author: JOHNSON, Judge.

text:
    644 A.2d 1206
    COMMONWEALTH of Pennsylvania v. Brian T. McCORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 14, 1994.
    Filed May 10, 1994.
    Reargument Denied July 22, 1994.

      Ralph T. Forr, Jr., Altoona, for appellant.
    John M. Dalty, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before CIRILLO, JOHNSON and BROSKY, JJ.
   JOHNSON, Judge.

Brian T. McCord appeals from the order denying his petition for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. We affirm.

In his PCRA petition, McCord claimed that his constitutional right to a speedy trial and his right to due process were violated by pre-indictment, pretrial and post-verdict delays totaling approximately 12 years.

On February 27, 1979, a fire destroyed a grocery store owned by McCord and his brother. On November 4,1983, the Blair County Investigating Grand Jury recommended that McCord be arrested for arson, 18 Pa.C.S. § 3301, in connection with the fire. On November 29, 1983, McCord was arrested and charged with arson endangering persons, 18 Pa.C.S. § 3301(a)(1), and arson endangering property, 18 Pa. C.S. § 3301(c)(3). Later that same day, McCord was preliminarily arraigned and released after posting bail.

The case was scheduled to be heard in March 1984, which was the next available trial session. The record, however, fails to reveal why the trial did not take place at that time. On April 9, 1984, McCord filed Omnibus Pretrial Motions, which included a request that the court postpone trial until a determination was made regarding all of his pretrial motions. McCord’s pretrial motions also included a request for a change of venire which was later granted. On April 27, 1984, the Commonwealth timely filed a Petition for Extension Pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure (Rule 1100). Pursuant to discussions between the Court Administrator’s Office and defense counsel, it was agreed that McCord’s pretrial motions and the Commonwealth’s petition for extension would be scheduled for a joint hearing set for October 3, 1984. See N.T., Continued Hearing on Omnibus Pretrial Motion and Rule 1100 Hearing, January 6,1986, at 5-6.

Due to a scheduling problem with the visiting judge assigned to decide these matters, the hearing was rescheduled for November 8,1984, and then again rescheduled for December 18,1984. Id. at 6-7. At the December hearing, the court ruled upon some of McCord’s motions, and a hearing on the remaining motions and the Commonwealth’s petition was scheduled for May 13, 1985. Defense counsel filed a motion for continuance which was granted, and the matter was rescheduled for July 29, 1985. A hearing took place on that date, but the court failed to rule on the Commonwealth’s petition for extension. The case was rescheduled for November 6, 1985, and defense counsel again requested a continuance. The matter was continued to January 6, 1986. In the interim, on November 14, 1985, McCord filed a Motion to Dismiss Under Rule 1100. On January 6,1986, the trial court granted the Commonwealth’s petition for extension and denied McCord’s motion to dismiss.

On September 17, 1986, the court disposed of McCord’s remaining pretrial motions and ordered that the matter be set for trial at the next available date. On October 15, 1986, the Commonwealth filed a second Petition for Extension Pursuant to Rule 1100. The trial court granted this petition and ordered that the matter be brought to trial no later than December 12, 1986. Pursuant to the grant of the requested change of venire, a jury was selected in Lebanon County on November 24, 1986.

On December 6,1986, following a five-day trial, a jury found McCord guilty of one count of arson endangering property. On this same date, the court ordered that “bail in this matter as existed heretofore is continued.” On December 12, 1986, McCord filed a Motion in Arrest of Judgment and/or a New Trial claiming, among other things, that the action should be dismissed for a violation of Rule 1100. The record, however, discloses no further action on McCord’s post-verdict motions until June 20, 1990, some 42 months after the motions were filed. On this date, the trial court denied McCord’s post-verdict motions. In its Opinion denying these motions, the court found that the Commonwealth exercised due diligence in bringing this case to trial, and stated that court backlog and McCord’s extensive pretrial motions were sufficient reasons to extend the time periods under Rule 1100.

On January 4, 1991, McCord filed a Supplemental Motion for a New Trial which was to be heard on January 11, 1991. McCord requested a continuance, which was granted, and a hearing on the supplemental motion and sentencing were scheduled for March 19,1991. On this date, McCord’s supplemental motion was denied, and the court sentenced him to a term of imprisonment of 11}6 to 23 months, plus a fine and costs. The court also ordered that McCord’s bail be continued pending appeal. McCord filed a direct appeal which raised seven issues, including the claim that he was entitled to an arrest of judgment since he was not tried within the time period mandated by Rule 1100. This Court reviewed the claim, determined that it was meritless, and affirmed the judgment of sentence on March 17, 1992. Commonwealth v. McCord, 420 Pa.Super. 639, 610 A.2d 66 (1992) (table), appeal denied, 532 Pa. 662, 616 A.2d 983 (1992). Following our supreme court’s denial of his appeal, the trial court ordered that McCord report to the Blair County Prison no later than December 18, 1992, to commence his sentence.

On December 16, 1992, McCord filed a Petition for Writ of Habeas Corpus and Request for Stay from Sentence of Incarceration with the United States District Court for the Western District of Pennsylvania. On December 17, 1992, the District Court entered an order to stay the execution of judgment of sentence for 120 days. By order dated April 14, 1993, the District Court extended the stay for an additional 120 days. On July 1, 1993, the District Court dismissed the Habeas Corpus petition and lifted the stay. Consequently, on July 9, 1993, the trial court entered an order forfeiting the bail which was posted pending appeal and issued a bench warrant for McCord’s arrest. Upon notification of the issuance of the bench warrant, McCord surrendered himself at the Blair County Prison.

On this same day, McCord filed a PCRA petition claiming that he was denied his constitutional right to a speedy trial and due process because of unjustified pre-indictment, pretrial and post-verdict delays. McCord’s motion to set aside the bail forfeiture was filed and denied. On August 17, 1993, the trial court denied McCord’s PCRA petition. This appeal followed.

On appeal, McCord argues that trial counsel was ineffective for failing to:

I. properly and timely raise the speedy trial and due process issues dealing with pre-indictment, pretrial and post-verdict delay under the U.S. and Pennsylvania Constitutions[;]

II. produce evidence as to the prejudice to the interest of the appellant that had occurred by the various delays[;]

III. [ (a) ] call certain witnesses in the defense of this matter[; (b) ] bring to the court’s attention the fact that one female juror apparently performed pretrial discovery of the issues involved[; and, (c) show] circumstantial evidence ... that the jurors felt rushed into their verdict as their bags were packed at the motel where they had been accommodated for the prior week[.]

Brief of Appellant at 3.

When examining a post-conviction court’s grant or denial of relief, this Court’s scope of review is “limited to determining whether the court’s findings were supported by the record and the court’s order is otherwise free of legal error. The findings of the post-conviction court will not be disturbed unless they have no support in the record.” Commonwealth v. Granberry, 434 Pa.Super. 524, 530, 644 A.2d 204, 207 (1994) (citation omitted).

Because the first two issues presented by McCord encompass the same arguments, they can be addressed as a single issue. McCord contends that trial counsel was ineffective for failing (1) to timely raise his speedy trial and due process claims dealing with the various delays under the United States and Pennsylvania Constitutions, and (2) to produce evidence of prejudice to McCord that resulted from the delays. Initially, we note that an allegation that trial counsel was ineffective for failing to raise a speedy trial claim is cognizable under § 9543(a)(2)(v) of the PCRA. See Commonwealth v. Eaddy, 419 Pa.Super. 48, 614 A.2d 1203 (1992), appeal denied, 534 Pa. 636, 626 A.2d 1155 (1993). Thus, we will review the merits of McCord’s claim in which he asserts three separate areas of delay that caused the alleged violation of his right to a speedy trial.

Preliminarily, we observe that McCord has not made an effort to analyze how our Commonwealth’s right to a speedy trial in Article 1, section 9, differs from the protection afforded in our Federal Constitution’s Sixth Amendment. Consequently, as McCord has failed to argue that our Commonwealth’s Constitution provides greater protection in this regard, we decline to address his state constitutional claim. See Commonwealth v. Lucas, 424 Pa.Super. 173, 622 A.2d 325 (1993); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (setting forth general rule that litigants must brief certain factors when state constitution is implicated).

First, McCord maintains that the pre-indictment delay denied him the right to a speedy trial and due process of law. Initially, we note that the Supreme Court of the United States has held that “as far as the Speedy Trial Clause of the Sixth Amendment is concerned, [a lengthy pre-indictment] delay is wholly irrelevant, since ... only ‘a formal indictment or ... the actual restraints imposed by arrest ... engage the particular protections’ of that provision.” United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758 (1977), quoting United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 479 (1971). Hence, in the present case, we agree with the trial court’s conclusion that the pre-indictment delay did not violate McCord’s right to a speedy trial. See Trial Court Opinion, dated August 9, 1993, at 5-6.

McCord, however, alleges that, in addition to his speedy trial claim, he has been denied due process of law because of the pre-indictment delay. We note that the “proper procedure for objecting to the length of delay in being brought to trial is a motion to quash the indictment.” Commonwealth v. Roundtree, 469 Pa. 241, 247 n. 3, 364 A.2d 1359, 1362 n. 3 (1976). “When a defendant argues undue delay in the filing of charges, proof of prejudice is a prerequisite to consideration of whether there has been a denial of due process.” Commonwealth v. Sneed, 514 Pa. 597, 604, 526 A.2d 749, 752 (1987). However, even if a defendant were to show prejudice, the “adverse effect on his defense is excusable if the delay was a derivation of reasonable investigation by the authorities.” Id. at 604, 526 A.2d at 753, citing Lovasco, supra; see also Commonwealth v. Colson, 507 Pa. 440, 452, 490 A.2d 811, 817 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). In addition, a defendant must show that the “Commonwealth’s action in causing or allowing the delay was ‘fundamentally unfair.’ ” Commonwealth v. Grazier, 391 Pa.Super. 202, 209, 570 A.2d 1054, 1057 (1990), citing Lovasco, supra.

Here, the pre-indictment delay was approximately 57 months following the date of the fire. While this time period may be substantial, there is no evidence to suggest that the delay was intentionally caused by the Commonwealth in order to gain a tactical advantage over McCord. Grazier, supra. A review of the record also shows that the investigation of the fire did not reveal evidence of McCord’s involvement until 1982. See N.T., Post-Verdict Motions & Sentencing, March 19, 1991,- at 13; Sneed, supra. Further, the statute of limitations for the crime of arson, five years, had not yet run at the time of the indictment and subsequent arrest. See 42 Pa.C.S. § 5552(b). McCord also claims that he “could have established prejudice from missing or deceased favorable exculpatory witnesses.” Brief for Appellant at 14. We cannot con-elude, however, that this bald assertion, without more, proves that McCord was prejudiced by the delay. Consequently, we are unable to find that trial counsel was ineffective for failing to file a pretrial motion to quash the information on grounds that pre-indictment delay had violated due process.

Next, relying upon Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), McCord contends that his rights to a speedy trial and to due process were violated by the delay of approximately 36 months between arrest and trial and by the delay of 51 months between the verdict and sentencing. Because the right to a speedy trial “is a more vague concept than other procedural rights [and] [i]t is ... impossible to determine with precision when that right has been denied,” the Barker Court adopted a balancing test to determine whether this right has been violated. Commonwealth v. DeBlase, 431 Pa.Super. 100, 106, 635 A.2d 1091, 1093-94 (1994), quoting Barker, supra, 407 U.S. at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 112. This balancing test weighs the conduct of both the prosecution and the defendant. Id. The Court “announced that the following factors are to be used in a speedy trial analysis: the length of the delay, the reason for the delay, whether the defendant has asserted his right to a speedy trial, and any prejudice to the defendant from the delay.” Eaddy, supra, 419 Pa.Super. at 59, 614 A.2d at 1209, quoting Barker, supra.

Because the length of the delay is characterized as a triggering mechanism, we find that both the 36 month and 51 month delays are sufficient to require us to review the other balancing factors. See Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973) (32 month delay between arrest and trial sufficient to require further inquiry); see also Commonwealth v. Glass, 526 Pa. 329, 586 A.2d 369 (1991) (51 month delay between conclusion of trial and sentencing sufficient to trigger further inquiry).

Here, the pretrial delay was due to several factors. The record reveals that a substantial portion of the delay was attributable to the litigation of McCord’s pretrial motions which, as stated above, included a request that the court postpone trial until a decision was made on all of his pretrial motions. “With respect to delays occasioned by pretrial proceedings, the Pennsylvania Supreme Court has observed, ‘[w]e believe that a reasonable amount of time consumed by the disposition of motions ... not made for purposes of delay, regardless of who is the moving party, is justifiable delay.’ ” DeBlase, supra, 431 Pa.Super. at 109, 635 A.2d at 1095, quoting Commonwealth v. Ware, 459 Pa. 334, 347, 329 A.2d 258, 264-65 (1974). In addition, defense counsel requested and received continuances on two separate occasions. The trial court further acknowledged that court backlog in Blair County was another reason for the delay. Although the ultimate responsibility for such a circumstance, i.e., court backlog, rests with the Commonwealth, this reason should be weighed less heavily than a deliberate attempt by the Commonwealth to hamper the defense. Id., 431 Pa.Super. at 106, 635 A.2d at 1094.

As to the issue of post-verdict delay, the record fails to reveal why the trial court waited 42 months before it ruled upon McCord’s post-verdict motions. On January 4, 1991, McCord filed a Supplemental Motion for a New Trial and later requested a continuance. A hearing on the supplemental motion and sentencing were held on March 19, 1991. Thus, sentencing was delayed 2]é months pending disposition of McCord’s motion. However, the &f¿ months that passed before McCord filed this motion is not accounted for by the record. Further, the record does not indicate that either McCord or the Commonwealth deliberately attempted to cause the delays. As stated above, such delays must be weighed against the Commonwealth, but not heavily so. Id.

The third factor to be considered under the Barker test is the assertion of the right to a speedy trial. The record shows that while McCord filed a motion to dismiss under Rule 1100 in November 1985, he never asserted his constitutional right to a speedy trial until he filed his PCRA petition in July 1993. In a recent decision, this Court emphasized that the “failure to assert [this] right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. 431 Pa.Super. at 107, 635 A.2d at 1094. Moreover, from the time of his conviction in 1986 until he was sentenced in 1991, McCord never made a formal demand for speedy disposition of post-verdict motions and never made a request for sentencing. Again, the first time he raised the issue of post-verdict delay was in July 1993. McCord’s failure to petition for immediate sentencing weighs heavily against his speedy trial claim. See Glass, supra, 526 Pa. at 336, 586 A.2d at 372 (“Appellant’s failure to have filed a petition seeking imposition of sentence, during the months that he was supposedly aggrieved by not having received a sentence, counts substantially against his speedy trial claim.”)

The final factor to be considered is whether the pretrial and post-verdict delays resulted in any prejudice to the interests protected by the right to a speedy trial. “Our approach has always been to determine whether there has in fact been prejudice, rather than to presume that prejudice exists.” Id. at 337, 586 A.2d at 372-73. The particular interests the Sixth Amendment was designed to protect are the following: to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. Barker, supra; DeBlase, supra; Commonwealth v. Glover, 500 Pa. 524, 458 A.2d 935 (1983). Of these, the latter interest is the most important since it directly affects the fairness of the defendant’s trial. Id.

McCord cannot claim prejudice from oppressive pretrial incarceration because he remained free on bail throughout this period, and, indeed, did not begin to serve his sentence until July, 1993. McCord does contend that,- as a result of the pretrial delay, he suffered anxiety and concern. This claim, however, rings hollow in light of the fact that he waited 10 years to assert his constitutional right to a speedy trial based on pretrial delay. Moreover, such a claim establishes only minimal prejudice. See Commonwealth v. Deho niesto, 425 Pa.Super. 83, 90, 624 A.2d 156, 160 (1993), appeal denied, 535 Pa. 654, 634 A.2d 217 (1993), citing Barker, supra.

McCord also maintains that he was prejudiced because “several witnesses who would have testified to evidentiary matters ... died between the time of the fire and the trial.” Brief for Appellant at 18. In his brief, McCord does set forth the names of several persons he claims were frequent customers at his business who “could have countered evidence produced by the Commonwealth.” Id. at 19. However, neither McCord nor the certified record discloses the substance of the “evidentiary matters” to which the witnesses allegedly would have testified. Furthermore, there is no showing that trial counsel was informed of the identity of these potential witnesses. Without such evidence, we are constrained to conclude that McCord was not prejudiced by the pretrial delay. See DeBlase, supra, 431 Pa.Super. at 113, 635 A.2d at 1097-98.

In addition, McCord fails to set forth in his brief any prejudice he may have suffered as a result of the post-verdict delay. While we do not condone the delay in the post-verdict proceedings, we are not convinced it requires a reversal of the judgment. Because McCord remained free on bail and because he never made a request to be sentenced, we do not perceive that he has been substantially prejudiced by the delay in sentencing. See Glass, supra; Glover, supra.

In balancing the preceding four factors,, we conclude that McCord failed to establish a violation of his Sixth Amendment right to a speedy trial because of the lack of any evidence that the delay was deliberately caused by the Commonwealth, the correspondingly minimal prejudice to the interests protected by the right to- a speedy trial, and McCord’s failure to timely assert his right to a speedy trial.

We note that within his first issue on the speedy trial claim, McCord also contends that his right to due process has been denied by the pretrial and post-verdict delays. This contention, however, was not adequately developed in the body of his argument. Therefore, we will not consider it. See Pa.R.A.P. 2119. Were we to consider the question, “the same considerations applicable in the context of a speedy trial claim are applicable to a claimed due process violation based on delays in proceedings,” thus, under the four factors delineated in Barker, McCord has not been denied due process of law. Commonwealth v. Pounds, 490 Pa. 621, 630-31 n. 11, 417 A.2d 597, 601 n. 11 (1980); see also DeBlase, supra; Dehoniesto, supra.

In his third issue, McCord asserts that prior counsel was ineffective for failing to (a) call certain witnesses, (b) bring to the court’s attention that a juror discussed the case with her husband prior to trial, and (c) present circumstantial evidence that the jurors were rushed into their verdict. The statute governing this contention, 42 Pa.C.S. § 9543(a), provides, in pertinent part, that a petitioner seeking relief on a claim of ineffective assistance of counsel must plead and prove that counsel’s actions “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h). The “burden of establishing ineffective assistance of counsel rests upon the appellant since counsel’s representation is presumed to be effective.” Granberry, supra, 434 Pa.Super. at 531, 644 A.2d at 207.

Here, McCord makes no attempt to explain how he would have benefitted had counsel undertaken the above-stated actions. While McCord does provide the names of two witnesses, he gives no information as to the substance of their purported testimony nor how such testimony would have been helpful to his case. See Commonwealth v. Mason, 427 Pa.Super. 243, 259, 628 A.2d 1141, 1149-50 (1993) (Appellant must identify witness, demonstrate defense counsel knew of the existence of the witness, show witness would have provided material information at trial, and establish the manner in which the witness would have been helpful to his case). McCord’s additional claims are also nothing more than bald assertions since he fails to explain how they would have changed the verdict or how he was prejudiced. Where an issue does not bear upon a defendant’s ultimate guilt or innocence, and where the defendant fails either to explain how the truth-determining process was undermined, or to allege that counsel’s actions prevented a reliable determination of guilt or innocence, the claim is not cognizable under the PCRA. Commonwealth v. Tanner, 410 Pa.Super 398, 405, 600 A.2d 201, 205 (1991), appeal denied, 530 Pa. 654, 608 A.2d 29 (1992). Here, not only has McCord failed to allege that the truth-determining process has been undermined, but the facts contained in his petition could not support such a claim. Hence, we conclude that this issue is not cognizable under the PCRA.

For the above-stated reasons, we find that the PCRA court’s determination is supported by the record and is otherwise free of legal error. Thus, we affirm the order denying PCRA relief.

Order Affirmed.


source: Caselaw Access Project

author: KELLY, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    644 A.2d 1213
    Carol S. KUPETZ, Individually and as Administratrix of the Estate of Joseph J. Kupetz, Deceased, Appellant, v. DEERE & COMPANY, INC. and Troyer Construction Equipment Company, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1993.
    Filed May 23, 1994.
    Reargument Denied Aug. 1, 1994.
    Petition for Allowance of Appeal Denied Dee. 15, 1994.

      Gary Eiben, Erie, for appellant.
    Theresa Homisak, Pittsburgh, for appellee Deere & Co.
    Sue Beck, Erie, for appellee Troyer Const.
    Before CAVANAUGH, TAMILIA and KELLY, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether the “crashworthiness” or “second collision” doctrine is recognized as a valid theory of recovery under Pennsylvania law in a products liability action. We are also called upon to determine whether assumption of risk maintains its viability as a complete defense in an action brought pursuant to the “crash-worthiness” or “second collision” doctrine. We hold that the “crashworthiness” or “second collision” doctrine is merely a subset of a products liability action and as such is a recognizable theory of recovery under Pennsylvania law. We also hold that assumption of risk is a complete defense to an action brought pursuant to the “crashworthiness” or “second collision” doctrine. Thus, we affirm.

The relevant facts and procedural history are as follows. The decedent, Joseph J. Kupetz, together with his brother, James Kupetz, established a company known as Kupetz Brothers in 1964. Kupetz Brothers, was engaged in the business of paving, topsoil and materials work. Joseph Kupetz operated all of the various machines that Kupetz Brothers utilized in their business. In June of 1971, the Kupetz Brothers purchased a John Deere 350 bulldozer/crawler (JD 350) from Troyer Construction Equipment, Inc. (Troyer). The JD 350 was manufactured by Deere and Company (Deere) in 1970. At the time of its purchase, the JD 350 was not equipped by Deere with a rollover protection system (ROPS) as a standard part of the machine. The function of ROPS is to minimize the extent of bulldozer rollover and to protect the operator if a rollover occurs. The decedent and his brother were offered the option by Troyer of purchasing ROPS at an additional cost to them, but the brothers declined to purchase the optional ROPS for their JD 350. Troyer included with the JD 350 an operator’s manual which was read by both brothers.

In August of 1988, the Kupetz Brothers purchased some topsoil from the Pennsylvania Department of Transportation (PennDOT) which they were required by the terms of the contract to remove from PennDOT’s Peach Street Yard in Erie. The topsoil was piled on a large, steeply sloped, irregularly shaped mound that was overgrown with weeds. On August 18, 1988, Joseph Kupetz appeared at the PennDOT yard to pay for the topsoil. An employee of Kupetz Brothers, Dale Smith, was then sent by either James Kupetz or the decedent to the PennDOT yard with a front-end loader and a dump truck to remove the topsoil; however, because the topsoil was too heavily compacted, he was unable to remove it with a front-end loader. Smith then radioed his predicament to the Kupetz Brothers’ office. A short time later, the decedent arrived at the PennDOT yard with the JD 350. The decedent began assisting Smith to remove the topsoil by pushing it downward off the top of the mound into the front-end loader. The decedent would then back the JD 350 up the steeply sloped topsoil mound while Smith deposited the topsoil in the dump truck. The decedent and Smith continued to work in this manner for approximately one-half hour when after placing a topsoil load in the dump truck, Smith saw the JD 350 lying upside down on the back side of the topsoil mound. Smith ran to the place where the decedent and the JD 350 were located. Smith then shut off the engine and ran for help. The decedent was removed from the overturned JD 350 and was taken to the hospital where he died two days later. There were no eyewitnesses to the actual accident.

The decedent’s widow, Carol S. Kupetz (appellant), individually and as executrix of the decedent’s estate, filed a three-count complaint against Deere and Troyer. An amended complaint was subsequently filed by Ms. Kupetz on July 31, 1990. In Count I of her amended complaint, Ms. Kupetz asserted a products liability action alleging that the JD 350 was defectively designed, manufactured and delivered to the decedent by Deere and Troyer in an unreasonably dangerous and defective condition due to the absence of ROPS which rendered the machine uncrashworthy. In Count II of her amended complaint, Ms. Kupetz asserted that Deere and Troyer were negligent in the design, manufacture, marketing and sale of the JD 350 without ROPS. In Count III, Ms. Kupetz, in addition to the other damages claimed in Counts I and II, sought to recover punitive damages from Deere and Troyer.

After extensive discovery occurred, the parties filed pretrial motions in limine seeking to exclude certain evidence. The trial court held pre-trial argument on the parties’ respective motions in limine. As a result of this pre-trial argument, the trial court excluded from evidence the fact that ROPS was offered to buyers at the time the JD 350 was sold to the decedent and his brother. The trial court also excluded from evidence the fact that the decedent had stated to Troyer’s salesman, Robert C. Brown, that Kupetz Brothers intended to use the JD 350 for flat terrain, low clearance work inside ships, and for grading residential driveways and garages. Additionally, the trial court precluded evidence regarding the fact that the decedent had available another bulldozer, a Caterpillar D-3 bulldozer with ROPS, that he chose not to use on the day of the accident. Finally, the trial court excluded from evidence that the Kupetz Brothers had removed ROPS from another bulldozer they owned. The trial court, however, denied Ms. Kupetz’s request to exclude from evidence a photograph of the Kupetz Brothers’ Caterpillar D-3 bulldozer that was equipped with ROPS. During the course of argument on the pre-trial motions in limine, Ms. Kupetz dropped her negligence cause of action and her claims for punitive damages and the case proceeded to trial solely on the products liability cause of action.

At trial, the court refused to admit testimony offered on behalf of Deere and Troyer from other experienced heavy equipment operators regarding their knowledge of the risk of using heavy machinery on dirt piles such as the one presented in the instant case. The trial court also refused to admit the entire operator’s manual for the JD 350 which included information that ROPS was available as safety equipment and provided safety suggestions for using the JD 350 as offered by Deere and Troyer. The trial court, instead, only allowed into evidence a single page of the owner’s manual which stated never drive the JD 350 close to the edge of a ditch or excavation.

At the close of the trial, the following special interrogatories were issued to the jury for their consideration:

1. Did the Plaintiff prove that the John Deere bulldozer in question was defective when sold to Kupetz Bros.?

YES_ NO_

2. Did the Plaintiff prove that such defect as you found to exist in the John Deere bulldozer at the time of its sale to Kupetz Bros, was a substantial factor in bringing about the death of Joseph Kupetz?

YES_ NO_

If your answer is “NO”, inform the tipstaff that you have reached a verdict; if your answer is “YES” go on to Interrogatory No. 3.

3. Did the Defendants prove that the decedent, Joseph Kupetz, voluntarily assumed the risk of injury and death in the manner in which his injury and death occurred?

YES_ NO_

If your answer is “YES”, inform the tipstaff that you have reached a verdict; if your answer is “NO” go on to Interrogatory No. 4.

4. What is the total dollar amount of your verdict?

WRONGFUL DEATH $_

SURVIVAL ACTION $_

(Official Record # 92, Reproduced Record 190A-191A). The jury responded in the affirmative to the first three special interrogatories, finding that while the JD 350 was defective without ROPS and a substantial cause of the decedent’s fatal injuries, the decedent assumed the risk for his fatal injuries. Thus, the jury returned a verdict in favor of Deere and Troyer. Post-trial motions were filed by Ms. Kupetz requesting the entry of judgment in her favor, or, in the alternative, a new trial. Troyer and Deere also filed post-verdict motions questioning several of the trial court’s pre-trial and trial rulings to exclude certain evidence. All post-verdict motions were denied by the trial court. The trial court, however, granted Ms. Kupetz’s motion to discontinue her case against Troyer. Ms. Kupetz then filed a timely appeal which was followed by the timely cross-appeals of Troyer and Deere.

We will begin by addressing the issues raised by Ms. Kupetz in her appeal from the judgment in favor of Troyer and Deere. In her appeal, Ms. Kupetz raises the following issues for our review:

I. DOES ASSUMPTION OF THE RISK RETAIN ITS VIABILITY AS A DEFENSE IN PRODUCTS LIABILITY ACTIONS WHEREIN THE PLAINTIFFS CLAIM IS BASED UPON A LACK OF CRASH-WORTHINESS OF A VEHICLE?

II. IS ASSUMPTION OF THE RISK AVAILABLE AS A DEFENSE TO A LACK OF CRASHWORTHINESS CLAIM IN A CASE WHERE THE EVIDENCE ALLEGEDLY SUPPORTING ASSUMPTION OF THE RISK IS NOT DISTINGUISHABLE FROM COMPARATIVE NEGLIGENCE?

III. WAS THERE SUFFICIENT EVIDENCE OF THE DECEDENT’S KNOWLEDGE OF THE DEFECTIVE CONDITION OF THE TRACTOR OR OF HIS VOLUNTARILY ASSUMING THE RISK TO SUSTAIN THE JURY’S FINDING THAT THE DECEDENT HAD ASSUMED THE RISK?

IV. WHERE THERE WAS ABSOLUTELY NO EVIDENCE THAT THE DECEDENT KNEW OF THE EXISTENCE OF THE DEFECTIVE CONDITION OF A TRACTOR UPON WHICH HE WAS RIDING, WHICH DEFECT WAS A SUBSTANTIAL CAUSE OF HIS DEATH, AND WHERE THERE WAS ABSOLUTELY NO EVIDENCE THAT THE DECEDENT VOLUNTARILY ASSUMED THE RISK CREATED BY THE DEFECT, WAS THE ISSUE OF ASSUMPTION OF THE RISK PROPERLY SUBMITTED TO THE JURY?

V. MAY THE DEFENDANTS IN WHOSE FAVOR JUDGMENT WAS ENTERED FILE A CROSS-APPEAL?

Appellant’s Brief at 3.

In her first four issues on appeal, Ms. Kupetz contends that the trial court committed error by instructing the jury on the defense of assumption of risk because: 1) assumption of risk is not a viable defense to a claim brought under the crashworthiness doctrine; 2) the evidence presented by Troyer and Deere in support of the assumption of risk defense is indistinguishable from evidence that would be utilized to show decedent’s death was partially caused by his own contributory negligence which is not a permissible defense in a products liability action; and 3) the evidence presented by Troyer and Deere merely showed that the initial accident may have been caused by the momentary inadvertence or negligence of the decedent; the evidence did not show that the decedent was subjectively aware that the absence of ROPS rendered the bulldozer uncrashworthy in a rollover accident, and that he appreciated this danger and voluntarily chose to encounter this danger by operating the defective bulldozer on the hill. Thus, the evidentiary requirements for an assumption of risk instruction in a products liability action were not met and the instruction was, therefore, erroneous.

We begin our analysis by considering whether the “crash-worthiness” or “second collision” doctrine is a permissible theory of recovery in this Commonwealth and whether assumption of risk is a viable defense to such a claim.

The history of Pennsylvania’s modern law of products liability begins with Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). In that case, the Pennsylvania Supreme Court adopted section 402A of the Restatement of Torts Second. That section reads in pertinent part:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if ... (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Two years after its adoption of section 402A in Webb, the Pennsylvania Supreme Court held that “lack of proper safety devices can constitute a defective design for which there may be recovery.” Bartkewich v. Billinger, 432 Pa. 351, 354, 247 A.2d 603, 605 (1968).

Hammond v. International Harvester Co., 691 F.2d 646, 649 (1982).

In order to submit a section 402A products liability case to a jury, it must be shown that the product was defective, that the defect existed while the product was in the control of the manufacturer or retailer, and that the defect was the proximate cause of the decedent’s injuries. Walton v. Avco Corp., 530 Pa. 568, 576, 610 A.2d 454, 458-59 (1992); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93, 337 A.2d 893, 898-99 (1975); Forry v. Gulf Oil Corp., 428 Pa. 334, 340, 237 A.2d 593, 597 (1968). A product is defective when it is not fit for the intended use for which it is sold. Azzarello v. Black Bros. Co. Inc., 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978); Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974); Barris v. Bob’s Drag Chutes & Equipment, 685 F.2d 94, 101 (3rd Cir.1982).

The crashworthiness doctrine is merely a subset of a products liability action pursuant to Section 402A and usually arises in the context of a vehicular accident. Dorsett v. American Isuzu Motors Inc., 805 F.Supp. 1212, 1218 (E.D.Pa. 1992); Roe v. Deere and Co., Inc., 855 F.2d 151, 154 (3d Cir.1988). The crashworthiness doctrine provides that a manufacturer/seller is liable in “situations in which the defect did not cause the accident or initial impact, but rather increased the severity of the injury over that which would have occurred absent the design defect.” Mills v. Ford Motor Co., 142 F.R.D. 271 (M.D.Pa.1990) (citing Barris v. Bob’s Drag Chutes & Safety Equipment, supra at 99).

The term crashworthiness means the protection that a motor vehicle affords its passenger against personal injury or death as a result of a motor vehicle accident. Barris v. Bob’s Drag Chutes & Safety Equipment, supra at 96 n. 1; Jeng v. Witters, 452 F.Supp. 1349, 1355 (M.D.Pa.1978), aff'd men, 591 F.2d 1335 (1979). The term “second collision,” as used in the definition of crashworthiness of a motor vehicle in products liability cases, generally refers to the collision of the passenger with the interior part of the vehicle after the initial impact or collision. Jeng v. Witters, supra at 1355; Householder v. General Motor Corp., et al, 33 Beaver 30, 31 (1973). The second collision concept, however, is still applicable in situations where the person is thrown from the vehicle and impacts with the highway. Jeng v. Witters, supra at 1355. The principle behind the “second collision” concept is that, because of the way the vehicle has been manufactured, a person’s injuries have been aggravated unnecessarily; and such a concept has equal applicability, whether the person’s second collision is with the interior of the vehicle or the exterior ground. Id.

The effect of the crashworthiness doctrine is that a manufacturer has a legal duty to design and manufacture its product to be reasonably crashworthy. Huddell [v. Levin], 537 F.2d [726] at 735 [3rd Cir.1976]. Accord, Olsen [v. U.S.], 521 F.Supp. [59] at 63 [E.D.Pa.1981]. In terms of strict product liability, this means that a manufacturer has to include accidents among the “intended” uses of its product. Huddell, 537 F.2d at 735. A manufacturer who fails to fulfill this legal duty will be liable to the passenger of a car whose injuries are increased due to the design defect in the automobile. Liability will attach even though the defect in manufacture or design did not cause the initial accident or impact.

Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., supra at 98.

In order to prevail on a crashworthiness theory in a products liability action under Section 402A, a plaintiff must demonstrate 1) that the design of the vehicle was defective and that when the design was made, an alternative, safer design practicable under the circumstances existed; 2) what injuries, if any, would have resulted to the plaintiff had the alternative, safer design, in fact, been used; and 3) some method of establishing the extent of plaintiffs enhanced injuries attributable to the defective design. Dorsett v. American Isuzu Motor, Inc., supra; Craigie v. General Motors Corp., 740 F.Supp. 353 (E.D.Pa.1990).

Although the federal courts have stated that there have been no authoritative Pennsylvania appellate cases adopting or rejecting the “crashworthiness” or “second collision,” doctrine, they have adopted the “crashworthiness” or “second collision” doctrine on the basis of their prediction that our Supreme Court would adopt this doctrine when faced with the issue. See Roe v. Deere and Co., Inc., supra; Craigie v. General Motors Corp., supra; Jeng v. Witters, supra. Our Supreme Court, however, has implicitly recognized the “crash-worthiness” or “second collision” doctrine in McCown v. International Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975).

In McCown v. International Harvester Co., supra, the appellee’s truck, unrelated to any steering difficulty, struck a guardrail while the appellee was attempting to complete a tight turn. The collision caused the steering wheel to spin rapidly in the direction opposite to the turn. The spokes of the spinning wheel struck the appellee’s right arm, fracturing his wrist and forearm. The appellant admitted that the steering system in the truck was defective but claimed that the appellee’s careless driving rendered him contributorily negligent for his injuries. While the Supreme Court’s decision in this case mainly rejected contributory negligence as an available defense in a products liability action, the court did recognize that in a products liability action the defect itself did not have to be the cause of the accident and permitted the appellee to recover where the defect was the cause of the appellee’s injuries after the collision occurred. Accordingly, as our Supreme Court has long explicitly recognized the viability of a cause of action for products liability pursuant to Section 402A, see Webb v. Zern, supra, and has implicitly recognized the viability of the “crashworthiness” or “second collision” doctrine in McCown v. International Harvester Co., supra, we hold that the “crashworthiness” or “second collision” doctrine, which is merely a subset of a cause of action for products liability under Section 402A, is a permissible theory of recovery in this Commonwealth.

Next, we must determine whether the assumption of the risk theory maintains its viability as a defense in a products liability action brought under the “crashworthiness” or “second collision” doctrine. Ms. Kupetz maintains that because the same evidence presented by Troyer and Deere in the products liability action supporting its assumption of the risk defense could also be utilized to support a prohibited contributory negligence defense, the doctrine of assumption of risk is no longer a viable defense in a products liability crashworthiness case. We disagree.

Assumption of risk and contributory negligence theories may sometimes overlap because certain conduct may exhibit all the elements of both. See Fish v. Gosnell, 316 Pa.Super. 565, 576-77, 463 A.2d 1042, 1048 (1983); Weaver v. Clabaugh, 255 Pa.Super. 532, 388 A.2d 1094 (1978). However, assumption of risk is a separate defense with a distinct character. Fish v. Gosnell, supra 316 Pa.Super. at 577, 463 A.2d at 1048; Joyce v. Quinn, 204 Pa.Super. 580, 205 A.2d 611 (1964). All voluntary risk-taking that can be described by the ambiguous phrase “assuming risk” does not constitute the defense of assumption of the risk. Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 612-13, 437 A.2d 1198, 1209 (1981) (plurality) (citing Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 72, 63 S.Ct. 444, 453, 87 L.Ed. 610, 620 (1943) (Frankfurter, J., concurring)). “Rather, all elements of the defense — that the plaintiff “fully understands” the specific risk, ‘voluntarily chooses’ to encounter it and ‘under circumstances that manifest a willingness to accept it’ — must be ‘demonstrated] ... in fact’ before the theory will be submitted to the jury.” Fish v. Gosnell, supra 316 Pa.Super. at 577, 463 A.2d at 1048 (citing Marinetti v. Montour R.R. Co., 278 Pa.Super. 403, 416-17, 420 A.2d 603, 610 (1980)).

A particularly difficult element of the defense is in defining “circumstances that manifest a willingness to accept” the risk. Restatement (Second) of Torts, § 496C. The nature and purposes of the defense help courts in defining these circumstances. Assumption of risk “reflects the individualism of the common law” which allows people to make their own choices and does not undertake to “protect [them] from the effects of [their] own ... voluntary actions.” Rutter v. Northeastern Beaver County School District, supra 496 Pa. at 606-607, 437 A.2d at 1206.

Thus, the essence of the assumption of risk defense is not fault but that the plaintiff changed his position. Before the injury, he intelligently acquiesced in a known danger and abandoned his right to complain, but afterwards, seeks to assert the claim he had waived. See Jones v. Three Rivers Management Corp., supra [483 Pa. 75, 394 A.2d 546 (1978) ]. To imply such waiver from conduct and circumstances alone can be a source of “misapprehension and confusion” and “frequent misapplication.” W. Prosser, Law of Torts, at 445 (4th ed.1971). Aware of this danger, our Court announced, even before comparative negligence, that it would take a “restrictive attitude” toward the circumstances from which the assumption of risk defense might be implied. Fahringer v. Rinehimer, 283 Pa.Superior Ct. 93, 98-99, 423 A.2d 731, 734 (1980). Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of risk. Conduct close in time and place to the accident, on the other hand, while it may contain an element of voluntary risk-taking, does not demonstrate, a deliberate abandonment of the right to complain, but rather is better judged by its reasonableness, that is, by negligence principles.

Fish v. Gosnell, supra 316 Pa.Super. at 577-78, 463 A.2d at 1048-49.

Thus, the differences between the defense of assumption of risk and the defense of contributory negligence has been aptly summed as follows:

[T]he practical difference [between assumption of risk and contributory negligence] is in the degree of proximity to the particular harm. The preliminary conduct of getting into a dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent.

Id. at 578-79, 463 A.2d at 1049 (citing Schlemmer v. Buffalo, Rochester & Pittsburgh Ry., 205 U.S. 1, 27 S.Ct. 407, 51 L.Ed. 681 (1907) (construing Pennsylvania law)).

Our Supreme Court has held that a plaintiff cannot be precluded from recovery of a products liability case because of his own negligence. McCown v. International Harvester Co., supra; Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Thus, our Supreme Court has specifically rejected contributory negligence as a defense in a products liability action. McCown v. International Harvester Co., supra 463 Pa. at 15-16, 342 A.2d at 382.

The Supreme Court, however, has held that a plaintiff is precluded from recovery in a products liability action if he knows of the specific defect eventually causing his injury and voluntarily proceeds to use the product with knowledge of the danger caused by the defect. Berkebile v. Brantly Helicopter Corp., supra 462 Pa. at 100, 337 A.2d at 901 (citing Ferraro v. Ford Motor Co., 423 Pa. 324, 327, 223 A.2d 746, 748 (1966)). Thus, assumption of risk remains a defense in a products liability case. Howell v. Clyde, 533 Pa. 151, 162 n. 10, 620 A.2d 1107, 1113 n. 10 (1993); Rutter v. Northeastern Beaver County School District, supra 496 Pa. at 613, 437 A.2d at 1209; Berkebile v. Brantly Helicopter Corp., supra 462 Pa. at 100, 337 A.2d at 901. An assumption of risk instruction, however, may only be given in a products liability action where there is evidence introduced by the defendant that the plaintiff had subjective knowledge of the defect causing the injury and appreciated the danger involved before using the product. Berkebile v. Brantly Helicopter Corp., supra 462 Pa. at 100, 337 A.2d at 902. Under no circumstances, however, is a plaintiffs knowledge of the defect contained in the product to be determined utilizing the objective knowledge of a “reasonable man.” Id. This Court has followed this well-established precedent on numerous occasions, see Lonon v. Pep Boys, Manny, Moe and Jack, 371 Pa.Super. 291, 296, 538 A.2d 22, 25 (1988); Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 49, 527 A.2d 140, 146 (1987); Walasavage v. Marinelli, 334 Pa.Super. 396, 408, 483 A.2d 509, 515 (1984), and, as an intermediate appellate court, is not permitted to deviate from this precedent unless or until our Supreme Court sees fit to change it. Foflygen v. Zemel, 420 Pa.Super. 18, 615 A.2d 1345 (1992).

Although the McCown v. International Harvester Co., supra decision preceded the enactment of Pennsylvania’s Comparative Negligence Law, 42 Pa.C.S.A. § 7102, our Supreme Court has not subsequently considered the effect of the Comparative Negligence Law on its holding. Remy v. Michael D’s Carpet Outlets, 391 Pa.Super. 436, 446, 571 A.2d 446, 452 (1990). Instead, the Supreme Court has continually and steadfastly refused to allow a products liability action under Section 402A to become contaminated by negligence principles. See Lewis v. Coffing Hoist Division, Duff Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987); Azzarello v. Black Brothers Co., Inc., supra; Berkebile v. Brantly Helicopter Corp., supra. The Supreme Court has also refused to permit the .concept of comparative fault to creep into a products liability action. Walton v. Avco Corp., supra 530 Pa. at 584, 610 A.2d at 462. Because of our Supreme Court’s emphatic divorcement of negligence concepts from our products liability law, this Court has declined to follow sister states in holding comparative negligence principles applicable to products liability actions. Remy v. Michael D’s Carpet Outlets, supra 391 Pa.Super. at 446-47, 571 A.2d at 452; Staymates v. ITT Holub Industries, supra 364 Pa.Super. at 45, 527 A.2d at 144; Dambacher v. Mallis, 336 Pa.Super. 22, 60, 485 A.2d at 408, 428 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985). Therefore, the law in this Commonwealth remains that the comparative fault of a plaintiff is irrelevant in products liability cases; if there has been an assumption of risk, however, in that event, there is complete defense. Remy v. Michael D’s Carpet Outlets, supra 391 Pa.Super. at 447, 571 A.2d at 452.

Accordingly, because the “crashworthiness” or “second collision” doctrine is merely a subset of a products liability action, assumption of risk maintains its viability as a complete defense to all claims brought under this doctrine. A plaintiffs contributory negligence may not, however, be utilized under any circumstances to apportion fault between the plaintiff and defendant in a crashworthiness or any other type of products liability action. Thus, in situations where the evidence submitted at trial overlaps and exhibits elements of both assumption of risk and contributory negligence, an assumption of risk jury instruction is warranted while a contributory negligence instruction is not. Additionally, an instruction requiring the jury to compare and apportion the relative fault of the plaintiff and the defendant in a products liability action is not permitted.

Next, we must determine whether, based upon the evidence presented by Troyer and Deere, the trial court properly gave the jury an assumption of risk instruction. As stated earlier, a plaintiff is precluded from recovery in a products liability action if he or she knows of the specific defect eventually causing his injury and voluntarily proceeds to use the product with knowledge of the danger caused by the defect. Berkebile v. Brantly Helicopter Corp., supra 462 Pa. at 100, 337 A.2d at 901; Ferraro v. Ford Motor Co., supra 423 Pa. at 327, 223 A.2d at 748. Preliminary and deliberate conduct done with an awareness of the specific risk inherent in the activity is a proper basis for implying assumption of risk. Fish v. Gosnell, supra 316 Pa.Super. at 578, 463 A.2d at 1049. A plaintiffs knowledge and understanding of the risk may be shown by circumstantial evidence. Mucowski v. Clark, 404 Pa.Super. 197, 202-03, 590 A.2d 348, 350 (1991); Staymates v. ITT Holub Industries, supra 364 Pa.Super. at 49, 527 A.2d at 146; Weaver v. Clabaugh, supra 255 Pa.Super. at 536, 388 A.2d at 1096. In other words, evidence that a party assumed a risk may be inferred from surrounding circumstances; there need not be actual proof that the plaintiff knew, understood or appreciated the risk. Fierro v. Ruesch Corp., 610 F.Supp. 778, 782 (E.D.Pa.1985) (citing Green v. Parisi, 478 F.2d 313, 315 (3d Cir.1973)); see also Weaver v. Clabaugh, supra; Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179, 96 A,2d 181 (1953).

At trial, Troyer and Deere presented evidence that the decedent had been in the business of operating heavy construction machinery for more than twenty years and had operated the ROPS-less JD 350 on numerous occasions since purchasing it in 1971. Troyer and Deere also presented evidence that the decedent had read the owner’s manual including portions of the manual which stated that the operator should use the utmost caution when operating the JD 350 around ditches and excavations. Additionally, Troyer and Deere presented evidence which showed that the decedent was the co-owner of a newer bulldozer that was equipped with ROPS.

Moreover, the evidence elicited at trial reveals that the decedent had been on the PennDOT lot two times before the accident occurred. The evidence further reveals that the initial decision to use a front-end loader, instead of the ,JD 350, to remove the topsoil from the PennDOT yard was made by either the decedent or his brother. Finally, the evidence showed that the decedent operated the ROPS-less JD 350 on a steeply sloped topsoil mound in a slow, deliberate and systematic fashion for more than one-half hour before the ROPS-less JD 350 rolled over the back side of the topsoil mound.

Accordingly, the evidence reveals that the decedent, through his long experience with operating heavy construction machinery and reading of the owner’s manual was aware that the JD 350 could tip over when used on a steeply graded slope. See Watson v. Zanotti Motor Company, 219 Pa.Super. 96, 280 A.2d 670 (1971) (appellant, a first time snowmobile operator, could not have known that snowmobiles were inherently risky when used on an icy surface and, therefore, could not have assumed the risk that the snowmobile would tip over). The evidence also reveals that the decedent was cognizant of the existence and purpose of ROPS through his co-ownership of another bulldozer equipped with such a safety device, and the lack of ROPS on the JD 350. Additionally, the evidence implies that the decedent or his brother preliminarily believed that the JD 350 was unsuited for the job of removing the dirt pile from the PennDOT yard by directing that a front-end loader be used to remove the topsoil. Finally, the evidence demonstrates that the decedent operated the ROPS-less JD 350 in a slow, deliberate and systematic fashion on a steeply sloped topsoil mound for more than one-half hour before the fatal accident occurred, thereby raising the logical inference that he knew what he was doing was very dangerous. Thus, based upon the evidence elicited at trial, there was a sufficient basis from which the jury could infer that the decedent was subjectively aware of the defective nature of the ROPS-less JD 350 and appreciated the danger of using this defective bulldozer on a steeply sloped surface, so that the jury could conclude that the decedent assumed the risk for his fatal injuries. Therefore, in accordance with the evidence presented by Troyer and Deere, the trial court properly submitted an assumption of risk instruction for the jury’s consideration.

Based upon the foregoing, the judgment entered in favor of Troyer and Deere is affirmed.

Judgment affirmed.

CAVANAUGH, J., joined the opinion by KELLY, J., and filed a concurring opinion.

CAVANAUGH, Judge,

concurring:

I join in the majority decision, but write to express my disagreement with the per curiam order of this court which quashed the cross-appeals of Troyer and Deere. These parties are asserting cross-appeals, not appeals, and could be duly aggrieved in the event a new trial is awarded by this or any other court with appropriate jurisdiction.

Moreover, the timeliness of the cross-appeals has not been raised by the parties and the extent to which the cross-appeals may be said to have been untimely was based upon a conjectural analysis which was not subjected to an opportunity for adversarial consideration by the parties to this case.

      . We note that the cross-appeals filed by Troyer at No. 268 Pittsburgh 1993 and Deere at No. 288 Pittsburgh 1993 were quashed by per curiam order of the full court on August 25, 1993. Therefore, the cross-appeals of Troyer and Deere are no longer part of this case and will not be addressed herein.

      . We note that the "crashworthiness” or "second collision” doctrine has been discussed approvingly in dicta by this Court in Lobianco v. Property Protection Inc., 292 Pa.Super. 346, 356-57, 437 A.2d 417, 422-23 (1981) (en banc). Additionally, while a member of the Common Pleas Court of Beaver County, President Judge Rowley of this Court approved the "crashworthiness” or "second collision” doctrine and permitted such a case to proceed to trial over defendant’s motion for summary judgment. See Householder v. General Motors Corp., et al. 33 Beaver 30 (1973).


author: OLSZEWSKI, Judge.

text:
    644 A.2d 1223
    COMMONWEALTH of Pennsylvania v. John I. REED, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1994.
    Filed June 8, 1994.

      Linda F. Gerencser, Asst. Public Defender, Lancaster, for appellant.
    Christopher A. Hackman, Asst. Dist. Atty., Lancaster, for Com., appellee.

      Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the judgment of sentence entered against John Reed. A jury convicted him of indecent assault and corruption of minors, and acquitted him of attempted rape. He contends that the trial court violated his confrontation rights by severely limiting his cross-examination of the victim. He also claims that he should have been permitted to impeach the victim regarding her past sexual conduct. After, a careful consideration of the issues presented, we vacate the judgment of sentence, and remand for a new trial on indecent assault.

Reed and the alleged victim, fourteen-year-old L.R., had a sexual encounter in a public restroom located in Lancaster County Park. All persons involved largely agree on the events which led to the interlude and it is undisputed it actually occurred; the only real dispute is whether it was consensual. On May 4, 1992, Reed stopped by his sister’s house on his way to pick his girlfriend up from work. L.R., who is a friend of Reed’s niece and Reed’s son’s ex-girlfriend, was visiting. Reed, L.R., and his niece talked for a bit before Reed stated that he had to leave to meet his girlfriend. He asked the girls if they wanted to tag along and they agreed. When Reed arrived at his girlfriend’s workplace she had already left, so he turned around and took the girls back home. As he dropped them off, he asked L.R. if she would need a ride home. She responded affirmatively and, although he left for a while, Reed returned to give L.R. her ride.

At this point the accounts diverge. L.R. testified that as Reed approached the park, he entered it and asked her to check and see if anyone was in the men’s restroom. L.R. agreed, and as she entered the bathroom, Reed grabbed her by her coat. He forced her into the bathroom, demanded that she remove her clothes, and attempted to have intercourse. He was unsuccessful in achieving penetration because L.R. wiggled spryly, making penetration impossible. Reed contended, conversely, that L.R. was unusually frank and described having intercourse with his son during the initial car ride. During the second ride, the two were joking about sex and Reed innocently posited that they have intercourse. L.R., after being assured that Reed would not tell his son what happened, agreed and told him to pull into the park, because she had “done it there before.” They entered the restroom, disrobed, and L.R. asked Reed if he had a condom. He replied that he didn’t, and thus he rubbed his penis on her stomach until he achieved ejaculation.

I.

Reed’s first issue centers on his efforts to impeach L.R.’s testimony. Reed has two impeachment theories, both of which were disallowed at trial. He wanted to establish that L.Rfs testimony was fraught with bias and improper motive. Not only was she involved in a past sexual relationship with Reed’s son, but she was also abused by her mother. He contends (apparently) that the former would prove that L.R. would be “out to get” her former lover, and that Reed could be the perfect target. Furthermore, he contends that L.R. fabricated the rape allegations because if her mother found out the truth, she would harm her. We will address Reed’s arguments in turn.

a.

Reed contends first that his confrontation rights under the Pennsylvania Constitution were violated when the trial court refused his attorney access to CYS file. The CYS file allegedly contained information germane to L.R.’s abusive relationship with her mother. Although the trial court ordered the file’s release, it reviewed it and determined that it did not contain any material information. Reed claims that without his attorney’s review of the file “with an advocate’s eye,” his right to cross-examine L.R. was meaningless. We disagree.

Our state supreme court held, under the United States Constitution, that CYS files must be disclosed to defense counsel for review. Commonwealth v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985), reversed, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The United States Supreme Court, however, held that the Confrontation Clause was a trial right, not a discovery tool. So long as the defendant is given a meaningful opportunity to cross-examine at trial, the confrontation clause is not implicated. 480 U.S. at 53,107 S.Ct. at 999. Under the Fourteenth Amendment’s Due Process Clause, however, the defendant should have access to relevant information in the CYS file, since the relevant privilege statute envisions disclosure of otherwise protected information in limited circumstances. Id. at 59, 107 S.Ct. at 1002. The Court concluded that an in camera inspection by the trial court is adequate to protect the defendant’s due process rights. Id. This court subsequently held that this rationale should apply equally to a challenge under our state constitution’s confrontation clause. Commonwealth v. Nissly, 379 Pa.Super. 86, 549 A.2d 918 (1988) , alloc. denied, 522 Pa. 595, 562 A.2d 319 (1989).

In Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989) , however, our Supreme Court found that the Pennsylvania Constitution provided an accused greater confrontation rights than the Federal Constitution. There, the court held that a common law psychotherapist privilege should give way to a defendant’s right to confront the patient with statements she made that are material to the accusation, and that in camera inspection is insufficient to protect this right. Our Supreme Court acknowledged that Ritchie was overruled, but declared that “the issue before us arises not under the federal constitution but under our State Constitution and does not involve a request to discover statutorily protected state maintained records but rather a request to produce Psychotherapy records in the possession of the hospital where treatment was administered.” Id. at 431, 567 A.2d 1357. In this case, the trial court held that since Lloyd specifically excepted statutory privileges, Ritchie applies here. Reed urges that Lloyd applies because our Supreme Court adopted its original Ritchie rationale (which interpreted the United States Constitution) under the state constitution.

We agree with the trial court. Our Supreme Court addressed a very similar claim in Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992), where defendant claimed that his confrontation rights should entitle him to subpoena his victim’s rape trauma counselor, despite the latter’s absolute statutory privilege of confidentiality. After recognizing that the United States Confrontation Clause was not implicated because defendant was provided the opportunity to cross-examine the victim, our Supreme Court refused to apply Lloyd in response to defendant’s argument that his state right to confrontation was violated. The Supreme Court explained:

The [Lloyd] court voted, however, that the Lloyd case, unlike the Ritchie case, did not involve a statutory privilege. Rather, the court in Lloyd was concerned with a common law privilege which could not defeat a defendant’s rights. Implicit in the distinction drawn by the Lloyd court is the recognition that the existence of a statutory privilege is an indication that the legislature acknowledges the significance of a particular interest and has chosen to protect that interest.

Id. at 282, 602 A.2d at 1298.

We feel that our Supreme Court’s acknowledgment of Ritchie ’s distinction controls the outcome here. That is, in Ritchie, the Supreme Court held that due process required that an in camera inspection be held to determine whether the information in the CYS file was relevant to the defendant’s case. Wilson’s acknowledgment of this rationale under our state confrontation clause indicates that, although our state confrontation rights might be more protective than those under the federal constitution, there is still a need to balance the legislature’s choice to maintain confidentiality of certain materials against the right of a defendant to confront a victim with relevant information at trial. Thus, in Wilson, the court held that an absolute statutory privilege allowed a defendant no access to protected statements. Id.; see Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987) (state interest in protecting statements made to psychiatrist outweighs defendant’s right to any disclosures), alloc. denied, 518 Pa. 617, 541 A.2d 744 (1988).

Here, the statutory privilege is nearly identical to the one presented in Ritchie and allows for disclosure of any information in CYS files upon court order. 23 Pa.C.S.A. § 6340(a)(5). We therefore find that the balance struck by the United States Supreme Court in Ritchie (requiring an in camera inspection for relevant information) applies with equal force under our state confrontation clause, despite Lloyd. Where the legislature has enacted a privilege, Wilson makes it clear that the confrontation clause does not provide a defendant with unfettered access to the privileged statements. We feel, given the legislature’s contemplation that CYS file materials may be disclosed pursuant to court order, that an in camera inspection was sufficient in this case to protect both the defendant’s right to meaningfully cross-examine his victim and the state’s right to keep this information confidential.

b.

Reed contends next that the trial court violated his confrontation rights by precluding him from cross-examining L.R. regarding her relationship with her mother. The trial court claims that it did not preclude this line of questions and, in any event, it was irrelevant. We agree with Reed and award him a new trial.

First, our review of the record leads us to the conclusion that, despite the Commonwealth’s and trial court’s contentions, the trial court precluded Reed from pursuing his theory that L.R. fabricated the rape charge because she was afraid of her mother. Reed’s counsel asked L.R. during cross-examination whether she dated Reed’s son and whether his son was now dating another girl. The Commonwealth objected to the question and Reed’s counsel offered a lengthy offer of proof. He explained that L.R. was expelled from school because she threatened to kill the person whom Reed’s son was currently dating. He also explained that L.R. was disciplined at school because of various outbursts, and that school officials were aware of her abusive relationship with her mother. Counsel stated:

We have a child who is afraid of her mother, we have abusive situation referred to children and youth we have this situation. I think that sets forth this situation where she made up a story or put the blame on [Reed] to avoid being beaten by the mother and that we have the mother being in a position to make that call [to police reporting the rape].
The most important thing is the motivation for her to lie. We have that again and again with this abusive parent and to receive punishment, to go ahead and put the blame on someone else.
In addition to that, we have the animosity to the son because he’s seeing someone else and the extent of the animosity and the extent of her anger is evidenced by the uncontroverted fact of these knife incidents that she threatened to kill this Star person and was expelled from the school. This is not — this is important. I think the jury needs to know this, about these threats.

N.T. 1/7/93, at 252. The trial court sustained the Commonwealth’s objection to both impeachment theories:

I can’t see and I’ll state for the record as to what this defendant’s son’s activities with another girl has to do with showing bias that this witness would accuse the defendant of these charges plus whether or not this witness got expelled from school and the reasons for that are totally irrelevant and I’ll sustain your objection to all of this proffered, evidence.

Id. at 153 (emphasis added). The trial court’s assertion that it did not preclude Reed from exploring L.R.’s motive to lie is contradicted by what it said at trial. Reed did not abandon this claim or fail to raise it. He made an affirmative attempt and was rebuked.

It is, moreover, a fundamental proposition that a defendant be permitted to cross-examine a Commonwealth witness to explore her motive to fabricate testimony. Commonwealth v. Robinson, 507 Pa. 522, 491 A.2d 107 (1985). “It is particularly important that, where the determination of a defendant’s guilt or innocence is dependent upon the credibility of a prosecution witness, an adequate opportunity be afforded to demonstrate through cross-examination that the witness is biased.” Commonwealth v. Birch, 532 Pa. 563, 565, 616 A.2d 977, 978 (1992). Although the trial court is vested with broad discretion to limit the scope of cross-examination, excluding an inquiry into bias will often be an abuse of that discretion.

It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial____ The right is not to be denied or abridged because incidentally facts may be developed that are irrelevant or prejudicial to the other party.... On the facts of this case ... where the credibility of [the prosecution witness] was crucial to the guilt or innocence of the accused, it was an abuse of discretion for the court not to permit cross-examination as to [the prosecution witness’] bias.

Id. at 566, 616 A.2d at 979 (quoting Commonwealth v. Cheatham, 429 Pa. 198, 203-204, 239 A.2d 293, 296 (1968)); Commonwealth v. Robinson, supra.

Here, too, the Commonwealth’s case against Reed relied almost exclusively on L.R.’s credibility. If she lied to her mother about the incident in order to protect herself, it is vital that Reed at least be entitled to pursue the issue on cross-examination. Indeed, the premise of Ritchie, supra, is that the confidentiality of CYS materials may be protected so long as the victim is cross-examined at trial. When the Supreme Court decided that the federal confrontation clause does not include pre-trial discovery techniques, it stated that “[n]ormally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. In short, the Confrontation Clause only guarantees the opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id., 480 U.S. at 53, 107 S.Ct. at 999 (emphasis in original).

Reed was not given an opportunity to cross-examine L.R. regarding her potential motive to fabricate testimony, an opportunity to which he is constitutionally entitled. We wish to emphasize that this is distinct from his right to review the CYS file — a right to which he is not entitled. When the trial court denied Reed the opportunity to question L.R. for improper motive, it not only abused its discretion, but denied Reed a constitutional right as well.

c.

Finally, we feel obligated to address an issue not raised by the Commonwealth, that is, whether the error actually affected the outcome of the trial. An error is harmless, precluding retrial, when we are satisfied beyond a reasonable doubt that it did not affect the jury’s verdict. We find that the error was prejudicial with respect to the indecent assault conviction, but harmless with regard to corruption of the morals of a minor.

Because the credibility of L.R.’s testimony went untested, the jury could have given more weight to her account of the events than it would have otherwise. As a result, it was more likely to determine that the interlude was forcible. This clearly brings Reed’s indecent assault conviction into question because lack of consent is an element of that crime. 18 Pa.C.S.A. § 3126. In a corruption of minors prosecution, however, consent is never an issue. Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988); Commonwealth v. Bricker, 397 Pa.Super. 457, 580 A.2d 388 (1990), alloc. denied, 527 Pa. 596, 589 A.2d 687 (1991); 18 Pa.C.S.A. § 6301. So long as the Commonwealth pleads and proves that an underlying act (without regard to consent) tends to corrupt the morals of a minor, a conviction for corruption will stand. Anderson, supra (acquittal for indecent assault not inconsistent with conviction for corruption of the morals of a minor).

Here, Reed admitted that the act underlying the corruption charge occurred; his only contention was that the act was consensual. As such, the corruption conviction would have been proper even if the jury credited his account of the events. In other words, since the error in this case affected the jury’s ability to evaluate whether the sexual interlude between L.R. and Reed was consensual, it could have had no bearing on the jury’s conviction for a crime in which consent is irrelevant. Our grant of a new trial, therefore, will be limited to the indecent assault charge. As for corruption of the morals of a minor, however, the error was harmless and the conviction for that offense shall stand. We will, however, order that the entire judgment of sentence be vacated and resentencing on the corruption charge will be necessary.

II.

Reed complains next that the trial court should have permitted him to explore L.R.’s past sexual conduct. He claims that although the Rape Shield Law generally prohibits testimony regarding a rape victim’s past conduct, the Commonwealth opened the door to the issue by presenting testimony that L.R. was a virgin. Although we disagree with his conclusion, we do agree somewhat with his premise and address this issue so that the problems at trial will not reoccur.

During her direct testimony, L.R. stated that she and Reed’s son, John John, were once in a relationship, but that it had ended:

Q: Did you ever meet Mr. Reed before [the day of the incident]?

A: When we went to his son’s party.

Q: Is that the only other time?

A: Yeah.

Q: How long have you known his son?

A: I don’t know.

Q: What kind of relationship do you have with his son?

A: Nothing now.

Q: Did you before?

A: Yeah.

Q: What was it before?

A: We wére just talking and stuff.

Q: Were you friends?

A: No, we were boyfriend and girlfriend but we didn’t do nothing.

Q: What happened after Mr. Reed came to the house?

N.T. 1/7/93 at 216. On cross-examination, Reed questioned L.R. about the events of the day. He was particularly interested in discerning the nature of the relationship with John John, because it was his claim in defense that L.R. was boastful about her past sexual conduct during the car ride which led to the interlude. Counsel pursued the issue:

Q: During this first ride — excuse me. Before you left the house, Mr. Reed asked you if you wanted to go with him to pick up his wife, is that right?

A: Yeah.

Q: Okay, good. And you left and on the way there, you and Missy were talking, weren’t you.

A: Yeah.

Q: You were talking about boys, weren’t you?

A: No.

■ Q: You weren’t talking about John John?

A: No.

Q: Now, are you telling me that you didn’t say anything about having sex with John John?

Id. at 236. The trial court sustained the Commonwealth’s objection to this inquiry and precluded Reed from pursuing the topic of L.R.’s sexual relationship with John John.

Furthermore, the Commonwealth introduced the testimony of the treating physician, who explained the revelations of his examination. The doctor testified that he did not conduct an internal investigation of L.R. because objective criteria did not indicate that she had actually been raped:

I did not do a full internal examination for two reasons. One, my external examination revealed that the hymen was intact indicating that there was no penetration, there was no signs of trauma to the external genitalia and both she and— well, she had stated that there was no penetration and she was very upset and terrified of having an internal exam, and after my external exam, I felt it wasn’t necessary ...

N.T. 1/7/93 at 271. Although the prosecutor made no reference at the time to the possibility that the doctor’s testimony might prove that L.R. has never had intercourse, the Commonwealth used the doctor’s testimony offensively during its closing argument by questioning the credibility of Reed’s story:

Does it make sense and does the rest of what he said make any sense? There was testimony that he asked her if his son’s dick is big. And then he also asked her if she would like to do it with him. Does that make sense that he went back there to give her a ride home and as soon as she got in the car he said would you like to do it with me and this 14-year-old girl said sure, I do it all the time let’s go to the county park in the restroom. Does that make sense?
Dr. Fisher testified that this girl’s hymen was intact. She never had sex with anybody. Does his version make sense in light of the physical evidence?

N.T. 1/8/94 at 464-465. After closing arguments, the court denied Reed’s motion for a mistrial and also his motion to reopen the case to explore the extent of L.R.’s sexual contact with John John.

The Pennsylvania Rape shield statute prohibits the admission of “evidence of specific instances of the alleged victim’s past sexual conduct,” unless the prior conduct occurred between the victim and the accused and is relevant to prove consent. 18 Pa.C.S.A. § 3104. Although the rule seems clear enough, the defendant’s right of confrontation does not allow an absolute proscription against all instances of prior sexual conduct. Commonwealth v. Wall, 413 Pa.Super. 599, 606 A.2d 449, alloc. denied, 532 Pa. 645, 614 A.2d 1142 (1992). When the evidence of prior sexual conduct might tend to prove that the victim had a motive to fabricate the accusation, it should be admitted if its probative value outweighs its prejudicial effect. Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985). For example, in Wall, supra, the victim was removed from her mother’s care after she successfully prosecuted a sexual assault against her mother’s paramour. When the victim accused Wall of sexual assault, the prior sexual conduct was admissible when the evidence established that the victim wanted to be released from the care of Wall’s wife (the victim’s aunt). Based on her prior experience, it helped prove that the victim knew she could leave her aunt’s care if she brought successful charges of abuse from within the household. Of course, as in Wall, the proffered evidence must always be relevant and the trial court has wide discretion to exclude it. See also Commonwealth v. Smith, 410 Pa.Super. 363, 599 A.2d 1340 (1991).

Here, it is important to distinguish between two aspects of the proffered evidence. First, did L.R. actually perform sexual intercourse with John John? Second, did L.R. actually say to Reed that she had sex with John John? We have no trouble concluding that the first inquiry is entirely irrelevant in this case. L.R. may or may not have actually had sex with John John, but it does not advance the inquiry of whether Reed forcibly attempted to have intercourse with her. What does advance the inquiry, however, is whether L.R. actually said that she did, because it lends credibility to Reed’s story. Simply stated, the truth of any assertion made by L.R. in the car does not matter, but whether she made the assertion at all is relevant because it helps explain Reed’s state of mind during the car trip.

Reed might like to establish that the statement is true because if L.R. really did have sex with John John, it might help explain why she boasted in the car. This would inevitably make Reed’s story more believable, because as it stood, why would L.R. lie and claim to Reed that she had intercourse with his son? We are not convinced, however, that the potential value of the testimony necessarily renders it admissible. The Rape Shield Law is designed to exclude evidence where its potential to distract the jury and embarrass the witness outweighs its value. Here, the jury could still find that L.R. actually boasted even if she had never had sex. As we stated, the only reason the statements could have been allowed in at all was to prove the effect they might have had on Reed. Allowing him to prove the truth of those statements, once admitted into evidence, to prove that they were actually made, is nothing more than a bootstrap. The value of the evidence is minimal and its potential to distract great.

Reed should have been permitted to question L.R. regarding whether she made the statement, however. The Rape Shield Act prohibits proof of “specific instances” of past sexual conduct. Here, counsel did not attempt to establish any instances of past conduct, but only whether she made a particular statement. As we discuss above, the statement itself refers to past conduct, but was not admitted for its truth. Therefore, the stigma that one might normally attach to past sexual conduct — that the victim’s promiscuity proves that she “asked for it” — is not present because no past conduct is being used against her. What is being used to challenge the victim here is the potential that she made statements, for whatever reason, which immediately preceded a sexual interlude which unquestionably occurred. Her motivation behind those statements — seduction, self-promotion, or mere information — is not only relevant, but necessary to enable the jury to piece together the sequence that led to an act for which Reed faces imprisonment.

Furthermore, we disapprove of the Commonwealth’s efforts to use L.R.’s lack of prior sexual conduct to discredit Reed’s testimony when it managed to exclude any positive evidence of L.R.’s prior sexual conduct. “The Rape Shield Law was intended to be a shield not a sword.” Commonwealth v. Berkowitz, 415 Pa.Super. 505, 532, 609 A.2d 1338, 1352, alloc. granted, 531 Pa. 650, 613 A.2d 556 (1992). Here, the Commonwealth sought to exclude any references to L.R.’s potential prior sexual conduct with John John, then argued since L.R. was a virgin, Reed’s story was unbelievable. Not only, as we have discussed at length, is L.R.’s actual sexual history entirely irrelevant to this case, its use by the Commonwealth here was prejudicial because it could have led the jury to believe that it was relevant. If the Commonwealth wants to keep L.R.’s past out of the case, it must do exactly that.

III.

In sum, then, we find that the trial court erred in foreclosing Reed’s effort to cross-examine L.R. with regard to whether she had an improper motive to accuse him of a crime, and whether she stated that she had prior sexual intercourse with John John. We therefore vacate the entire judgment of sentence, grant a new trial with respect to the charge of indecent assault, and remand for resentencing on the corrupting the morals of a minor charge. Reed cannot, upon retrial, have access to the CYS file unless the trial court determines, after an in camera hearing, that it contains information material to the case. Any inquiry into specific acts of L.R.’s past sexual conduct is irrelevant and should be precluded under the Rape Shield Law.

The judgment of sentence is vacated in its entirety. The case is remanded for a new trial on the indecent exposure charge, and for resentencing on the charge of corruption of the morals of a minor. Jurisdiction is relinquished.

CAVANAUGH and WIEAND, JJ., concur in the result.

      . The relevant statute provides that reports written by child protection service agents shall be confidential and made available only to, among other entities, "a court of competent jurisdiction pursuant to a court order.” 11 Pa.C.S.A. § 2215(a)(5) (repealed). The current privilege is codified at 23 Pa.C.S.A. §§ 6339 and 6340(a)(5), and includes identical provisions insofar as this case is concerned.

        . The trial court disallowed impeachment on both of Reed's theories, but Reed only posits here that he should have been allowed to question L.R. with respect to her motive to lie to her mother.

      . We acknowledge that, arguably, the trial court's use of the phrase "all of this proffered evidence” refers only to the bias theories explicitly mentioned in the trial court's ruling. Although we would normally agree with the trial court’s conclusion that if defense counsel. was confused about the scope of the ruling he should have asked for clarification, the record makes it clear that the trial court believed that the "abusive relationship” impeachment theory was irrelevant. For example, during Reed’s case-in-chief, counsel wanted to call a witness, Ceena Getz, to testify regarding L.R.’s relationship with her abusive mother. The Commonwealth objected on relevancy grounds, and the trial court sustained the objection. N.T. 1/8/93. Thus, viewing the record as a whole, it is apparent that even if defense counsel had sought a clarification of the trial court's ruling, he still would have been precluded from asking L.R. about her relationship with her mother, a line of questions that, as we discuss below, was entirely relevant to impeach.

      . Although not presented directly, we feel differently with regard to Reed’s theory about L.R.’s hostility toward Reed’s son. Any suspicion that L.R.’s hostility toward her ex-boyfriend’s new relationship would "spill-over” toward Reed is entirely speculative and properly excluded.

      . Although we find that the corruption conviction was proper — and retrial on that crime unnecessary — we must vacate the entire judgment of sentence. Upon reviewing the transcript from the sentencing hearing, it is apparent that the trial court considered the jury's belief that the event was forcible as an aggravating factor in imposing sentence for corrupting the morals of a minor. It stated:

        I have, in addition, considered the legislature in enacting the sentences which are applicable to these particular crimes, considered them to be, especially the corruption of minors, very serious, and I cannot escape the fact that we have a thirty-seven-year old, mature man, supposedly a responsible individual, offering a ride to a fourteen-year-old girl, and if you want to believe what the jury believed, taking advantage of her. They did not convict you of rape, Mr. Reed, but they certainly believed you assaulted her sexually.

      N.T. 8/31/93, at 39 (emphasis added). As we have tirelessly explained, the jury's factual finding with respect to L.R.’s credibility cannot be trusted and therefore cannot, at this point, be considered for any reason. We must therefore vacate the entire judgment of sentence, as it appears that the sentence for indecent assault (or the factual findings supporting it) affected the corruption sentence. See Commonwealth v. Williams, 379 Pa.Super. 538, 550 A.2d 579 (1988), alloc. denied, 522 Pa. 612, 563 A.2d 498 (1989). We decline to comment on whether the forcible nature of an act may be considered at all in sentencing for corrupting the morals of a minor, in light of the well-settled proposition that consent is irrelevant to that crime.