author: MONTEMURO, Judge.

text:
    617 A.2d 1278
    COMMONWEALTH of Pennsylvania v. Timothy S. BERRENA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 4, 1992.
    Filed Nov. 16, 1992.

      Edward S. Blanarik, Jr., State College, for appellant.
    Mark S. Smith, Asst. Dist. Atty., Bellefonte, for Com., appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   MONTEMURO, Judge.

This is an appeal from judgments of sentence entered following appellant’s conviction on several counts of simple assault and recklessly endangering another person. On appeal, appellant, Timothy Berrena, raises the following nine issues for our review:

1. Should the criminal informations have been dismissed for failure to specify the dates and times of the alleged offenses?
2. Should the court have granted a change of venue or venire?
3. Did the court err by permitting Commonwealth witnesses to testify concerning statements allegedly made by appellant?
4. Did the court err by permitting the cumulative testimony of a Commonwealth witness?
5. Was the Commonwealth’s expert witness qualified to offer expert testimony and opinion relative to the causing of serious bodily injury by the ingestion of either vomit or urine?
6. Did the court err by denying appellant’s demurrers to the charges of recklessly endangering another person?
7. Were the verdicts contrary to the evidence and to the weight of the evidence?
8. Does the offense of simple assault merge with the offense of recklessly endangering another person for the purpose of sentencing?
9. Did imposition of the maximum sentence provided by law constitute an abuse of discretion?

After a thorough review of the record, we affirm in part and vacate in part the judgments of sentence.

The criminal charges filed against appellant arose out of his reprehensible treatment of various residents of the State College Manor Nursing Home (“Home”). According to testimony presented at trial, appellant was employed by the Home as a nurse’s aide. As one of his responsibilities, appellant assisted in the feeding of the Home’s debilitated residents. Unfortunately, appellant violated his position by abusing the individuals entrusted into his care.

At some point during an evening meal, one of residents became ill and vomited into a basin. Appellant removed a spoonful of vomit from the basin and fed it to a feeble elderly woman. During another meal, appellant offered a resident a cupful of her own infected urine. Only the intervention of another staff member prevented the women from drinking the urine.

On two separate occasions, appellant fed jalopena peppers to a resident afflicted with Alzheimer’s disease. On the second occasion, appellant used physical force to keep the resident from disgorging the peppers. In addition to these acts, appellant threatened a co-worker with a knife. Appellant was subsequently arrested and charged with numerous counts of aggravated assault, simple assault, recklessly endangering another person, and harassment.

After a jury trial, appellant was found guilty on four counts of simple assault and four counts of recklessly endangering another person. Motions for a new trial and in arrest of judgment were filed and denied by the trial court. Appellant was then sentenced to a minimum period of incarceration of four years and a maximum period of eight years. This appeal followed.

Upon review of the trial court’s opinion and order of August 14, 1990, we find that the trial court’s opinion adequately addresses the first four issues and the sixth and seventh issues raised by appellant. Therefore, these issues do not warrant review by this court and we affirm those issues on the basis of the trial court’s opinion.

The fifth issue raised by appellant challenges the trial court’s decision to allow a doctor, who is certified in the fields of psychiatry and neurology, to testify as an expert on the effects of ingesting vomit and urine. When we review such a challenge, we are bound by several well established principles.

“The determination of whether a person is qualified as an expert in this particular field is left to the discretion of the trial judge. Furthermore, that determination is based solely on whether their opinion will aid the trier of fact in finding the truth of the issues involved.” Commonwealth v. Young, 524 Pa. 373, 389, 572 A.2d 1217, 1225 (1990) (citations omitted). And, we will not reverse such a determination absent a clear abuse of discretion. Commonwealth v. Echevarria, 394 Pa.Super. 261, 266, 575 A.2d 620, 623 (1990).

Here, the trial court allowed a psychiatrist to give expert testimony as to the effects of ingesting vomit or urine. Although the expert was not certified in either internal medicine or gastroenterology, he did have an understanding of these areas, as would any other physician. Under Pennsylvania law, a physician is competent to testify as an expert in a field outside of his own specialty. Commonwealth v. Owens, 321 Pa.Super. 122, 127, 467 A.2d 1159, 1162 (1983). Thus, once the Commonwealth’s expert attested to his specialized knowledge, the trial court acted within its discretion when it found that the witness was qualified to testify. Accordingly, we affirm the trial court’s determination.

The eighth issue raised by appellant asserts that the offenses of recklessly endangering another person and simple assault merge for sentencing purposes. After a review of the relevant caselaw, we agree.

The doctrine of merger applies when one crime ‘necessarily involves’ another. Commonwealth ex. rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). It is also well settled that for one crime to necessarily involve another, the essential elements of one must be the essential elements of the other. Commonwealth v. Olsen, supra, Commonwealth v. Farmer, 244 Pa.Super. 334, 368 A.2d 748 (1976). That is, if no additional facts are needed to prove the additional offense, it merges into the primary offense for sentencing purposes. Only one sentence may thereafter be imposed. See Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973), Commonwealth v. Cox, 209 Pa.Super. 457, 228 A.2d 30 (1967), Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979).

Commonwealth v. Eberts, 282 Pa.Super. 354, 357-358, 422 A.2d 1154, 1155-56 (1980).

After applying the appropriate analysis, this court has found that the crimes reckless endangering another person and simple assault merge. Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 546, 420 A.2d 674, 676 (1980). See also Commonwealth v. Channell, 335 Pa.Super. 438, 445, 484 A.2d 783, 786 (1984). The Commonwealth does not attempt to distinguish Cavanaugh, supra, but rather requests that we simply ignore its holding. This panel does not have the power to ignore controlling authority.

Appellant claims that because the sentences merge, he is entitled to have the case remanded for resentencing. However, “[w]here a case requires a correction of sentence, this court has the option of either remanding for resentencing, or amending the sentence directly.” See Commonwealth v. Eberts, 282 Pa.Super. at 359, 422 A.2d at 1156. As appellant concedes, all of the sentences for reckless endangerment run concurrently with the sentences for simple assault. Thus, the aggregate sentence is not changed by merging the sentences. As such, a remand is not necessary. Instead we will vacated the concurrent sentences for reckless endangering another person.

Finally, appellant asserts that under the facts of this case, the sentencing court’s imposition of the maximum sentence provided by law constitutes an abuse of discretion. Appellant asserts that the sentencing court failed to consider all mitigating circumstances and did not provide on the record a sufficient reason to justify the sentence. This issue implicates the discretionary aspects of sentencing and we will only address the merits of this claim if a review of the record and the trial court’s opinion convinces this court that a substantia] question exists as to whether appellant’s sentence is inappropriate. Commonwealth v. Dotzman, 403 Pa.Super. 325, 588 A.2d 1312 (1991). The trial court had the benefit of a presentence report and did articulate reasons, on the record, explaining the sentence imposed. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (presumes trial court was aware of and considered contents of presentence report). Specifically, the trial court stated:

I’ve considered the presentence report and incorporate the same into the record as part of the reason for my sentence in your case. I considered materials submitted by your counsel, statements made by your counsel, the letters of reference submitted by your counsel, plus the additional two or three that I received ...
I’ve considered your education, character, background, your prior criminal record. Although it is minimal, it is for a simple assault charge. I’ve considered the circumstanced surrounding these offenses.
I’ve considered probation and rejected the same, because I believe that you either knew or you should have known that your actions would cause serious or could cause serious harm to the the victims, that there are no grounds tending to excuse or justify your conduct. The victims did nothing to induce or facilitate the commission of the crimes against them, that they were, in fact, helpless and it would be the same as though you had been abusing a child, that you violated any trust which these people put in you.
I’ve considered guilt without penalty and partial confinement and rejected both for the above-stated reasons. I’ve chosen total confinement as I believe that a lesser sentence would seriously depreciate the nature of the crimes against these elderly individuals.

(N.T. 9/4/90 at 14-15). As the foregoing illustrates, the trial court considered all relevant evidence and provided an individually tailored sentence for appellant. As such, we find that the trial court did not abuse its discretion.

Judgments of sentence affirmed in part, vacated in part.

      . 18 Pa.C.S.A. § 2701(a)(1) and (3).

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 2702(a)(1).

      . 18 Pa.C.S.A. § 2709.

      . Although appellant's conduct is covered by our criminal code, we encourage our Legislature to pass legislation that provides specific criminal penalties for abuse of the elderly. We do note that House Bill No. 1145, now pending before the Committee on Aging and Youth, does provide criminal penalties for abuse or neglect of residents of long term care facilities.

      . With regard to the seventh issue, the trial court’s opinion adequately addresses all of the various claims raised by appellant except for his assertion that his four simple assault convictions are against the weight of the evidence. Whether appellant is entitled to a new trial on the basis that the verdict is against the weight of the evidence is left to the sound discretion of the trial court. Commonwealth v. Murray, 408 Pa.Super. 435, 439, 597 A.2d 111, 113 (1991), alloc. denied, 529 Pa. 668, 605 A.2d 333 (1992). On appeal, this court’s duty is to determine whether the trial court has abused its discretion, not to substitute our judgment for that of the trial court.
      Appellant is entitled to a new trial if the verdict is so contrary to the evidence as to shock one's sense of justice, and the award of a new trial is imperative that right may be given another opportunity to prevail. Id., at 439, 597 A.2d at 113. After thorough review of the record, we find that the jury’s verdict does not shock our sense of justice. Accordingly, the trial court’s denial of appellant’s motion was not an abuse of discretion.

      . We recognize that we are vacating the sentence for the greater offense of reckless endangering another person while allowing the sentence to stand for the lesser included offense of simple assault. However, our decision as to which sentence to be vacated is not guided by which sentence is for the lesser or greater offense. Rather our decision is guided by which crime has the greatest possible sentence. Commonwealth v. Nelson, supra; Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). In the present case, both simple assault and reckless endangering another person carry equivalent maximum penalties. As such, this court has the authority to vacate either of the sentences. Since the trial court ran the sentences for reckless endangering another person concurrently with the consecutive sentences for simple assault, vacating the sentences for reckless endangerment does not upset the trial court’s considered sentencing scheme.

      . We note that when taking into consideration appellant’s prior record score of zero, the Sentencing Guidelines, 204 Pa.Code § 303.1 et seq., reprinted in, 42 Pa.C.S.A. § 9721, recommend a minimum period of confinement of zero to twelve months in the standard range and the statutory limit in the aggravated range. Appellant’s consecutive 12 month minimum sentences fell within the standard range of the guidelines. The statutory maximum for either simple assault or reckless endangerment is 24 months. Therefore, appellant's standard range 12 month sentence was also the maximum sentence permitted by law. See 42 Pa.C.S.A. § 9756(b) (a prison sentence must include a minimum term which cannot exceed one half the maximum).


source: Caselaw Access Project

author: FORD ELLIOTT, Judge.

license: Public Domain

text:
    617 A.2d 1281
    COMMONWEALTH of Pennsylvania, Appellant, v. John Raymond NECKERAUER, Jr.
    Superior Court of Pennsylvania.
    Argued June 1, 1992.
    Filed Dec. 10, 1992.

      John A. Kopas, III, 1st Asst. Dist. Atty., Fairchance, for Com.
    Irving L. Bloom, Greensburg, for appellee.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge.

The Commonwealth appeals from the October 19, 1990 Order granting John R.' Neckerauer, Jr.’s Omnibus Pretrial Motion to Quash Information/Petition For Writ of Habeas Corpus and dismissing the charges. Mr. Neckerauer, appellee, had been charged with obstructing administration of law or other governmental function (18 Pa.C.S.A. § 5101), tampering with or fabricating physical evidence (18 Pa.C.S.A. § 4910), hindering apprehension or prosecution (18 Pa.C.S.A. § 5105(a)(3, 5)), and' two counts' of criminal conspiracy (18 Pa.C.S.A. ■§ 903).

This case resulted from a Pennsylvania State Police investigation of the disappearance of Ada J. Groomes from Scottdale, Pennsylvania, in October 1988. According to the preliminary hearing testimony of Trooper Hill, the State Police contacted many people and conducted interviews. Donald and Ada Groomes owned a 1976 Dodge motor home which Mr. Groomes reported missing on October 26, 1988. Mrs. Groomes was believed to be missing on October 7, 1988, and the motor home was believed to be missing about one day prior to her disappearance. It was very important to locate the motor home because it might'provide evidence as a crime scene or provide information as to the whereabouts of Mrs. Groomes. The police used several methods to locate the missing motor home including the dissemination of fliers with a photo of Mrs. Groomes and of the motor home, and the news media was also contacted.

Police initially talked to appellee by telephone regarding the motor home and Mrs. Groomes’ disappearance in early November of 1988. Trooper Hill inquired about a garage rental in Uniontown, and they discussed the two one-hundred dollar bills with the name Bud written on them found in Mr. Groomes’ truck; appellee’s nickname is Bud. Trooper Hill spoke with appellee again in May 1989 at his residence and in the presence of his girlfriend, Linda Gettemy, regarding Mrs. Groomes and the motor home. Both denied having any knowledge of the location of the woman or the motor home. Appellee told Trooper Hill that he was familiar with the motor home since Mr. Groomes parked it in his driveway and lived in it on one occasion when Mr. Groomes left his wife. Based upon information from Mr. Groomes, appellee and his girlfriend told the trooper they believed that Mrs. Groomes was driving the motor home out in Arizona because she had joined some kind of a cult.

At the preliminary hearing, Trooper Taylor testified that, in October 1989, a Mr. Lofstead, from Tampa, Florida, indicated that he was in possession of the motor home involved in the Groomes case. Mr. Lofstead informed the trooper that appellee had driven the motor home to his property and told him that the motor home was being stored there for a friend entangled in a divorce dispute and that the friend did not want his wife to have access to the motor home. After Trooper Taylor obtained information that the motor home on Lofstead’s property was in fact the Groomes’ motor home, he immediately received a call from appellee explaining that he had been in possession of the motor home and had been given the motor home by Mr. Groomes to use two days prior to the disappearance of Mrs. Groomes. Appellee also stated that he was aware of the location of the motor home since that time. Appellee told Trooper Taylor that prior to bringing the motor home to Florida, he had taken the motor home to Virginia where he was working on a construction site. Trooper Taylor asked appellee why he had not apprised Trooper Hill of the location of the motor home when Hill interviewed him earlier, and appellee responded that Hill had never specifically asked him about the motor home, only about Mrs. Groomes’ disappearance.

Trooper Craig also testified at the preliminary hearing that he continued the investigation to Williamsburg, Virginia, where he talked to several people. During an interview, Mr. Shaulis, told the trooper that he worked as a mechanic at the job site where appellee was working. Mr. Shaulis became acquainted with appellee in May of 1988 and he saw appellee with the motor home in October of 1988. Appellee’s girlfriend, Ms. Gettemy, was also present on two occasions with the motor home. The trooper proceeded to Fair Oaks Campgrounds in Williamsburg where he spoke with a Ms. Rigleman who informed him that, based on her documents, appellee stored a twenty-six foot Diplomat motor home at the campground from November 19, 1988, until March 23, 1989. Upon contacting Mr. Lofstead in Florida by telephone, Trooper Craig was told that appellee transported the' motor home to Lofstead’s residence on March 27,1989. None of the Pennsylvania troopers who testified at the preliminary hearing went to look at the motor home after it was found, and, when the motor home was processed by the Hillsborough Sheriffs Department in Florida, they found no evidence of a crime. Mrs. Groomes has not been located.

The magistrate determined that the Commonwealth had presented sufficient evidence to show that appellee and Linda Gettemy willfully concealed evidence knowing that it was the focal point in a police investigation, and that a prima facie case had been established on the charges filed against the defendants. Appellee then filed the omnibus pretrial motion to quash information/Ziabeas corpus petition which was granted by the trial court based on the identical reasoning applied in Commonwealth v. Gettemy, No. 1139 1/5—4/5, Franks, J. (Fayette Co. 1989), and the Commonwealth appealed the dismissal of the charges. On appeal, the Commonwealth argues that there was sufficient evidence presented to establish a prima facie case with respect to all of the charges against appellee. We affirm in part and reverse in part.

Initially, the Commonwealth submits that providing false answers in response to questions by law enforcement officials is conduct constituting the crime of hindering apprehension or prosecution in violation of 18 Pa.C.S.A. § 5105(a)(5), which states:

(a) Offense defined.—A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
(5) volunteers false information to a law enforcement officer.

The Commonwealth argues that since false information regarding the location of the motor home was provided by appellee in response to Trooper Hill’s questions, that a crime has been made out under the statute.

The Commonwealth disagrees with this court’s recent opinion in Commonwealth v. Gettemy, supra, wherein we affirmed the trial court’s dismissal of the charges against appellee’s girlfriend, Linda Gettemy. In that case, we were presented with an issue of first impression and the Commonwealth raises the very same legal question today, urging us to overrule Gettemy. Ms. Gettemy argued that section 5105(a)(5) did not apply in her case because she did not volunteer the false information to the police as prohibited by the statute. We agreed with this contention and found it necessary to consider the legislative intent to ascertain exactly what conduct was contemplated and proscribed by section 5105(a)(5). Our analysis began with the definition of the term “to volunteer” and we stated, “[T]o offer (oneself or one’s services) for some undertaking or purpose; ... to give, bestow, or perform without being asked ...; to say, tell, or communicate voluntarily. ... The Random House Dictionary of the English Language, copyright 1981; emphasis supplied.” Gettemy, 404 Pa.Super. at 509, 591 A.2d at 323. We further noted that

[T]he courts of New Jersey were faced with this exact issue in State v. D'Addario, 196 N.J.Super. 392, 482 A.2d 961 (1984). The New Jersey Superior Court stated that this definition, particularly the emphasized language, supports the conclusion that the meaning of ‘volunteer’ as used in N.J.S.A. 2C:29-3a(7), is that the accused must take the initiative in giving false information. We point out that the wording of the New Jersey statute is identical to that of the Pennsylvania statute, as both statutes are derived from the Model Penal Code. The court in D’Addario, stated that the statute applied only to those persons who take the initiative in supplying false information to law enforcement officials.
Recognizing that we are not bound by the decisions of a sister state, we, nevertheless find the reasoning of the New Jersey Court to be persuasive. The facts of the instant case make it clear that Appellee did not take the initiative in supplying false information to the law enforcement officers. Her answers, misleading as they were, were given in response to the officers questions. Additionally, the Official Comment to 18 Pa.C.S. § 5105 states that this section is derived from Section 242.3 of the Model Penal Code. The comment to this section provides:
Paragraph (5) prohibits volunteering false information to the law enforcement authorities. Mere failure to report a crime is not proscribed by this section. Neither is giving misleading or even false answers to inquiries initiated by the police____ This provision is intended to reach those who take the initiative in throwing the police off track.

Gettemy, at 509, 591 A.2d, at 323. We concluded that providing fallacious statements in response to questions initiated by law enforcement officers does not constitute the type of conduct defined as hindering apprehension or prosecution under 5105.

Appellee also cites the New Jersey supreme court case State v. Valentin, 105 N.J. 14, 519 A.2d 322 (1987), which upheld the rationale promulgated in D’Addario, as the leading case on providing false answers in response to police questions. The Commonwealth argues that appellee’s reliance on these cases is misplaced. The Commonwealth believes that a grave injustice would be done to police investigations if this court continues to follow these cases, and that law enforcement would be without any means to pursue persons who deliberately provide police with false statements. The Commonwealth further contends that Gettemy, supra, should be reversed as it does not carry out the public policy of this state to deter individuals from hindering apprehension or prosecution, and the Gettemy interpretation permits persons who hinder apprehension to avoid being prosecuted due to a technicality. We do not agree.

We are aware that words of a statute must be construed according to their plain meaning. Commonwealth v. Reeb, 406 Pa.Super. 28, 593 A.2d 853 (1991). However, the word volunteer is ambiguous and capable of more than one meaning. Penal statutes must be strictly construed in favor of the accused. Commonwealth v. Cunningham, 248 Pa.Super. 219, 375 A.2d 66 (1977). “When interpreting a provision of the Crimes Code that contains language susceptible to differing constructions, it is proper to consider the purpose of the particular provision involved.” Commonwealth v. Williams, 525 Pa. 216, 579 A.2d 869 (1990).

The Commentary to section 242.3 of the Model Penal Code, expounding upon its reasoning as to why giving false answers to police initiated inquiries did not constitute hindering prosecution or apprehension, stated:

This solution represents a delicate policy judgment, premised in part on the fear that a wider reach for this subsection would invite abusive charges by police against persons interviewed in the course of investigating crime. It should be borne in mind that the law provides a means of compelling testimony under oath and that a penal policy with respect to unsworn false statements to the police has been carefully developed in Section 241.3 (unsworn falsification to authorities) and Section 241.5 (false reports to law enforcement authorities) of the Model Code. Paragraph (5) of this offense proscribes only the borderline case of volunteered misinformation to the police, which is not covered elsewhere.

Section 5105(a)(5) was enacted to preclude a very specific type of conduct that was not covered by other statutes. We will not enlarge the scope of this statute to reach conduct that our legislators did not intend to prohibit in enacting this particular statute. Despite the very narrow interpretation of the hindering apprehension or prosecution statute by the Commentators to the Model Penal Code, Pennsylvania adopted the Model Penal Code’s version of this statute almost verbatim and duly noted in the Official Comment to section 5105 that it is derived from section 242.3 of the Model Penal Code. This would indicate that our decision in Gettemy should be sustained and shall not be reversed with respect to this issue.

We are also asked to determine whether a prima facie case was presented against appellee relative to the crimes of tampering with or fabricating physical evidence, obstructing administration of law or other governmental function and criminal conspiracy. At the preliminary hearing stage, the Commonwealth has the burden of establishing at least prima facie that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983). The Commonwealth is not required to prove guilt beyond a reasonable doubt at the preliminary hearing. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1991). However, to meet the burden of establishing a prima facie case, the Commonwealth must present evidence with respect to each of the material elements of the crime charged and to establish sufficient probable cause to warrant the belief that the accused committed the crime. Id.

The statute defining tampering with or fabricating physical evidence states in pertinent part as follows:

A person commits a misdemeanor of the second degree if, believing that an official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding or investigation; ...

18 Pa.C.S.A. § 4910(1).

The Official Comment to this statute indicates that it is derived from section 241.7 of the Model Penal Code which refers to this crime as a form of obstruction of justice. The commentary to the Model Penal Code emphasizes that the prosecution must demonstrate that the actor believed that an official proceeding or investigation was pending or about to be instituted. See also Official Comment 18 Pa.C.S.A. § 4910. Elaborating further, the comment states:

Paragraph (1) punishes one who ‘alters, destroys, conceals or removes.’.... The range of items protected against tampering includes ‘any record, document or thing.’.... The limiting factor in Paragraph (a) is the requirement of specific intent. The statute punishes any kind of tampering ■with any document or thing, but only if the defendant acts ‘with purpose to impair its verity or availability’ in an official proceeding or investigation.

Model Penal Code § 241.7.

The Commonwealth asserts that the record in the case contains a number of indications that appellee knew where the motor home was located, and that he was aware of the pending investigation based upon the contact he had with the police. Trooper Hill testified at the preliminary hearing that he initially spoke with appellee on November 2, 1988, by telephone. The trooper informed appellee that he was trying to locate or obtain information concerning Mrs. Groomes and the motor home. During the conversation, Trooper Hill also talked to appellee about a garage rental in Uniontown and the one-hundred dollar bills found in Mr. Groomes’ truck with the name “Bud” written on them. Appellee had not provided Trooper Hill with any information regarding Mrs. Groomes or the motor home during this particular conversation even though he was in possession of the motor home or knew where it was located. Trooper Craig testified at the preliminary hearing, and his investigation revealed, that appellee proceeded to Fair Oaks Campground in Williamsburg, Virginia, where he signed documents on November 19, 1988, to store a Diplomat motor home there which was picked up on March 23, 1989.

Contrary to the trial court’s findings, the evidence presented was sufficient to establish a prima facie case that appellee tampered with physical evidence in violation of 18 Pa.C.S.A. § 4910. Based upon the testimony at the preliminary hearing, it is apparent, or it 'can at least be inferred, that when the police initially questioned him by-phone that appellee knew a police investigation was pending or about to be instituted. Appellee shortly thereafter removed the motor home from Pennsylvania and had it stored in Virginia and then in Florida, knowing that it was the focus of a police investigation. These facts are sufficient to infer that appellee possessed the requisite specific intent to conceal the motor home and impair its availability in a police investigation.

Appellee was also accused of obstructing administration of law or other governmental function set forth at 18 Pa.C.S.A. § 5101 which provides:

A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

This section was also substantially based upon the Model Penal Code section 242.1. As stated in the comment to this section, the Commonwealth must present evidence that

... the defendant purposely obstruct, impair, or pervert a governmental function by one of the specified means. Thus, the provision requires that the actor have a conscious objective to engage in the conduct proscribed by the offense. Section 242.1 further requires that the obstruction actually take place. Preparatory, incomplete, and equivocal conduct is excluded from the offense.... The generality of the crime has been confined by limiting its application to (i) violent or physical interference, (ii) breach of official duty, and (iii) any other act that is unlawful independently of a purpose to obstruct the government.

Model Penal Code § 242.1.

The Commonwealth argues that appellee’s conduct is clearly prohibited by the obstruction statute. As previously stated, appellee, after being informed on November 2, 1988, that the police were investigating the disappearance of Mrs. Groomes and the motor home, appellee promptly removed the motor home and took it to Virginia on November 19, 1988, for storage. Appellee’s behavior demonstrates his conscious purpose to obstruct the police investigation. From November 1988 until October 1989, appellee engaged in a course of concealing physical evidence sought in an official investigation thereby obstructing justice. Although appellee did not use force or violence to accomplish this deed, sufficient prima facie evidence was presented at the preliminary hearing to show that appellee unlawfully tampered with physical evidence. Such activity would come within the reach of the obstruction statute which only requires that a person “intentionally obstructs, impairs or perverts the administration of law or other governmental function by force ... or any other unlawful act____” 18 Pa.C.S.A. § 5101 (emphasis added). Based on this evidence, a prima facie case had been established and appellee was properly bound over for trial.

Finally, appellee had been charged with engaging in a conspiracy with Ms. Gettemy and with Mr. Groomes. Criminal Conspiracy' is defined, pursuant to 18 Pa.C.S.A. § 903(a) as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

An individual is guilty of conspiracy if, with the intent to promote or facilitate a crime, he or she agreed to aid another person in the attempt, solicitation, planning, or commission of the crime. Commonwealth v. Stein, 401 Pa.Super. 518, 585 A.2d 1048 (1991). Because direct evidence of intent and agreement is often unattainable, conspiracy may be proven entirely from overt acts, relationship, conduct or circumstances of the parties. Commonwealth v. Davis, 312 Pa.Super. 85, 458 A.2d 248 (1983). The Commonwealth bases the conspiracy between appellee and Ms. Gettemy on the fact that both were present and told Trooper Hill that Mr. Groomes had told them that his wife had taken the motor home to Arizona. The Commonwealth also relies upon the testimony of Trooper Craig that a woman stated that she saw appellee and Ms. Gettemy on the motor home in October 1988. The Commonwealth believes that this evidence shows a clear understanding between appellee and his girlfriend to violate the aforementioned criminal statutes. The Commonwealth further contends that appellee “had a focalization of effort in embarking upon the project of concealing the whereabouts of the motor home.” Appellant’s brief at 15.

This record is devoid of any evidence that appellee agreed with Ms. Gettemy to tamper with physical evidence or to obstruct the administration of law or other governmental function. The testimony that Ms. Gettemy was seen in the motor home or in the presence of the motor home with appellee does not establish the requisite elements of a conspiracy nor can a conspiracy be inferred based on this fact. Likewise, having determined that there was no unlawful act committed by Ms. Gettemy and appellee in giving false answers to police questioning in May 1989, there can be no actionable conspiracy based on this conduct. Without evidence of an agreement between appellee and Ms. Gettemy at the time that the vehicle was removed from Pennsylvania and concealed in Virginia and Florida, we cannot conclude that a prima facie case of conspiracy between appellee and Ms. Gettemy had been established by the Commonwealth.

Order affirmed in part and reversed in part. Case remanded to the trial court for proceedings consistent with this Opinion. Jurisdiction relinquished.

ROWLEY, P.J., and WIEAND, J., concur in the result.

This case was decided prior to MONTEMURO, J., leaving the bench.

      . Linda Gettemy, appellee’s girlfriend, was also charged with obstructing administration of law, tampering with or fabricating physical evidence, hindering apprehension or prosecution and conspiracy. Ms. Gettemy's omnibus pre-trial motion to quash/habeas corpus petition was granted and the charges were dismissed. The Commonwealth appealed this order to the Superior Court and we affirmed. Commonwealth v. Gettemy, 404 Pa.Super. 504, 591 A.2d 320 (1991), alloc. denied 529 Pa. 645, 602 A.2d 856 (1992).

      . Before the charges against appellee were dismissed, he was charged with sections (a)(3) and (5) of 18 Pa.C.S.A. § 5105, however, the Commonwealth only raises an issue with respect to subsection (a)(5).

      . On the facts as presented, appellee's case is distinguishable from the case involving Ms. Gettemy. In Gettemy, supra, we concluded that the Commonwealth failed to establish the elements of 18 Pa.C.S.A. § 4910 because the record, based on the investigating officer’s testimony, only showed that Linda Gettemy was present in Virginia and Florida when the motor home was seen in those states, but nothing in the record revealed that Ms. Gettemy removed the motor home with intent to impair its availability. On November 2, 1988, Trooper Hill did not discuss the disappearance of Mrs. Groomes or the whereabouts of the motor home with Ms. Gettemy. The testimony reveals that Trooper Hill only talked to appellee over the telephone at which time he did not inform the police that he possessed the motor home and he then proceeded to remove the vehicle from the jurisdiction of Pennsylvania. In addition, it was appellee, not Ms. Gettemy, who contacted Trooper Taylor and informed him that Mr. Groomes had given the motor home to him two days before Mrs. Groomes was reported missing.

      . According to the comment to section 242.1 of the Model Code, the culpability requirements demand that the defendant’s action be directed at interference with the official function. The offense encompasses violent and disorderly conduct that is intended to and in fact does obstruct the functioning of courts and other tribunals. The statute covers any affirmative act of physical interference, not specifically excepted, whether or not violence is involved. The commentators provide an example to illustrate that this crime reaches tampering with the vehicle of a law enforcement official to prevent his attendance at a proceeding or some other execution of duty.

      . We note that in Gettemy, supra, we determined that 18 Pa.C.S.A. § 5101 did not apply because Ms. Gettemy's responses to the police officer did not constitute hindering apprehension or prosecution or tampering with physical evidence. Since her conduct did not fall under the "any other unlawful act” provision of the obstruction statute, all charges were properly dismissed.

      . The Commonwealth merely asserts that appellee and Mr. Groomes conspired but no argument has been set forth to support the statement. We assume that the Commonwealth has knowingly chosen to forego this argument and we shall not address it. See Commonwealth v. Smith, 389 Pa.Super. 606, 567 A.2d 1070 (1989) (failure to present an argument in the body of the brief to support a claim will result in waiver of the issue on appeal).

      . We note that while the conduct alleged is not culpable under § 5105(a)(5), this conduct might well fall within the purview of § 5105(a)(3) which reads as follows: "(a) Offense defined.—A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he: (3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence.” However, although both appellee and Ms. Gettemy were charged under this section originally, the Commonwealth has not pursued its applicability on appeal.


author: OLSZEWSKI, Judge:

text:
    617 A.2d 1289
    COMMONWEALTH of Pennsylvania, Appellant, v. John RIGHTLEY.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed Dec. 15, 1992.

      Vram Nedurian, Jr., Asst. Dist. Atty., Newton Square, for Com., appellant.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order arresting judgment against defendant, John Rightley [hereinafter “Rightley”]. After the third trial on the matter, a jury convicted Rightley of two counts each of simple assault and aggravated assault. Rightly asserted in post-trial motions that the third trial violated his double jeopardy rights, and that the evidence at trial was insufficient to sustain a conviction for aggravated assault. The trial court arrested judgment on the aggravated assault charges, agreeing that the evidence was insufficient. The Commonwealth appeals that determination. We find that the evidence was sufficient to sustain the jury’s verdict. We therefore reverse and remand for sentencing.

In 1987, Rightley allegedly struck a man with a baseball bat during a fight. Rightley was arrested and charged with simple and aggravated assault. His first trial resulted in a hung jury. At the second trial, a jury found Rightley guilty, but the trial judge granted his motion for a new trial based on several incidents of prosecutorial misconduct. A panel of this Court affirmed the trial court’s grant of a new trial. Before his third trial on these charges, Rightley moved to dismiss the action, claiming that his double jeopardy rights were violated. This motion was denied and the case proceeded to trial. The jury found Rightley guilty of aggravated assault. Rightley filed post-trial motions, rearguing his double jeopardy claim and claiming that the evidence at trial was insufficient to sustain the verdict. Rightley’s double jeopardy claim was denied. The trial court agreed with the insufficiency claim, however, and arrested judgment. The Commonwealth appeals the sufficiency finding.

Before we reach the merits of the Commonwealth’s appeal, we are compelled to examine Rightley’s contention that his double jeopardy rights were violated. Since Rightley was never sentenced, he did not appeal the issue. The matter is before us, however, as the result of a motion to remand which Rightley filed after we heard oral argument on the Commonwealth’s appeal. Rightley’s motion to remand asked us to remand the case to the trial court in light of the recent Pennsylvania Supreme Court case of Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992). We agree with Rightley’s assertion that the double jeopardy issue deserves expedient consideration. Since his claim only requires an interpretation of Smith, however, we will discuss the issue here.

Normally, a criminal defendant may take a direct appeal on an issue only after sentencing. Commonwealth v. Schauffler, 397 Pa.Super. 310, 580 A.2d 314 (1990), alloc. denied, 525 Pa. 663, 583 A.2d 793. An appeal before judgment of sentence, however, may be considered in exceptional circumstances, such as where an appeal is necessary to prevent great injustice to a defendant, where an issue of basic human rights is involved, or where an issue of great importance is involved. Commonwealth v. Reagan, 330 Pa.Super. 417, 479 A.2d 621 (1984). Our Courts have recognized that since colorable double jeopardy claims involve an irreparable loss of liberty, immediate access to the appellate courts is “imperative.” Commonwealth v. Gains, 383 Pa.Super. 208, 556 A.2d 870, 875 (1989). “Otherwise, the risk is simply too great that the defendant will be deprived of his right to be free from an unnecessary retrial and its accompanying ‘expense, trauma, and rigors incident to a prosecution for a second time.’ ” Id. It is for this reason that Pennsylvania appellate courts permit interlocutory appeals of colorable pre-trial double jeopardy claims. See, Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

Furthermore, since Smith was decided before the final resolution of Rightley’s case on direct appeal, we must apply the new law retroactively. This rule has its roots in the notion that if

subsequent to the judgment and before the decision of the appellate court a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.... In such a case- the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.

Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992) (citing United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801)).

The appellate court’s duty to apply the law as it exists at the time it renders its decision is especially important in criminal cases. Reliance on an invalid law imposes unwarranted hardship on the defendant while protecting no societal interest in enforcing the invalid law. Id., Kohl, 532 Pa. at -, 615 A.2d at 316, Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981). Thus, even though Smith was not a part of Pennsylvania double jeopardy jurisprudence at the time the trial court heard Rightley’s pre- and post-trial motions, we are bound to interpret it while his case is on direct review.

Several reasons lead to the conclusion that Rightley’s double jeopardy claim should be addressed at this time. First, if we were to find merit to the double jeopardy claim, a discussion of the sufficiency issue would be moot since the trial itself would have been ineffectual. Second, it would be anomalous to make defendant wait until the case were remanded for sentencing on his simple assault convictions to appeal the issue. Rightley is incarcerated awaiting sentencing on the simple assault conviction as well as our resolution of the Commonwealth’s appeal. If the third trial was held improperly, Rightley is incarcerated in violation of his constitutional rights. Finally, no interest would be served by addressing the issue at a later date. Rightley’s claim involves a straightforward interpretation of the law, rather than further factual or evidentiary determinations. We now turn to Rightley’s claim.

After his second trial, Rightley sought a new trial on the basis that certain prosecutorial misconduct prejudiced his right to a fair trial. The trial court granted the motion and this Court affirmed. See, Commonwealth v. Rightley, memorandum opinion, 8/16/91. Our affirmance was based on our opinion that the trial judge did not abuse his discretion in granting a new trial in light of certain prejudicial prosecutorial misconduct. The principal indiscretions at trial included the prosecutor’s “intentional misrepresentation” that a witness had related inconsistent accounts of the incident in question and certain improper statements made by the prosecutor during his closing argument. Id.

In its most general sense, the Double Jeopardy Clause of the Pennsylvania Constitution provides a criminal defendant with two-fold protection. It protects against a defendant being harassed by multiple- prosecutions for the same wrongful act and against multiple punishments for the same crime. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). In cases where a criminal defendant, while on trial for an alleged offense, moves for a mistrial, the request is normally “assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” Id. at 638, 373 A.2d at 107 (citation omitted). The rationale behind this general rule is that a defendant on trial is faced with the decision to move for a mistrial, he should be entitled to either expose the problem to the jury in an attempt to obtain an acquittal, or risk conviction by the first jury and later obtain a reversal and grant of a new trial on appeal. So long as defendant retains control over the course to be followed in the event of potential prejudicial error, double jeopardy protections are not implicated. Id. at 639, 373 A.2d at 108; United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Pennsylvania law has recognized certain exceptions to the general rule which will bar retrial in certain instances of prosecutorial or judicial overreaching. Bolden, supra; Commonwealth v. Hunter, 381 Pa.Super. 499, 554 A.2d 112 (1989).

At the time of Rightley’s third trial, Pennsylvania law-provided that double jeopardy would bar retrial in the event of prosecutorial misconduct only in cases where the Commonwealth attempted to “goad” the defendant into moving for a mistrial. Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987) (adopting Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)); Hunter, 381 Pa.Super. at 505,. 554 A.2d at 116. Prosecutorial misconduct which was “undertaken in bad faith to harass the defendant deliberately” was not conduct to which jeopardy would attach. Simons, 514 Pa. at 14, 522 A.2d at 540. The purpose for drawing this distinction lay in the supposition that where the Commonwealth attempted to “goad” defendant into moving for a mistrial, the Commonwealth could effectively seek a second trial if it was unhappy with the progress of the first. Id.; Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089, 72 L.Ed.2d at 425. Bad faith conduct or harassment of defendant, on the other hand, is not necessarily designed to seek a second trial, but its effect may deprive a defendant of a fair trial, thereby warranting a new trial.

In Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992), our Supreme Court eviscerated the distinction that was formerly drawn under the Oregon v. Kennedy and Commonwealth v. Simons standards. In doing so, the Supreme Court wrote:

We now hold that the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. Because the prosecutor’s conduct in this case was intended to prejudice the defendant and thereby deny him a fair trial, appellant must be discharged on the grounds that his Double Jeopardy rights, as guaranteed by the Pennsylvania Constitution, would be violated by conducting a second trial.

Smith, at -, 615 A.2d at 325.

Rightley contends that since the trial court found that the prosecutor had engaged in intentional misconduct during the second trial, Smith commands that his third trial was held in violation of his double jeopardy rights. While we acknowledge that this is a close case, we cannot agree that Rightley’s third trial was barred by the Double Jeopardy Clause of the Pennsylvania Constitution, as interpreted by our Supreme Court in Smith.

Smith was a a high school principal in the Philadelphia area who was on trial for the murder of a schoolteacher. He was accused of conspiring with the teacher’s husband to murder her and recover insurance proceeds upon her death. Smith’s first conviction was reversed after the Supreme Court found that certain inadmissible hearsay statements were admitted as evidence at trial. He was thus granted a new trial. Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989).

Before the second trial, however, the defense learned that the prosecution had concealed certain physical evidence. The evidence took the form of “adhesive lifters” which contained grains of sand lifted from decedent’s body after the killing. This evidence was vital to Smith’s defense, as it was his contention that the murder took place in Cape May, New Jersey, a location at which Smith could not be placed. There is no mistaking the fact that this evidence was known to the Commonwealth during Smith’s first trial, and that it was critical to his defense. The attorney general prosecuting the case wrote to his superior in a mid-trial memorandum: “It is obvious from [defense counsel’s] tactics that he will attempt to establish that Mrs. Reinert was killed at the shore in Cape May New Jersey ... The sand, therefore, is extremely material to the defense case.” Smith, 532 Pa. at -, 615 A.2d at 323. Not only did the Commonwealth fail to disclose this evidence during Smith’s first trial, but it also accused a police officer of fabricating testimony that sand was found on decedent’s body. Id.

The Supreme Court thus held that while the prosecutor’s conduct was not intended to “goad” defendant into moving for a mistrial, it was “beyond all principles of justice and fairness.” Smith, at -, 615 A.2d at 324. Thus, the Supreme Court overruled Simons and held that double jeopardy would bar retrial in cases where the prosecutors intentionally undertake to deprive defendant of a fair trial. Smith, at -, 615 A.2d at 325.

The effect of Smith, however, is not to create a per se bar to retrial in all cases of intentional prosecutorial misconduct. Rather, Smith merely adds to the exceptions to the general rule that when a defendant moves for a mistrial on the grounds of prosecutorial overreaching, retrial will not be barred under the Double Jeopardy Clause of the Pennsylvania Constitution. Until Smith, the only exception to the general rule was that espoused by Oregon v. Kennedy and Commonwealth v. Simons. Now, in order for double jeopardy to bar retrial in cases of prosecutorial misconduct, there must be a showing that the Commonwealth either (1) goaded defendant into moving for a mistrial, or (2) specifically undertook to prejudice defendant to the point of denying him a fair trial. Absent such a showing, retrial is not barred.

In this case, neither exception is applicable. First, there is no indication anywhere in the record that Rightley was goaded into moving for a mistrial during his second trial. More importantly, the Commonwealth’s conduct was not specifically undertaken to deprive Rightley of a fair trial. As we noted, our Court affirmed the trial court’s grant of a new trial based on two specific instances: when the prosecutor implied that a witness was giving inconsistent testimony and when the prosecutor made three improper statements during his closing argument.

Rightley claims that Smith bars reprosecution in this case because we originally held that the prosecutor intentionally misrepresented that the witness on the stand was giving testimony inconsistent with her former statements. While this may be so, there is no finding that this improper conduct, albeit intentional was intended to deprive Rightley of a fair trial. Indeed, this is not a case like Smith where the egregious conduct was in the nature of concealing exculpatory evidence. Here the over-aggressive prosecutor exceeded the bounds of proper cross-examination. Since Rightley objected to this conduct at trial, it can hardly be argued that this conduct is subversive. This is not the type of prosecutorial conduct which Smith is intended to sanction. As the United States Supreme Court has recognized, “[e]very act on the part of a rational prosecutor is meant to ‘prejudice’ the defendant by placing before the judge or jury evidence leading to a finding of guilt.” Kennedy, 456 U.S. at 674, 102 S.Ct. at 2089, 72 L.Ed.2d at 424. The role of the trial judge is to evaluate when the prosecutor has overstepped the bounds of zealous advocacy into an area which deprives the defendant of a fair trial. Unless the conduct, while perhaps reprehensible, is actually designed to demean or subvert the truth seeking process, Smith will not apply to bar a retrial.

Likewise, the improper comments were not designed to deprive defendant of a fair trial. It is hornbook law that not every intemperate comment made by a prosecutor will be automatic grounds for a new trial. Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985). In this case, there is simply no indication that the prosecutor made the remarks intending to deprive Rightley of a fair trial. We do not read Smith to imply that when a trial judge exercises his discretionary function in granting a mistrial on the basis of an improper prosecutorial comment, a new trial is barred. Indeed, interpreting Smith in such a broad manner may work against a defendant, since a trial judge would be extremely hesitant to grant a mistrial. See, Oregon v. Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089, 72 L.Ed.2d at 425. We therefore conclude that Rightley’s third trial was not barred by principles of double jeopardy.

We now proceed to the merits of the Commonwealth’s appeal. The Commonwealth argues that the trial judge erred by arresting judgment on the ground that the evidence was insufficient to find Rightley guilty of aggravated assault. We agree and reverse.

Our standard of review in this situation is well settled. The effect of a motion in arrest of judgment is to admit all facts which the Commonwealth’s evidence tends to prove. The entire record must be considered in evaluating the sufficiency of the evidence. All of the evidence must be read in the light most favorable to the Commonwealth, which is entitled to all reasonable inferences arising therefrom.
Restated, the test requires, before the granting of a motion in arrest of judgment based on insufficiency of the evidence, that the court make a finding that the evidence supporting the verdict of guilt is so weak and inconclusive that a jury of reasonable men and women could not be satisfied as to the guilt of the defendant beyond a reasonable doubt.

Commonwealth v. Rawles, 501 Pa. 514, 521, 462 A.2d 619, 622 (1983) (citations omitted).

Rightley was charged with committing aggravated assault after allegedly clubbing his victim with an aluminum baseball bat during a scuffle. Aggravated assault is committed when a person “attempts to cause serious bodily injury to another or attempts to cause such injury intentionally, knowingly, recklessly, or under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1); Commonwealth v. Aycock, 323 Pa.Super. 62, 470 A.2d 130 (1983). Intent to cause serious bodily injury may be proved circumstantially. Commonwealth v. Elrod, 392 Pa.Super. 274, 572 A.2d 1229 (1990), alloc. denied, 527 Pa. 629, 592 A.2d 1297. The conduct giving rise to an inference that defendant intended to cause serious bodily injury need not in itself be life threatening. Id.

The evidence adduced at trial, when viewed favorably to the Commonwealth, established that Rightley was engaged in a fist-fight with a man named Ferkler. After the fight subsided, one of Rightley’s friends engaged Ferkler in another fight. While the two were fighting, Rightley procured an aluminum baseball bat and stated to his girlfriend, “Look what this man did to me, no one does this to me and lives.” N.T. 9/27/90, at 54. Rightley approached Ferkler from behind and hit him in the head with the bat. Ferkler fell, and Rightley hit him again across the shoulders. Ferkler fell flat on the ground, and Rightley swung again and missed. Ferkler was treated at a local hospital for a ruptured eardrum and a minor concussion. He still suffers from a hearing impairment.

The trial judge held that this evidence was insufficient to support a finding of aggravated assault. He reasoned:

the relatively minor nature of the injuries sustained by the victim reflects that the blows delivered by the defendant were not intended to cause serious bodily injury to the victim. If it had been a conscious objective of the defendant to cause Thomas Ferkler serious bodily injury he most certainly could have inflicted such injury using the instrumentality of an aluminum baseball bat. The complete absence of such serious bodily injury to the victim under circumstances where the opportunity and instrumentality of inflict such injury existed leads to the inescapable conclusion that the defendant did not act with the conscious objective of causing such injury.

Trial court opinion, at 6. We find this reasoning unpersuasive.

The circumstances surrounding the incident were sufficient to allow a jury to find that Rightley attempted to inflict serious bodily injury on his victim. Rightley was involved in a dispute in which he wielded a baseball bat, swung at his victim three times, and struck him twice. The victim was hospitalized for three days with a concussion. In Commonwealth v. Aycock, 323 Pa.Super. 62, 470 A.2d 130 (1983), defendant used an eighteen-inch piece of channel steel to strike a victim. The victim suffered lacerations which required sutures. This Court held that the evidence was sufficient to support a conviction for aggravated assault. In Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980), defendant struck the victim three times, once to the head, with a tire iron. We held that although the victim did not suffer actual serious bodily injury, the circumstances were sufficient to allow an inference that defendant attempted to cause serious bodily injury.

Furthermore, reasoning similar to that adopted by the trial court in this case was rejected in Commonwealth v. Elrod, supra. In Elrod, defendant held a knife to a victim’s throat, threatening to injure her while he forcibly removed her clothes. Defendant argued on appeal that the evidence was insufficient to support a conviction to support aggravated assault because he had ample opportunity to stab the victim before his attack was interrupted by a passerby who called the police. The fact that he did not stab her, defendant argued, indicated that he had no intention to carry out his verbal threats. This Court rejected that argument holding that it was “eminently reasonable” for the factfinder to conclude that defendant had the requisite intent during the attack. Id., 392 Pa.Super. at 278, 573 A.2d at 1231-1232. Here, Rightley professed that “no one does this to me and lives,” and then bludgeoned the victim to the point where he suffered injuries sufficient to hospitalize him for three days. These circumstances are amply sufficient to allow a factfinder to infer that Rightley intended to cause serious bodily injury to the victim. The mere fact that defendant could have employed his “instrumentality” more effectively, as the trial court intimates, does not preclude this finding.

The trial judge’s order granting Rightley’s motion for an arrest of judgment is reversed. The matter is remanded for sentencing. Jurisdiction is relinquished.

WIEAND, J., concurs in the result.

      . The record indicates that Rightley has an extensive criminal past, and may very well be imprisoned for additional offenses. Still, we must address the issue of whether he is unconstitutionally incarcerated for the current charges regardless of whether he has committed other crimes.

      . There was also evidence that the Commonwealth concealed information that a key Commonwealth witness received favorable treatment in exchange for his testimony. Smith, 532 Pa. at -, 615 A.2d at 322. The Supreme Court focused primarily on the physical evidence issue, however. We will do the same.

      . The heart of our Supreme Court’s dissatisfaction with the Simons and Oregon standard is its inability to address a situation where the Commonwealth conceals certain prejudicial tactics. Smith, 532 Pa. at -, 615 A.2d at 322. Where the Commonwealth prejudices a criminal defendant by employing subversive tactics, these tactics are certainly not meant to “goad” the defendant into moving for a mistrial, since the “intent would be that the defendant should never know how his wrongful conduct ever came about.” Id. (quoting Simons, supra, at 23, 522 A.2d at 544). Indeed, such subversive tactics are often times more heinous than conduct which occurs in defendant’s presence in the courtroom, simply because the injustice done to defendant may never surface. As we discuss in the text, the prosecutors in Rightley's case were not accused of engaging in these subversive tactics.


author: OPINION PER CURIAM:

text:
    617 A.2d 1296
    Elmer OTTAVIO and Anna Ottavio, H/W, Appellees v. FIBREBOARD CORP., PACOR, Inc., Johns-Manville Corp., Eagle Picher Industries, Keene Corp., Raybestos-Manhattan, Celotex Corp., Southern Textile Corp., J.P. Stevens Co., Garlock, Inc., Owens-Illinois Glass, GAF Corp. Appeal of FIBREBOARD CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 1, 1992.
    Filed Dec. 16, 1992.

      R.T. Wentley, Pittsburgh, for appellant.
    Steven J. Cooperstein, Philadelphia, for Ottavio, appellee.
    Before ROWLEY, President Judge, and WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   OPINION PER CURIAM:

Elmer Ottavio filed an action against numerous manufacturers of asbestos products to recover for injuries allegedly sustained as a result of workplace exposure to asbestos during his employment at the Philadelphia Navy Yard, where he had worked for a period of forty (40) years, first as a sheetmetal worker and later as a designer. In a “reverse bifurcated” proceeding, Ottavio sought damages for pleural thickening and a fear of developing future diseases, including cancer, allegedly caused by exposure to asbestos. A jury awarded damages to Ottavio in the amount of one hundred fifty thousand ($150,000) dollars. The claims against most defendants named in the action were thereafter settled. Fibreboard Corporation, however, did not settle Ottavio’s claim and proceeded to trial on the issue of liability. The jury found that Fibreboard and twelve (12) other non-bankrupt manufacturers of asbestos had contributed to Ottavio’s injuries. Post-trial motions were denied, and judgment was entered against Fibreboard in the amount of $18,795. On appeal, Fibreboard contends that the evidence was insufficient to support the jury’s verdict and that the trial court committed numerous errors. We will review these contentions seriatim.

I. Sufficiency of the Evidence

“In reviewing the sufficiency of the evidence to support the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences.” Cohen v. Albert Einstein Medical Center, 405 Pa.Super. 392, 398, 592 A.2d 720, 723 (1991), citing Cooper v. Burns, 376 Pa.Super. 276, 280-281, 545 A.2d 935, 937 (1988), allocatur denied, 522 Pa. 619, 563 A.2d 888 (1989). See also: Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Lopa v. McGee, 373 Pa.Super. 85, 540 A.2d 311 (1988); Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984), affirmed, 511 Pa. 402, 515 A.2d 517 (1986); Reichman v. Wallach, 306 Pa.Super. 177, 184-185, 452 A.2d 501, 505 (1982). In order for a defendant to be held liable in a products liability action, whether under a theory of negligence or strict liability, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-191, 544 A.2d 50, 52 (1988), allocatur denied, 520 Pa. 605, 553 A.2d 968 (1988), citing Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). See also: Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991); Bushless v. GAF Corp., 401 Pa.Super. 351, 585 A.2d 496 (1990); Bilk v. Abbotts Dairies, Inc., 147 Pa.Super. 39, 23 A.2d 342 (1941). In an asbestos action this requires that a plaintiff establish more than mere presence of asbestos in the workplace. Plaintiff must prove that he worked in the vicinity of the products’ use and that, hence, he inhaled asbestos fibers shed by the product of a specific manufacturer. Lilley v. Johns-Manville Corp., supra; Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989); Eckenrod v. GAF Corp., supra, citing Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985). See also: Richards v. Raymark Industries, Inc., 660 F.Supp. 599 (E.D.Pa.1987). See generally: Annotation, Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344 (1973).

Ottavio was not able to identify the manufacturer of asbestos products to which he had been exposed. He testified, however, that he had been exposed to asbestos dust during his work on various ships. He said that he had worked as a machinist from 1947 to 1983 and that during this period he had been present in machinery spaces, firerooms, and engine rooms of ships where his proximity to the use of asbestos had caused him to be exposed to asbestos dust and fibers. In order to prove exposure to asbestos products manufactured by Fibreboard, he introduced the videotaped testimony of George Watts, a former pipecoverer and supervisor at the Philadelphia Navy Yard from 1940 to 1974. Watts had worked with or near Ottavio in machinery spaces of various ships, and he was able to identify the ships on which he had observed Ottavio working and also ships on which Fibreboard asbestos products had been used. Watts said that Ottavio could not have avoided inhaling asbestos laden dust from Fibreboard products.

This testimony, together with testimony given by John Altiere, a co-plaintiff, was sufficient to support the jury’s finding that Fibreboard’s asbestos products had been a substantial factor in causing Ottavio’s injuries. See: Lilley v. Johns-Manville Corp., supra, citing Samarin v. GAF Corp., supra at 348, 571 A.2d at 402-403 (1979), allocatur denied, 524 Pa. 629, 574 A.2d 71 (1990). See also: Taylor v. Celotex Corp., 393 Pa.Super. 566, 581, 574 A.2d 1084, 1092 (1990), citing Odum v. Celotex Corp., 764 F.2d 1486, 1488 (11th Cir.1985) and Richards v. Raymark Industries, Inc., supra and Ward v. Celotex Corp., 479 So.2d 294, 296 (Fla.App.1985). It follows that the trial court did not err when it denied Fibreboard’s motion for judgment n.o.v.

II. The Make-Up of the Jury

In Pennsylvania, parties to litigation have a constitutional right, under Pa.Constitution Art. I, § 6, to trial by jury in all cases in which trial by jury was a matter of right when the first state constitution was established in 1776. See: W.J. Dillner Transfer Co. v. Pennsylvania Public Utility Comm’n., 191 Pa.Super. 136, 149, 155 A.2d 429, 435 (1959); 7 Std.Pa. Prac.2d § 46:1 (1982). Civil actions at law for personal injuries are among those suits in which there is a right of trial by jury. Cf. Murphy v. Cartex Corp., 377 Pa.Super. 181, 192, 546 A.2d 1217, 1222 (1988); Brenckle v. Arblaster, 320 Pa.Super. 87, 93, 466 A.2d 1075, 1077 (1983). The general rule in Pennsylvania is that the jury to which a litigant is entitled as a matter of right is a twelve (12) person jury. This is the number established as a matter of common law practice at the time the right became constitutionally guaranteed. See: Blum v. Merrell Dow Pharmaceuticals, 385 Pa.Super. 151, 164-165, 560 A.2d 212, 219 (1989). See also: Commonwealth v. Fugmann, 330 Pa. 4, 29, 198 A. 99, 111 (1938); Smith v. Times Publishing Co., 178 Pa. 481, 498-499, 36 A. 296, 297 (1897); Wellitz v. Thomas, 122 Pa.Super. 438, 440, 185 A. 864, 865 (1936); Commonwealth v. Collins, 268 Pa. 295, 299, 110 A. 738, 739 (1920). This right, however, may be waived. Therefore, a litigant is entitled to a verdict from a full twelve person jury in a civil proceeding only where the right has not been waived expressly or by implication. See: Kardibin v. Associated Hardware, 284 Pa.Super. 586, 426 A.2d 649 (1981); Warden v. Zanella, 283 Pa.Super. 137, 140, 423 A.2d 1026, 1028 (1980); Stathas v. Wade Estate, 251 Pa.Super. 269, 380 A.2d 482 (1977); Cohen v. Sykes, 180 Pa.Super. 427, 118 A.2d 208 (1955), citing Wright v. Barber, 270 Pa. 186, 113 A. 200 (1921).

In the instant case, although the defendants, including Fibreboard, initially invoked the right to a full twelve person jury, they later waived that right. Cf. Stathas v. Wade Estate, supra at 274, 380 A.2d at 484 (1977); Neely v. J.A. Young & Co., 198 Pa.Super. 196, 199, 181 A.2d 915, 916-917 (1962); Cohen v. Sykes, supra. At the time the jury was empaneled, appellant and its co-defendants acquiesced in a trial by a jury consisting of eight persons. Fibreboard did not object to the number of jurors until after one of the eight jurors became ill and was excused. At that time, Fibreboard joined in a request for a mistrial. It contended that it had not consented to a trial by less than eight jurors.

The decision in Blum v. Merrell Dow Pharmaceuticals, supra, upon which Fibreboard relies, is not applicable to the circumstances of this case. In Blum, the defendant/appellant had demanded a jury trial and a twelve member jury had been empaneled. After one juror had been excused for illness, however, the verdict had been rendered by only eleven jurors. A three judge panel of the Superior Court held that defendant/appellant, having invoked the constitutional right to trial by jury, was entitled to a decision by twelve (12) jurors. The Blum Court considered the historical significance of the language in Article I, § 6 of the Pennsylvania Constitution which states that “trial by jury shall be as heretofore.... ” and concluded that,

Although there is no denying that a scrutiny of the Constitutional debates, treatises on the matter and case law leave one without any (“concrete”) insight as to the origin of the number 12, there is no doubt that this number was considered an essential element of a jury and was incorporated into our inviolate constitutional right of a trial by jury. See Fugmann, supra; Wellitz, supra; Collins, supra; Smith, supra.
As an “essential” feature of a trial by jury, the number 12 is implicit in the term “jury” as found in the Pennsylvania Constitution and is not subject to change except by way of a constitutional amendment, or a pronouncement of the Pennsylvania Supreme Court re-examining its initial interpretations of the “jury trial” question and altering its stance as occurred in Williams v. Florida, 399 U.S. 78, 102, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970), by the United States Supreme Court, wherein it held that the Sixth Amendment did not require a 12-man jury trial in criminal cases, and the fact that the jury at common law was composed of precisely 12 was an historical accident, unnecessary to effect the purposes of the-jury system and wholly without significance “except to mystics”.

Blum v. Merrell Dow Pharmaceuticals, supra at 165, 560 A.2d at 219. Blum, therefore, stands only for the proposition that where a litigant has invoked the right to a jury trial, the verdict must be by a jury of twelve. It does not guarantee a verdict by eight jurors where a party has agreed to a trial before a jury of less than twelve persons. When the right to trial by jury has been waived, as in the instant case, a litigant is entitled to a trial that comports with the rules of procedure according to which he has agreed to be tried.

In the instant case, by acquiescing in the empanelment of eight jurors, Fibreboard consented to the procedure established by Philadelphia Civil Rule 1007.2. This rule does not guarantee a verdict by eight jurors. It provides that a jury

... shall consist, initially, of eight (8) members. Trial in such cases shall continue so long as at least six (6) jurors remain in service. If the number of jurors falls below six (6), a mistrial shall be declared upon prompt application therefor by any party then on record.

We observe, as did the trial court, that this rule is frequently applied to the trial of asbestos cases in Philadelphia. It could be expected that counsel for appellant was familiar with the rule and the procedure followed pursuant thereto. Therefore, it was not error for the trial court to proceed with seven jurors after one of the original eight jurors had been excused because of illness.

III. Apportionment of Liability Among Asbestos Manufacturers Who Were in Bankruptcy

Fibreboard complains that in apportioning liability among defendant manufacturers, the trial court permitted the jury to apportion liability among only those manufacturers who were solvent. It refused to permit apportionment among those defendants who had entered bankruptcy proceedings.

In Pennsylvania, the Comparative Negligence Act, 42 Pa. C.S. § 7102, directs that each tortfeasor shall be liable for a portion of the total damages, to be determined by the ratio between the amount of each party defendant’s causal fault and the total fault attributed to party defendants against whom the plaintiff is entitled to recover. Apportionment of liability among all defendants is designed to allow responsible defendants to contribute to the award in proportion to their degree of negligence. Embrey v. Borough of West Mifflin, 257 Pa.Super. 168, 185, 390 A.2d 765, 774 (1978), citing Anstine v. Pennsylvania Railroad, 352 Pa. 547, 549, 43 A.2d 109 (1945); Mong v. Hershberger, 200 Pa.Super. 68, 186 A.2d 427 (1962). The legislature in Pennsylvania has also adopted the Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S. § 8321, which entitles a joint tortfeasor to recover contribution from another joint tortfeasor after “he has by payment discharged the common liability or has paid more than his pro rata share thereof.” 42 Pa.C.S. § 8324(b).

In accordance with the automatic stay provisions of the Bankruptcy Code, Title 11 U.S.C.A. § 362, six alleged tortfeasors did not participate in the Ottavio trial. While the automatic stay provisions of Section 362 preclude the plaintiffs from commencing or continuing litigation against debtors who seek Chapter 11 reorganization, solvent co-defendants in suits such as those sub judice may be compelled to proceed to trial without the participation of potential joint tortfeasors. See: Gold v. Johns-Manville, 723 F.2d 1068 (3d Cir.1983); Lynch v. Johns-Manville, 710 F.2d 1194 (6th Cir.1983); In re Related Asbestos Cases, 23 B.R. 523 (N.D.Cal.1982). In response to a challenge by solvent defendants to the absence of the bankrupt parties on the basis of hardship and judicial economy, the court in Gold, supra, appropriately observed:

[Ujnder the applicable federal law the Chapter 11 debtors are potential joint tortfeasors and not indispensible parties to the cases now under review. Field v. Volkswagenwerk-AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980). Under New Jersey law, a party compelled to pay more than its proper share of a tort recovery may seek contribution from the other joint tortfeasors. 2A N.J.Stat.Ann. § 15-5.3 (West Supp.1983); Tino v. Stout, 49 N.J. 289, 300, 229 A2d 793, 799 (1967). In effect, then, by ordering trial to go forward, the district court judges have simply shifted the burden of pursuing Johns-Manville from the plaintiffs to whichever defendants are ultimately judged responsible for inflicting at least part of the harm alleged. This, of course, as Tino v. Stout makes clear, is the rationale behind New Jersey’s joint tortfeasor and right-to-contribution statutes.

Gold v. Johns-Manville, supra at 1076.

The scheme of contribution adopted by the Pennsylvania legislature is consistent with the rationale discussed in Gold. Nothing precludes the solvent manufacturers in this case from obtaining contribution from the bankrupts when (and if) they emerge from reorganization proceedings. To hold otherwise would be to require an exercise in futility, for any finding of fault against the bankrupt manufacturers would be unenforceable under the automatic stay provisions of the Bankruptcy Code. In Simpson v. Pittsburgh Corning Corp., 901 F.2d 277 (2nd Cir.1990), cert. denied, 497 U.S. 1057, 111 S.Ct. 27, 111 L.Ed.2d 840 (1990), the evidence at trial established that asbestos products manufactured by Johns-Manville had been used extensively at the plaintiffs worksite. Defendant-Pittsburgh Corning argued that Johns-Manville should have been added to the list in the verdict form of potential tortfeasors. The trial court denied the request, and the Court of Appeals affirmed. The court explained:

Pittsburgh Corning still retains the right to pursue the Manville Trust and, if it can establish liability, obtain contribution. The jury’s allocation of responsibility among the companies it was permitted to consider does not preclude a pro rata reduction of the shares the jury assigned, in the event that Manville is subsequently determined to bear responsibility for some proportionate share of plaintiffs damages. Appellant’s concerns about the difficulty of obtaining contribution are largely conjectural. The Manville bankruptcy caused many people major difficulties.

Id. at 284.

Finally, the bankruptcy rules seem to preclude an apportionment of liability for a party operating under the automatic stay provisions of the Bankruptcy Code. As the court observed in Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir.1985): “§ 362(a)(6) of the Bankruptcy Code, which prohibits ‘any act to assess a claim against the debtor ... ’, seems to prevent any determination in the current action of the percentage of liability attributable to [bankrupts] Johns-Manville and Unarco.” Id. at 474.

The above authorities adequately support the trial court’s decision which refused to submit to the jury a verdict sheet including the bankrupt manufacturers of asbestos products. Fibreboard may bring a future action for contribution against any defendant who emerges from bankruptcy. This will adequately preserve its rights with respect to the claim made by Ottavio.

IV. Was Fibreboard entitled to a jury instruction that Ottavio had the right to bring a second action if he developed future asbestos related injury?

The only manifestation of physical change to Ottavio was an asymptomatic pleural thickening. Because the jury could have found that pleural thickening was asymptomatic and, therefore, not a compensable injury, Fibreboard argues that the trial court’s instruction allowing recovery for possible future disease was error. The jury should have been instructed, it is argued, that if subsequent asbestos related injury were to occur, Ottavio would have been able to recover for such injury in a subsequent action. A correct statement of the law, Fibreboard contends, was contained in a point for charge submitted to and rejected by the trial court as follows:

If you find that any plaintiff does not have an asbestos related disease, then your verdict must be in favor of defendants and against such plaintiffs. Under these circumstances, you should be aware that at such time, if ever, as such a plaintiff may, in the future, develop an asbestos related disease, he would be permitted another day in court.

In reviewing alleged error in jury instructions we apply the standard recited in Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988), as follows:

Where the motion for a new trial is based upon the sufficiency of the jury charge, we must examine the charge in its entirety against the background of the evidence to determine whether error was committed. If an appellate court concludes that the charge was erroneous, a new trial will be granted only if the jury charge might have prejudiced the appellant. A new trial will be granted even though the extent to which the appellant had been prejudiced is unascertainable. Gallo v. Yamaha Motor Corporation USA, 363 Pa.Super. 308, 321-322, 526 A.2d 359, 366 (1987).

Id. at 453, 539 A.2d at 882. See also: Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989), allocatur denied, 525 Pa. 619, 577 A.2d 890 (1990); Jistarri v. Nappi, 378 Pa.Super. 583, 549 A.2d 210 (1988). An alleged inadequacy in jury instructions constitutes trial error if the jury was probably misled by what the trial judge said or there is an omission in the charge which amounts to fundamental error. Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949). See also: Sweeny v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 294 (1961); Giorgianni v. DiSanzo, 392 Pa. 350, 140 A.2d 802 (1958); Hajduk v. Fague, 200 Pa.Super. 55, 186 A.2d 869 (1962). As a general rule, refusal to give a requested instruction containing a correct statement of law is ground for a new trial unless the substance thereof has otherwise been covered in the court’s general charge. Butler v. DeLuca, 329 Pa.Super. 383, 390, 478 A.2d 840, 844 (1984); Furey v. Thomas Jefferson University Hosp., 325 Pa.Super. 212, 227, 472 A.2d 1083, 1091 (1984).

A jury instruction essentially identical to that suggested by appellant in this case was approved by the majority in Manzi v. H.K. Porter Co., 402 Pa.Super. 595, 587 A.2d 778 (1991), reargument denied, 410 Pa.Super, 283, 599 A.2d 992 (1991). The instruction in Manzi, which allowed a second action if compensable asbestos injury thereafter arose, seriously eroded the prior strict application of the single cause of action doctrine in asbestos litigation. In support thereof, it may be observed that a rigid adherence to a single claim approach has proven unfair and unworkable for both plaintiffs and defendants alike in asbestos actions.

To alleviate the difficulties engendered by this single claim approach in asbestos actions, we have now joined the majority of jurisdictions which permit separate actions for separate asbestos diseases. In Marinari v. Asbestos Corporation, Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), we reasoned that, in an action for exposure to asbestos, a plaintiffs claim may encompass only the harm caused by the disease or diseases which have become manifest and that a later separate action may be pursued if and when a separate disease occurs. It follows that in the instant case Ottavio was entitled to recover compensation only for that disease, if any, which existed at the time of trial. He could not recover in an action for asymptomatic pleural thickening monetary damages for the risk of a future disease such as cancer. Damages for a distinct, separate disease, if and when an additional disease should develop at a later time, can be recovered in a second action. Because the trial court failed to give such an instruction, appellant is entitled to a new trial.

Finally, Fibreboard contends that the trial court’s jury instructions were internally inconsistent and that the verdict of the jury was excessive. Our review discloses no merit in these contentions. Similarly, there is no merit in appellant’s contention that Pa.R.C.P. 238 is unconstitutional. See: Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981); Dranzo v. Winterhalter, 395 Pa.Super. 578, 577 A.2d 1349 (1990); Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990). See also: Templin v. Hansford, 737 F.Supp. 27 (E.D.Pa.1990).

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . The Ottavio claim was consolidated for trial with a separate claim by John Altiere, who, in addition to pleural thickening, had developed prior to trial a pulmonary asbestosis and consequent exertional dyspnea (shortness of breath). His claim, for which the jury awarded damages of three hundred fifty thousand ($350,000) dollars, is the subject of a separate review by this Court.