407-1410. Appellant admitted he was seated in the front right passenger seat of one of the cars. He also stated that Jonathan Evans was driving the car, Robert Hobbs was seated in the middle of the front seat, and Lorenzo Galloway, Dale Troop and Barry Wright were seated in the back seat, with Lorenzo located directly behind him in the right rear seat. N.T., pp. 1411-1412. He admitted he was seated in the car when the shots were fired by someone in the back seat, although he stated he did not see who fired the shots. N.T., pp. 1411, 1421. Appellant later attributed the shots to his brother Lorenzo Galloway.

The Commonwealth presented similar evidence and, excepting the testimony of Dorothy Easley, the most significant testimony was that of the other persons travelling with appellant in Robert Hobbs’ car. Robert Hobbs testified that he was seated in middle of the front seat of his car, while Jonathan Evans drove. He also testified that Dale Troop was in the left rear seat and Lorenzo Galloway was in the right rear seat. Hobbs could not remember where appellant was seated, although he knew appellant and Barry Wright were also in the car. N.T., pp. 1059, 1063. Hobbs stated that he heard two shots fired from the back seat of the car and that he later found two spent shell casings in the back seat. N.T., pp. 1063-1065. He stated that he saw Lorenzo Galloway in possession of a rifle while he was seated in the rear seat of the car. However, he could not remember who held the other rifle. Most importantly, Hobbs testified that he did not see who fired the shots. N.T., pp. 1062-1065. Hobbs also testified that in exchange for his testimony, the Commonwealth agreed not to prosecute him for murder. N.T., p. 1081.

Jonathan Evans also testified that he was driving the car in which Robert Hobbs, Barry Wright, Dale Troop, Lorenzo Galloway and appellant were passengers and that only he and Hobbs were seated in the front seat. N.T., pp. 1089-1090. He further testified that he heard shots fired from the back seat of the car. However, he never saw any weapons and, more importantly, did not see who fired the shoots. N.T., p. 1091.

Barry Wright agreed that he, appellant, Lorenzo Galloway, Jonathan Evans, Dale Troop and Robert Hobbs were in Hobbs’ car. Wright testified that Dale Troop was in the left rear seat, Lorenzo Galloway was in the middle of the rear seat and he was in the right rear seat., N.T., pp. 1141. Wright testified that he possessed a shotgun, Troop had a pistol and Lorenzo Galloway had a Winchester rifle. N.T., p. 1142. Wright also admitted to having discharged his weapon. N.T., p. 1143. Wright stated that after firing his gun, he ducked to the floor of the rear seat. N.T., p. 1142, 1144. Several minutes later, he heard another shot but did not see who fired it. N.T., p. 1144. After that shot, Wright testified that he heard appellant say “I got him.” N.T., pp. 1142, 1144. Wright also testified that he had entered into a plea agreement with the Commonwealth wherein exchange for his testimony, he would receive a eleven and one-half month to twenty-three month sentence for his involvement in the shootings. N.T., p. 1138.

Dale Troop testified that he, Barry Wright and Lorenzo Galloway were seated in the back of the Hobbs’ car, and appellant was seated in the right front seat. N.T., pp. 1318-1319. He testified that he heard shots fired from the car, but that he did not see who fired the shots. N.T., p. 1319. He also testified that he possessed a thirty-eight caliber revolver and Lorenzo Galloway possessed either a rifle or a shotgun. N.T., p. 1336.

Lorenzo Galloway was deceased at the time of the trial. Other than those persons in Hobbs’ vehicle. Dorothy Easley was the Commonwealth’s most significant witness, and, certainly, in regards to the death of Daniel Gebhard, she was the Commonwealth’s key witness against appellant. Ms. Easley testified, inter alia, that she was driving the vehicle which was following appellant and the Hobbs vehicle. N.T., p. 1203. She stated that she saw appellant lean out of the car window with a gun and fire a shot. N.T., p. 1204. She also testified that she had earlier seen both appellant and Lorenzo Galloway in possession of rifles. N.T., p. 1205. Finally, Ms. Easley stated that, after the shooting, she overheard appellant say to his brother Lorenzo, “I got one and you got the other one. You know, I had to come and get you [Lorenzo] because none of these other hilly mother fuckers are going to do anything and I know that and nobody has any heart but you and me.” N.T., p. 1207. She also said that appellant and Lorenzo Galloway admitted to the killings on other occasions. N.T., pp. 1208, 1209. She also testified that in exchange for her testimony, she was hoping for a reduction of a federal bank robbery sentence she was serving.

Numerous other witnesses testified on behalf of the Commonwealth. However, with the sole exception of Dorothy Easley, not a single witness testified that he or she saw appellant fire a weapon. In fact, contrary to the lower court’s recitation of the facts, not a single witness, other than Ms. Easley, testified that appellant was in possession of a gun on the night in question. Further, only Dorothy Easley testified that she saw and heard appellant admit to the shooting. The Commonwealth submits that the evidence of Dorothy Easley’s hypnosis is not material because of the overwhelming evidence of appellant’s guilt. While we agree with the Commonwealth when we review appellant’s conviction in the death of Barry Kimmet, we must disagree when we apply the same analysis to his conviction in the death of Daniel Gebhard.

It is undisputed that appellant was not the person who shot Barry Kimmet, and he was convicted as a principal in the second degree in the first degree murder of Mr. Kimmet. As the preceding recitation of the facts and other trial testimony reveals, appellant was undoubtedly an active participant in both of the shootings and the only significant question was whether he was the “trigger man” in the murder of Daniel Gebhard. The testimony of Dorothy Easley, albeit prejudicial to appellant’s case, was not crucial to appellant’s conviction for first degree murder of Barry Kimmet as a principal in the second degree. Even if appellant had been able to impeach Ms. Easley’s credibility with evidence of hypnosis, other evidence of Ms participation as a principal in the second degree in the murder of Barry Kimmet was overwhelming. Simply, impeachment of Ms. Easley would not have undermined our confidence in Ms conviction as it related to the death of Mr. Kimmet. Cf., Porretto, 834 F.2d at 465-466 (given overwhelming evidence and numerous attacks on eyewitness’ crediMlity, failure to disclose hypnosis of witness did not affect verdict and was not Brady violation); Engberg, 820 P.2d at 76 (no Brady violation where witness who could have been impeached ■with hypnosis evidence was only one of several eyewitness).

However, as to appellant’s other conviction, we conclude that evidence of the hypnosis of Ms. Easley’s was material under Bagley, supra, and, therefore, the Commonwealth’s failure to disclose that information mandates that we grant appellant a new trial on the charge of first degree murder of Darnel Gebhard. The record clearly reveals that Ms. Easley was the only witness to state that she saw appellant possess and shoot a gun. She also was oMy one of two witnesses to testify that she heard appellant admit to shooting Mr. Gebhard. Ms. Easley was clearly the Commonwealth’s key witness in the death of Mr. Gebhard. Thus, it was crucial to appellant’s defense to impeach the reliability of her recollection of the mght in question, especially in light of the fact that the trial took place over seven years after the shootings.

We are convinced that there is a reasonable probability that had evidence of Ms. Easley’s hypnosis along with testimony concermng the questionable nature of hypnotically-refreshed recollection been admitted, the result of appellant’s trial for the first degree murder of Daniel Gebhard would have been different. Bagley, supra. Presented with such information, the jury could have legitimately inferred that Ms. Easley’s recollection of the event was a product of the hypnosis and not what she truly saw, and, thus, there would have been no credible testimony that appellant shot Mr. Gebhard or even possessed a weapon. There is an eminently reasonable likelihood that the outcome of the trial would have been affected by a full assessment of Ms. Easley’s testimony, and our confidence in appellant’s conviction for the murder of Daniel Gebhard has been undermined by the Commonwealth’s failure to disclose the impeachment evidence. Compare, Giglio, supra (reversible error where prosecution failed to disclose evidence which could have been used to impeach sole government witness) and Wallace, supra (reversible Brady violation where prosecution failed to reveal evidence which could have been used to impeach the credibility of the Commonwealth’s “star” witness) with Engberg, supra (no Brady violation where witness who could have been impeached with hypnosis evidence was only one of several eyewitness).

PCRA order affirmed in part and reversed in part. Case remanded for further proceedings in accordance with this opinion. Jurisdiction relinquished.

WIEAND, J., files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting.

I concur in the majority’s decision to reverse the order of the P.C.R.A. court and grant appellant, Cornell Galloway, a new trial on the charge of first degree murder in connection with the killing of Daniel Gebhard. The Commonwealth’s failure to disclose the pre-trial hypnosis of Dorothy Easley, its key witness, was a violation of the prosecution’s obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to disclose evidence favorable to the defense. The fact that Dorothy Easley had been hypnotized prior to appellant’s trial was relevant and material evidence which, if it had been disclosed, may well have been utilized by the defense to attack the credibility and reliability of Easley’s testimony. Therefore, I agree with the majority that appellant must be afforded a new trial on the charge that he murdered Daniel Gebhard during the early morning hours of August 2, 1969. See: United States v. Miller, 411 F.2d 825 (2nd Cir.1969); Emmett v. Ricketts, 397 F.Supp. 1025 (N.D.Ga.1975); People v. Angelina 649 P.2d 341 (Colo.App. 1982).

Having reached this conclusion, however, I am unable to agree with the majority that a different result should be reached with respect to appellant’s conviction for the murder of Barry Kimmet. After a careful reading of the record of appellant’s trial, I am not persuaded that appellant’s role as an accomplice in this murder was established by overwhelming evidence apart from the testimony of Dorothy Easley. In my judgment, Easley’s testimony that she observed appellant in possession of and firing a weapon, as well as her testimony as to inculpatory statements made by appellant following the killings of Gebhard and Kimmet, was crucial to the Commonwealth’s ability to prove that appellant acted with a specific intent to kill. Without this evidence a jury might well have been unable to find appellant guilty of first degree murder as an accomplice in the killing of Barry Kimmet. Cf. Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994) (an accomplice must possess the specific intent to kill in order to be found guilty of first degree murder, as the guilt of an accomplice cannot be premised solely upon the mental state of the principal). I am constrained to conclude, therefore, that the Commonwealth’s failure to disclose the pre-trial hypnosis of Dorothy Easley was also material to the charge that appellant was an accomplice in the murder of Barry Kimmet. Accordingly, appellant should also be awarded a new trial on this charge.

      . The victims in this case were both white, and all defendants in the case were black.

        . The record does not reveal how or when appellant's trial counsel eventually learned that Ms. Easley was hypnotized. However, given the fact that the Commonwealth has not asserted waiver in the PCRA action, we assume it was proximate to the time when appellant filed this PCRA petition. We also note that the Commonwealth has not raised the issue of prejudicial delay pursuant to 42 Pa.C.S.A. § 9543(b).

      . It has been held that a witness may testify to events which he or she remembered without (i.e., prior to) the hypnosis. Commonwealth v. Romanelli, 336 Pa.Super. 261, 485 A.2d 795 (1984), affirmed., 522 Pa. 222, 560 A.2d 1384 (1989); Commonwealth v. Taylor, 294 Pa.Super. 171, 439 A.2d 805 (1982). The Commonwealth argues that Dorothy Easley remembered much of her testimony without hypnosis and, thus, her testimony was properly admitted. However, we find that argument must fail because the Commonwealth offered absolutely no evidence of record to show what amount of Ms. Easley’s testimony, if any, was remembered without the aid of hypnosis.

      . Even if we assume that appellant’s issue was not waived due to the fact that he was not informed of the hypnosis by the Commonwealth, we reach the same result. See, Gillespie (even though issue was nonwaivable, defendant not entitled to post-conviction relief where his conviction was final prior to the change in the law of which he wishes to take advantage).

      . We note the distinction between the ordinary "after-discovered evidence” case and the situation where the prosecutor in some way fails to disclose exculpatory evidence was ably set forth in United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342, 354 (1976), as follows:
      On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State's possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice. (Footnote omitted.)
      It is this less "severe burden”, discussed infra, that explains why appellant may prevails upon his Brady claim while his after-discovered evidence claim provides no relief.

      . Appellant is entitled to PCRA relief pursuant to 42 Pa.C.S.A. § 9543(a)(2)(i).

      . We acknowledge our earlier holding that Nazarovitch, supra, is inapplicable to the present case, and, at the time of appellant’s trial, our Supreme Court had not yet ruled that hypnotically-influenced testimony is inadmissible. Nevertheless, in eveiy jurisdiction which permitted the introduction of hypnotically-induced testimony, the trier of fact had the duty of weighing the reliability of the evidence in light of the hypnosis. See, Nazarovitch, 436 A.2d at 175 (citing cases). Thus, we are likewise convinced that the Commonwealth should have known that evidence of Ms. Easley’s hypnosis was crucial to both appellant’s ability to cross-examine her and the jury’s ability to weigh her testimony.

      . We note that prior to Bagley, supra, the definition of materiality differed depending upon whether the defendant "specifically requested” the exculpatory information, made a "general request” for exculpatory information or made "no request” for the information, but the evidence was such that the Commonwealth should have recognized its exculpatory nature. See, Bagley, 473 U.S. at 681, 105 S.Ct. at 3383; Agurs, supra. Herein, appellant did make a general request for information which would affect the credibility of witnesses and also a general request for exculpatory information, although he did not specifically ask if any witnesses had been hypnotized. Upon review of Brady, supra, and its progeny, we find that the standard of materiality set forth in Bagley, supra, is the same as that which would have been applicable under the tripartite materiality analysis set forth in Agurs, supra. See, LaFave and Israel, Criminal Procedure, 2d Ed., § 20.7 (1992). Moreover, the Court of Appeals has sub silentio applied the definition of materiality set forth in Bagley, supra, retroactively. Landano v. Rafferty, 856 F.2d 569 (3rd Cir.1988), cert. denied, 489 U.S. 1014, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989); Trujillo v. Sullivan, 815 F.2d 597 (10th Cir.1987), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987).

      . On cross-examination, Evans testified that he heard only one shot. N.T., p. 1098.

      . We note that in its opinion, the lower court quoted, as its statement of the facts, the recitation of the facts which it gave to the jury prior to their deliberations. See, Trial Court Opinion, pp. 9—11; N.T., pp. 1482-1487. However, the lower court made two glaring misstatements of the facts during his jury instruction which went uncontested by appellant’s trial counsel. First, the court stated that Robert Hobbs testified that he saw appellant in possession of a rifle on the night in question. N.T., p. 1485. Second, the court informed the jury that Barry Wright testified that appellant possessed a Winchester rifle. N.T., p. 1485. However, a review of both men’s trial testimony reveals that neither saw appellant with a gun and neither saw appellant discharge a gun. See, summaries of testimony, supra.

      . Barry Wright testified that shortly after a shot was fired, he heard appellant say, "I got him.” N.T., p. 1142. However, it is unclear whether Wright actually saw appellant make that statement, since Wright was lying on the floor of the car when the statement was made.

      . Barry Wright testified that he heard appellant say, "I got him.” However, the record also reveals that Wright received a very favorable plea agreement in exchange for his testimony. Further, it revealed that Wright never saw appellant with a weapon on the night in question, despite the fact that appellant was seated directly in front on Wright when appellant allegedly shot Mr. Gebhard and said "I got him."

      . We note that this is a hollow victory for appellant, regardless of whether the Commonwealth retries appellant for the murder of Daniel Gebhard. Although our decision herein necessarily vacates one of appellant’s consecutive life sentences, appellant nevertheless will spend the rest of his life in prison for his part in the death of Barry Kimmet. The fact that appellant’s life sentence for the murder of Daniel Gebhard is vacated in reality does not reduce appellant’s sentence. See, Commonwealth v. Szczesniewski, 404 Pa.Super. 617, 591 A.2d 1055, 1057 (1991), allocatur denied, 530 Pa. 654, 608 A.2d 29 (1992) (two consecutive life sentences are no longer than two concurrent life sentences since, in Pennsylvania, a life sentence is just as the name implies, imprisonment for life).


author: McEWEN, Judge.

text:
    640 A.2d 461
    Pasquale BIANCULLI and Christine Bianculli, H/W v. TURNER CONSTRUCTION COMPANY c/o CT Corporation Systems and Healy and Long Concrete Contractors, Inc. and Lehrer-McGovern of Pennsylvania, Inc. c/o CT Corporation Systems and Nine Penn Center Associates L.P. c/o Richard I. Rubin & Co. and Cornell Assoc., Ltd. v. BAYSHORE REBAR, INC. v. ISCO CONTRACTORS, INC. Appeal of TURNER CONSTRUCTION CO. and Nine Penn Center Associates, L.P. c/o Richard I. Rubin & Co., Inc.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1993.
    Filed April 15, 1994.

      David S. Wolf, Philadelphia, for appellants.
    George D. Sheehan, Jr., Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   McEWEN, Judge.

This appeal has been taken from an order which sustained preliminary objections filed by appellee Healy & Long Concrete Contractors, Inc. (hereinafter “Healy & Long”) to the new matter/crossclaim filed by appellants Turner Construction Company and Nine Penn Center Associates (hereinafter “Turner”) and thereby dismissed the crossclaim for indemnity which had been filed by appellants in this suit by an employee of appellee’s subcontractor who suffered injuries while engaged in the construction of the Mellon Bank Tower. Appellant Turner had contracted with appellee Healy & Long for the performance of the super-structure concrete work and Healy & Long had subcontracted a portion of its work to Bayshore Rebar, Inc. (hereinafter “Bayshore”), the employer of the plaintiff, Pasquale Bianculli.

Pasquale and Christine Bianculli commenced this action on August 28,1991, naming as defendants the general contractor, Turner, and numerous subcontractors, including Healy & Long. Healy & Long joined its subcontractor, Bayshore, which was the employer of the plaintiff. Appellant Turner, on October 16, 1991, filed an answer to the complaint which contained new matter in the nature of a crossclaim against its co-defendant Healy & Long. The pleading, however, was allegedly not served on Healy & Long, nor was it served upon counsel for Healy & Long since counsel did not enter his appearance for Healy & Long until shortly after the answer and crossclaim of Turner had been filed.

Bayshore, the subcontractor of Healy & Long and the employer of the plaintiff, filed a motion for summary judgment based upon its immunity from suit as the employer of the plaintiff. The trial court, on December 15, 1992, granted the motion for summary judgment in favor of Bayshore and against Healy & Long, finding that Bayshore was immune from suit pursuant to Section 481(b) of the Workmen’s Compensation Act, 77 P.S. § 481(b). Healy & Long did not undertake an appeal from the entry of summary judgment in favor of Bayshore.

Three months thereafter when appellant Turner, in reliance upon the indemnity provision of its contract with Healy & Long, sought to have Healy & Long assume the defense of Turner, Healy & Long notified Turner that it had never been served with the crossclaim filed by Turner. After Turner served Healy & Long the following day, Healy & Long responded with preliminary objections, asserting that it had been prejudiced by the 17-month delay in the service of the crossclaim upon it, specifically, that it had refrained from an appeal of the order granting summary judgment in favor of Bayshore since “it appeared that Healy & Long was not rightfully in the case and since they had nothing whatsoever to do with installation or maintenance of fire extinguishers”. Appellant Turner, in this appeal from the order dismissing its crossclaim, argues that the allegation of prejudice on the part of Healy & Long is pretextual since the indemnity provisions of the contract between Healy & Long and Bayshore are insufficient under Bester v. Essex Crane Rental Corp., 422 Pa.Super. 178, 619 A.2d 304 (1993), to overcome the absolute immunity afforded by the Workmen’s Compensation Act to Bayshore.

Appellant initially argues that the trial court committed reversible error in striking its crossclaim due solely to late service. We are constrained to agree.

Pursuant to Rules 2252(d) and 1026 of the Pennsylvania Rules of Civil Procedure, answers which assert new matters in the nature of a crossclaim must be filed within twenty days after service of the complaint. After this time period expires, if a party wishes to amend its answers in order to assert a crossclaim it must either obtain the consent of the adverse party or obtain leave of court. Pa.R.Civ.P. 1033. It is committed to the sound discretion of the trial court to decide whether to permit such an amendment. Schaffer v. Litton Systems, Inc., 372 Pa.Super. 123, 539 A.2d 360 (1988). However, leave to amend a pleading should be liberally granted absent prejudice to the adverse party. Winterhalter v. West Penn Power Company, 355 Pa.Super. 17, 512 A.2d 1187 (1986).
This court has defined prejudice as:
“something more than a detriment to the other party, ‘since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.’ ” [citation omitted].

Edmonds v. MBB, Inc., 384 Pa.Super. 584, 587-89, 559 A.2d 590, 592-593 (1989), allo. denied, 525 Pa. 618, 577 A.2d 890 (1990), quoting Winterhalter v. West Penn Power Company, supra at 22, 512 A.2d 1187 (footnotes omitted).

The trial court in the instant case granted the preliminary objections based upon late service as a result of its conclusion that appellee Healy & Long had been prejudiced by the delay since, solely as a result of that delay, Healy & Long had determined not to appeal the grant of summary judgment in favor of Bayshore. Appellant contends that since an appeal from the order granting summary judgment to Bayshore would have been frivolous, Healy & Long cannot establish any prejudice.

This Court, sitting en banc, in Bester v. Essex Crane Rental Corp., supra, held that an indemnity agreement was not enforceable against an employer of the plaintiff in an action by the plaintiff against a third party unless the agreement executed by the injured plaintiffs employer providing for indemnification of the third party specifically covered claims by employees:

[Contracting parties must specifically use language which demonstrates that a named employer agrees to indemnify a named third party from liability for acts of that third party’s own negligence which result in harm to the employees of the named employer. Absent this level of specificity in the language employed in the contract of indemnification, the Workmen’s Compensation Act precludes any liability on the part of the employer.

Bester v. Essex Crane Rental Corp., supra at 183-184, 619 A.2d at 308-309 (footnote omitted). Accord: Hackman v. Moyer Packing, 423 Pa.Super. 378, 381, 621 A.2d 166, 168 (1993). The agreement between Healy & Long and Bayshore provided, in relevant part:

The subcontractor [Bayshore] covenants to indemnify and save harmless and exonerate the contractor [Healy & Long] and the owner of and from all liability, claims and demands for bodily injury and property damage arising out of the work undertaken by the subcontractor, its employees, agents or its subcontractors and arising out of any other operation no matter by whom performed for and on behalf of the subcontractor, whether or not due in whole or in part to conditions, acts or omissions done or permitted by the contractor or owner.

This agreement does not, as a matter of law, permit indemnification of Healy & Long by Bayshore for injuries sustained by employees of Bayshore. See: Bester, supra; Hackman v. Moyer Packing, supra. Thus, because the sole basis for the claim of prejudice made by Healy & Long was meritless, the trial court erred in granting the preliminary objections on the basis of prejudice arising from the decision by Healy & Long not to appeal the entry of summary judgment in favor of Bayshore.

This Court in Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974), explained the evolution of joinder practice and the policies underlying Rule 2252(d):

The rule was amended ... in 1969 to provide a procedure for joining any party, plaintiff or defendant, who might be solely liable, liable over or jointly or severally liable with the joining party. The purpose of these amendments was to provide a short cut procedure for disposing of matters involving numerous parties with divergent interests, avoiding the cumbersome three step process of severance, joinder and consolidation formerly required if one wished to join a person already a party to the action.
In construing this rule ... a number of principles are to be kept in mind. Generally applicable to all the rules of civil procedure is Rule 126 which provides that “[t]he rules shall be liberally constructed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Such an approach is particularly pertinent where multiple parties are involved since in such cases the primary intent of the rules is to avoid multiplicity of suits by providing for the adjudication of all the rights and liabilities of those present and concerned in a single suit. This Court has favored the policy of broadly interpreting Rule 2252 “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before .proceeding against those from whom he seeks contribution.”

Ragan v. Steen, supra at 523-525, 331 A.2d at 729-730 (citations omitted) (emphasis supplied). Accord: Hileman v. Morelli, 413 Pa.Super. 316, 325, 605 A.2d 377, 382 (1992); Somers v. Gross, 393 Pa.Super. 509, 523-25, 574 A.2d 1056, 1058 (1990); National Liberty Life Insurance Co. v. The Kling Partnership, 350 Pa.Super. 524, 534, 504 A.2d 1273, 1279 (1986).

Appellee Healy & Long argued in thé trial court that dismissing the crossclaim would not result in a multiplicity of suits since an action for indemnity commenced by Turner against Healy & Long after the entry of judgment in this action would be barred since “it’s a matter of waiver and they have to bring it in a timely manner and I think if they came back four years from now and sued us for contribution ... we could still submit in that action they should have brought it in a timely manner, the Bianculli case, and you waived it____” This is a clear misstatement of the law of indemnity and contribution.

The right of contribution [and indemnity] may be asserted during the original proceeding as Automated has done in the present case, via joinder of the additional defendants, see Pa.R.C.P. 2252, or it may be pursued in a separate action by an original defendant who has previously been held liable to the original plaintiff. National Liberty Life Ins. Co. v. Kling Partnership, 350 Pa.Super. 524, 504 A.2d 1273 (1986).

Oviatt v. Automated Entrance System Company, Inc., 400 Pa.Super. 493, 498, 583 A.2d 1223, 1226 (1990). The statute of limitations on the claim for indemnity or contribution does not begin to run until the time judgment is entered in favor of the original plaintiff. Mattia v. Sears Roebuck and Co., 366 Pa.Super. 504, 506-08, 531 A.2d 789, 791-792 (1987), allo. denied, 519 Pa. 660, 546 A.2d 622 (1988). See also: Pennsylvania National Mutual Casualty Insurance Co. v. Nicholson Construction Co., 374 Pa.Super. 13, 16, 542 A.2d 123, 125 (1988), allo. denied, 521 Pa. 605, 555 A.2d 116 (1988). Dismissal of the indemnity claim of Turner in this action would not preclude a later suit by Turner against Healy & Long for indemnification pursuant to the contract between the parties and would, therefore, result in a multiplicity of suits.

Thus, in view of the lack of any prejudice to appellee Healy & Long, and the purposes sought to be realized by the rules pertaining to crossclaims, we believe it was an abuse of discretion to dismiss the crossclaim of Turner.

We, therefore, vacate the order of July 7, 1993, and remand for proceedings consistent with the foregoing.

Order vacated. Case remanded. Jurisdiction relinquished.

      . Appellant Nine Penn Center Associates is the owner of the building and Turner Construction Company was the general contractor for the erection of the building.

      . Section 481(b) of the Workmen's Compensation Act provides:
      In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.
      77 P.S. § 481(b).

      . The agreement between Turner and Healy & Long provides for indemnification as follows:
      Liability for Damage and Personal Injury
      Article XXIII. The Subcontractor hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of the Subcontractor or otherwise, and to all property caused by, resulting from, arising out of or occurring in connection with the execution of the Work. Except to the extent, if any, expressly prohibited by statute, should any claims for such damage or injury (including death resulting therefrom) be made or asserted, whether or not such claims are based upon Turner’s or the Owner’s alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of Turner or the Owner, the Subcontractor agrees to indemnify and save harmless Turner and the Owner, their officers, agents, servants and employees from and against any and all such claims and further from and against any and all loss, cost, expense, liability, damage or injury, including legal fees and disbursements, that Turner and The Owner, their officers, agents, servants or employees may directly or indirectly sustain, suffer or incur as a result thereof and the Subcontractor agrees to and does hereby assume, on behalf of Turner and the Owner, their officers, agents, servants and employees, the defense of any action at law or in equity which may be brought against Turner and/or the Owner, their officers, agents, servants or employees upon or by reason of such claims and to pay on behalf of Turner and the Owner, their officers, agents, servants and employees, upon demand, the amount of any judgment that may be entered against Turner and/or the Owner, their officers, agents, servants or employees in any such action. In the event that any such claims, loss, cost, expense, liability, damage or injury arise or are made, asserted or threatened against Turner and/or the Owner, their officers, agents, servants or employees, Turner shall have the right to withhold from any payments due or to become due to the Subcontractor an amount sufficient in its judgment to protect and indemnify Turner and the Owner, their officers, agents, servants and employees from and against any and all such claims, loss, cost, expense, liability, damage or injury, including legal fees and disbursements, or Turner, in its discretion may require the Subcontractor to furnish a surety bond satisfactory to Turner guaranteeing such protection, which bond shall be furnished by the Subcontractor within five (5) days after written demand has been made therefor, (emphasis supplied).

      . Healy & Long believed that it was not properly a defendant in the action since "Healy has nothing to do with fire extinguishers. On the job we weren’t responsible for maintenance or installation of fire extinguishers."

      . Rule 2252(d) provides:
      If the person sought to be joined is a party, the joining party shall, without moving for severance or the filing of a praecipe for a writ or a complaint, assert in his answer as new matter that such party is alone liable to the plaintiff or liable over to the joining party or jointly or severally liable to the plaintiff or liable to the joining party directly setting forth the ground therefor. The case shall proceed thereafter as if such party had been joined by a writ or a complaint.


author: POPOVICH, Judge.

text:
    640 A.2d 904
    COMMONWEALTH of Pennsylvania, Appellee, v. John Kenneth FRANK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1993.
    Filed March 18, 1994.
    Reargument Denied May 24, 1994.

      Todd J. O’Malley, Scranton, for appellant.
    John T. Robinson, Dist. Atty., Selinsgrove, for Commonwealth, appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Snyder County which denied appellant’s request for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. Appellant was convicted of rape and involuntary deviate sexual intercourse involving an eleven year old boy who was seeking counseling from appellant in 1982 and 1983. On direct appeal, his convictions were affirmed. Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990), allocatur denied, 526 Pa. 629, 584 A.2d 312 (1990). Upon review of the present PCRA appeal, we affirm.

Herein, appellant contends that trial counsel was ineffective for failing to raise the defense of statute of limitations where the Commonwealth did not plead or prove the tolling provisions. He also contends that counsel was ineffective for failing to review the files of Snyder County Children & Youth Services for information concerning a “unfounded” charge of sexual abuse made by the victim almost two years after appellant had ceased contact with him. Finally, appellant contends that no single sexual act should be permitted to support convictions for both rape and involuntary deviate sexual intercourse charges.

First, we will address appellant’s allegation that his trial counsel was ineffective for failing to raise the defense of the statute of limitation where the Commonwealth failed to provide notice of its intention to toll the statute of limitation and failed to prove facts sufficient to sustain the tolling. Pursuant to the statute of limitation, 42 Pa.C.S.A. § 5552(b), the Commonwealth’s prosecution of appellant on the charges of rape and involuntary deviate sexual intercourse had to occur within five years of the date the criminal acts were committed. However, pursuant to 42 Pa.C.S.A. § 5554(1), the period of limitation does not run during any time when “the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth”.

Unfortunately for appellant, he fails to present a cognizable PCRA claim. To be eligible for relief, appellant’s conviction must have resulted from ineffectiveness which so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have transpired. 42 Pa.C.S.A. § 9543. Appellant does not allege facts to show that the truth determining process was adversely affected by the Commonwealth’s alleged failure to provide notice and prove that the tolling statute was applicable. In other words, appellant has not specifically alleged that during the time period in question, he was a resident of Pennsylvania, and not one of Minnesota. Cf., Commonwealth v. Laskaris, 407 Pa.Super. 440, 444, 595 A.2d 1229, 1231 (1991) (appellant not eligible for PCRA relief where he alleges counsel was ineffective for failing to preserve issue that the Commonwealth did not notify him of its intent to toll the statute of limitation, but appellant failed to allege facts which demonstrate that the truth-determining process was compromised).

In his brief, appellant contends that there is no evidence of record to support Judge Bromfield’s statement that appellant was a resident of Minnesota. Appellant states that he “may have worked in Minnesota” but nothing supports the inference that his residence was any where but in Pennsylvania. Appellant’s Brief, p. 17. However, appellant’s allegation that the record does not establish that he was a resident of Minnesota is not tantamount to a declaration that he was a resident of Pennsylvania throughout the tolled period. We are mindful that appellant is before us on a petition for post-conviction collateral relief where he bears the burden of proving that the “truth-determining” process was undermined. Cf., Commonwealth v. Franklin, 306 Pa.Super. 382, 452 A.2d 777 (1982) (case decided under repealed Post Conviction Hearing Act).

Moreover, there is ample evidence that appellant was a resident of Minnesota during the period in question. The Criminal Complaint listed appellant’s address as Rt. 5, Box 3-E, Austin, Minnesota. The arraigning magistrate’s notes (for bail purposes) reveal that appellant was a resident of Minnesota for three years. Appellant admitted that he “went” to Austin, Minnesota to become the Executive Director of Girard Treatment Center, a residential, psychiatric treatment center. After leaving that position, he became a management consultant for an Iowa trucking company, and he obtained his Minnesota real estate license. See, N.T., May 24, 1989, pp. 93, 149-150. In addition, the pastor of appellant’s Minnesota church testified that appellant was well known in the Austin community from November of 1985 until May of 1988. N.T., 5/25/89, pp. 14-15.

Appellant has not established that he was a resident of Pennsylvania during the limitation period. Thus, he has not proven that the truth-determining process was undermined and he is not entitled to PCRA relief. Nevertheless, were we to review appellant’s claim, we would conclude it was meritless. The law of Pennsylvania requires the Commonwealth to inform the accused of its intention to demonstrate that the statute of limitation was tolled within a reasonable time prior to trial. Commonwealth v. Bethlehem, 391 Pa.Super. 162, 564, 570 A.2d 563, 565 (1989), allocatur denied, 525 Pa. 610, 577 A.2d 542 (1990); Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981); Laskaris, 595 A.2d at 1232. Herein, appellant was informed of the Commonwealth’s intent to apply the tolling provision of 42 Pa.C.S.A. § 5554(1), if appellant planned to pursue the defense of the statute of limitation. Although the notice was not in writing, the record nevertheless indicates that appellant received actual notice of the Commonwealth’s intentions prior to trial. The lower court specifically recalled a pre-trial discussion between the court, the prosecution and defense counsel concerning the issue. N.T., 2/19/93, p. 8. Appellant’s own testimony indicates his counsel considered the limitation defense to be meritless. N.T., 2/19/93, p. 16. Counsel cannot be held ineffective for failing to raise a meritless claim. Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992). Further, notice of the tolling provisions may be waived where there is no prejudice to the defendant. Laskaris, 595 A.2d at 1232, citing, Commonwealth v. Stockard, 489 Pa. 209, 217-218, 413 A.2d 1088, 1092 (1980). Since appellant has not established that he was a resident of Pennsylvania throughout the appropriate time frame, we could find no prejudice, even if the Commonwealth had never provided him with notice.

Next, appellant contends his trial counsel was ineffective for failing to review the tiles of Snyder County Children & Youth Services for information concerning an “unfounded” charge of sexual abuse made by the victim almost two years after appellant had ceased contact with him. Appellant herein contends that the letter could have been used by counsel to attack the credibility of the victim. However, we find that this issue has been waived.

“[W]here an issue is raised in a posi>conviction petition, but is not pursued at a hearing, it is deemed to be waived unless the failure to pursue the issue was not knowing and understanding.” Commonwealth v. Shaffer, 390 Pa.Super. 610, 615, 569 A.2d 360, 363 (1990), allocatur denied, 525 Pa. 617, 577 A.2d 889, (1990) citing, Commonwealth v. Payton, 440 Pa. 184, 269 A.2d 667 (1970). In his amended PCRA petition, he contends that counsel was ineffective for failing to challenge appellant’s “right to a prompt complaint.” At the PCRA hearing, appellant offered the letter in question into evidence and argued that counsel was ineffective for fading to request a jury charge concerning “prompt complaint”. N.T., 2/19/93, p. 31. Prior to this appeal, appellant has never alleged that counsel was ineffective for failing to attack the victim’s credibility with the letter. While the two issues are similar, they are not the same. Further, appellant failed to brief either the issue he now argues or the prompt complaint issue for the lower court, and the lower court has not been afforded an opportunity to address either issue. Thus, we find that appellant either has abandoned the issue by his failure to brief the issue for the court below (assuming arguendo that the issues are one and the same) or has waived the issue by is failure to raise the issue below.

Finally, appellant contends that no single sexual act should be permitted to sustain convictions for both rape and involuntary deviate sexual intercourse, i.e., merger is required. This argument fails for two reasons: First, the evidence revealed that appellant engaged in both oral and anal sexual intercourse with the victim. Thus, the two convictions rested upon two separate acts. Cf., Commonwealth v. Hitchcock, 523 Pa. 248, 565 A.2d 1159 (1989) (rape and involuntary deviate sexual intercourse do not merge where there are separate penetrations); Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820 (1990) (attempted rape did not merge with attempted involuntary deviate sexual intercourse where factual basis was different for crimes, despite both charges arising from a single sexual attack).

Second, except for lesser included offenses, the doctrine of merger based upon whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime has been abrogated and abolished. Commonwealth v. Williams, 521 Pa. 556, 563, 559 A.2d 25, 29 (1989). Herein, appellant was convicted of rape, defined as “sexual intercourse with another person not his spouse ... by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution”. 18 Pa.C.S.A. § 3121(2). In Hitchcock, 523 Pa. 250, 565 A.2d at 1160, our Supreme Court clearly stated that “anal penetration by a male of another person, not his spouse, is rape.” Appellant was also convicted of involuntary deviate sexual intercourse, defined as “deviate sexual intercourse with another person ... who is less than 16 years of age.” (Emphasis added.) Consequently, the two crimes are not lesser included offenses of one another, and merger is not appropriate (even if appellant had been convicted of only engaging in anal intercourse with the victim).

Appellant also states that prior counsel was ineffective for failing to argue that a male cannot “rape” another male, and, thus, his rape conviction should be vacated. Although traditionally rape has been considered a crime perpetrated by males against females, see Hitchcock, supra (Concurring and dissenting opinion by Nix, C.J.), the rape statute is gender neutral in regards to the victim of the sexual assault, and we see no reason why it should not also encompass sexual assaults committed by males against males. In fact, the majority in Hitchcock, supra, intimated just such a result, when it stated: “[A]nal penetration by a male of another person, not his spouse is rape”; and when it questioned: “Where the victim [of rape] is male____” Id., 565 A.2d at 1160, 1161. More direct, in his concurring and dissenting opinion in Hitchcock, supra, Justice Zappala specifically stated, “a male can rape another male____” Id., 565 A.2d at 1162; Cf., Commonwealth v. Fouse, 417 Pa.Super. 534, 612 A.2d 1067 (1992) (anal penetration by father upon son is sexual intercourse as defined in the Crimes Code). Since the issue underlying appellant’s assertion of error is meritless, counsel cannot be found ineffective. Commonwealth v. Fierst, 423 Pa.Super. 232, 620 A.2d 1196, 1200-1201 (1993).

PCRA order affirmed.

      . Bethlehem, 391 Pa.Super. 166, 570 A.2d at 565, indicates that the notice may be actual or constructive.

      . Were we to reach this issue, we would find that appellant is not entitled to PCRA relief since appellant has failed to establish that counsel’s ineffectiveness undermined the truth-determining process. 42 Pa.C.S.A. § 9543(a)(2)(h). Even if we assume arguendo that counsel was ineffective for failing to make use of the letter authored by Snyder County Children & Youth Services to attack the victim’s credibility, it is clear from a review of the record that counsel did question the victim’s credibility sufficiently to insure a reliable adjudication of guilt. Counsel specifically attacked the victim’s credibility by extensively cross-examining him about, inter alia, his delay in reporting of appellant’s sexual molestation and about the victim’s contemporaneous sexual relationship with his adoptive brother.
      More to the point, counsel was not ineffective for failing to use the document on cross-examination since appellant has presented no evidence that counsel ever knew about the document or could have discovered the same. Contrary to appellant’s representations, counsel performed exhaustive pre-trial discovery, including an attempt to subpoena the records of the Snyder County Children & Youth Services. An in camera review of the file was performed by the lower court in compliance with Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), after which various documents were released to counsel. It appears that the letter was not one of the documents released. However, it is clear that appellant himself possessed a copy of the letter in question, and, yet, he could not recall whether he provided counsel with a copy of the letter. N.T., 2/19/93, pp. 32-33.


author: DEL SOLE, Judge:

text:
    640 A.2d 908
    COMMONWEALTH of Pennsylvania v. John J. BUCKSHAW, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1994.
    Filed March 21, 1994.

      John J. Buckshaw, appellant, pro se.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

      Before McEWEN, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

These appeals come before the court following a convoluted procedural history evolving from the Appellant’s conviction in connection with two violations of the Pennsylvania Vehicle Code.

John J. Buckshaw appealed his summary conviction after a district justice found him guilty of driving while his license was under suspension, 75 Pa.Cons.Stat.Ann. § 1543(a), and operating a motor vehicle with an expired registration, 75 Pa.Cons.Stat.Ann. § 1301(a). The Court of Common Pleas of Allegheny County held a de novo bench trial on May 24, 1990, for which Appellant failed to appear. Consequently, Appellant was again found guilty and fined $295.00 plus costs. Appellant was sentenced in absentia that same day by an order of the Court of Common Pleas of Allegheny County. Notice of the conviction and sentence were sent to Appellant on May 25, 1990.

Following adverse adjudication and sentencing, Appellant filed post-verdict motions. Although Rule 1123 of the Pennsylvania Rules of Criminal Procedure, 42 Pa.Cons.Stat.Ann., required the consideration of post-verdict motions before imposing sentence, Appellant’s post-verdict motions were ultimately dismissed when he failed to appear at a hearing scheduled for a date subsequent to the date his sentence was imposed.

At the time of Appellant’s trial it was well established that general post-verdict rules were applicable to summary cases appealed de novo to a court of common pleas. Commonwealth v. Yetsick, 402 Pa.Super. 615, 620, 587 A.2d 788, 791 (1991); Commonwealth v. Adame, 363 Pa.Super 405, 408, 526 A.2d 408, 409-410 (1987). Accordingly, this court had determined that the Pennsylvania Rules of Criminal Procedure, specifically 42 Pa.Cons.Stat.Ann. Rule 1405, required the trial court to afford defendants an opportunity to file post-verdict motions prior to sentencing and, as such, made it improper to pronounce verdict and sentence simultaneously. Commonwealth v. Yetsick, 402 Pa.Super. at 622-623, 587 A.2d at 792.

In the instant case it is clear that the trial comb failed to conform to existing case law requiring a defendant be given the opportunity to file post-verdict motions. In such instances we would ordinarily vacate sentence and remand with directions that the trial court enter either a finding of guilty or not guilty, allowing Appellant to file post-verdict motions before sentencing if a guilty verdict was rendered. Commonwealth v. Yetsick, 402 Pa.Super. 615, 587 A.2d 788 (1991); Commonwealth v. Adame, 363 Pa.Super. 405, 526 A.2d 408 (1987); Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987).

However, since the time of Appellant’s trial, new Rule 1410 of the Pennsylvania Rules of Criminal Procedure has been enacted. Specifically, Rule 1410(D) provides:

“There shall be no post-sentence motion in summary case appeals following a trial de novo in the court of common pleas. The imposition of sentence immediately following a determination of guilt at the conclusion of the trial de novo shall constitute a final order for purposes of appeal.”

42 Pa.Cons.Stat.Ann. Rule 1410(D) (1994). Amended Rule 1410 is only effective in cases in where the determination of guilt occurred on or after January 1, 1994. The new rule eliminates prior procedural requirements concerning the filing of post-verdict motions in summary cases.

Although we recognize that Rule 1410 was not applicable at Appellant’s original trial and sentence, it would be fruitless to remand the case at this point for the trial court to proceed with the employment of the same procedure which it originally used. The procedure in effect prior to January 1, 1994, requiring the filing of post-verdict motions after the verdict was rendered but before the sentence was imposed, was both inefficient and burdensome for litigants and judges alike. Through the consolidation of all possible motions submitted for trial court review, the judicial system is relieved of conforming to excessive procedural burdens which significantly inhibit the trial court’s ability to promptly dispose of the numerous pressing issues emanating from already over-crowded dockets.

Because new Rule 1410(D) of the Pennsylvania Rules of Criminal Procedure, which directs that the imposition of verdict and sentence be conducted simultaneously at the conclusion of a trial de novo would be applicable on remand of this matter, we deem it best to ignore the procedural irregularity which occurred in this case. Thus, in the interest of judicial economy to now address the various contentions raised in Appellant’s pro se appeal.

Appellant contends that the trial court erred in denying his request for a continuance to file amended post-verdict motions and obtain legal representation. Appellant requested and was in fact granted several continuances as a result of his alleged difficulties in scheduling. The court ultimately denied Appellant’s request for a fourth continuance. However, rather than appear for the scheduled hearing, Appellant randomly filed an appeal from the court’s denial of his request for a continuance and did not attend the hearing. The denial of a fourth continuance by the court did not constitute an appeal-able order. Pugar v. Greco, 483 Pa, 68, 73-74, 394 A.2d 542, 545 (1978). The Court of Common Pleas’ denial of Appellant’s fourth continuance neither ended the litigation nor disposed of the case entirely. Therefore, the trial court had full authority to disregard Appellant’s filing of the notice of appeal from the interlocutory order denying the continuance. Commonwealth v. Williamson, 356 Pa.Super. 397, 399, 514 A.2d 917, 919 (1986).

Appellant further contends that the Court of Common Pleas acted erroneously by conducting the trial de novo in his absence. However, as set forth in Rule 1117(a) of the Pennsylvania Rules of Criminal Procedure, 42 Pa.Cons.Stat.Ann., Appellant’s absence without cause did not prevent the court from proceeding with the trial and rendering a verdict. Commonwealth v. Vianello, 337 Pa.Super. 148, 150, 486 A.2d 525, 526 (1984). Nonetheless, Appellant was not precluded from attempting to demonstrate post-verdict that his absence was based on good cause. Commonwealth v. Doleno, 406 Pa.Super. 286, 290, 594 A.2d 341, 343 (1991). Appellant requested and was granted three continuances for post-verdict hearings and then failed to appear at the final hearing after being denied a request for yet another continuance. Appellant failed to assert any valid reason in his pro se appeal to this court explaining his habitual absence from all formal court proceedings held to resolve the issues in controversy. Thus, Appellant failed to establish any error by the Court of Common Pleas of Allegheny County that would entitle him to relief.

Appellant alleges in his final contention that the claim against him should be discharged because under 42 Pa.Cons. Stat.Ann. § 5553(e), regarding judiciary and judicial procedure, the court failed to take proper action within two years after Appellant’s violation of the Pennsylvania Vehicles Code. However, 42 Pa.Cons.Stat.Ann. § 5553(e) is properly interpreted as requiring any summary proceedings initiated under the Pennsylvania Vehicle Code to be disposed at the trial level within two years or not at all. Appellant was cited on January 15, 1990 and the case was effectively resolved by the denial of post-verdict motions by the court on December 7, 1990. The proceedings were properly disposed of in approximately eleven months by the Court of Common Pleas of Allegheny County.

In conclusion, we find that the Court of Common Pleas of Allegheny County acted appropriately in dismissing Appellant’s post-verdict motions. Furthermore, we find no merit to the claims raised by the Appellant on appeal.

Affirmed.