text:
    507 A.2d 1263
    COMMONWEALTH of Pennsylvania v. Antonio MICHAEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 4, 1986.
    Filed April 28, 1986.

      Keith Williams, Assistant Public Defender, Doylestown, for appellant.
    Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellee.

      Before WICKERSHAM, McEWEN and JOHNSON, JJ.
   McEWEN, Judge:

This is an appeal from a judgment of sentence of from five years to ten years imprisonment imposed by the distinguished Judge Kenneth G. Biehn after appellant pleaded guilty but mentally ill, pursuant to 18 Pa.C.S. § 314, to charges of robbery, receiving stolen property, simple assault, and related offenses. We affirm.

The occurrence is described in the brief of appellant as follows:

On September 28, 1984 the appellant took a car belonging to Linda Mallory of Bensalem Township, Bucks County, Pennsylvania. During the robbery the appellant held a handgun on Ms. Mallory. The appellant was apprehended shortly thereafter in Northeast Philadelphia.

At the sentencing hearing on May 30, 1985, the Commonwealth and appellant joined in a stipulation that Antonio Michael was guilty but mentally ill. A psychiatric report was incorporated into the record. The appellant was thereupon sentenced to a term of imprisonment of from five years to ten years to be served at the Philadelphia State Hospital. Thereafter, appellant timely filed a motion for reconsideration of sentence alleging (1) that the sentence was unreasonable, (2) that Section 9712 of the Sentencing Code, 42 Pa.C.S. § 9712, was unconstitutional, and (3) that Section 9712 was improperly applied following a verdict of guilty but mentally ill. Appellant’s motion for reconsideration was denied. This appeal timely followed the denial by the sentencing court of the motion for reconsideration of sentence.

Appellant presents two issues for our consideration, namely:

A. Did the sentencing court improperly apply the Mandatory Sentencing Act, 42 Pa.C.S. § 9712, because it is unconstitutional?
B. Did the sentencing court improperly apply the Mandatory Sentencing Act, 42 Pa.C.S. § 9712, following a verdict of guilty but mentally ill?

Appellant first asserts that 42 Pa.C.S. § 9712, the Mandatory Sentencing Act, is unconstitutional in that the statute: (1) violates due process by failing to require pretrial notice of its applicability; (2) permits proof of visible possession of a firearm by a preponderance of the evidence, rather than beyond a reasonable doubt, in violation of due process; (3) denies a defendant the right to a jury trial since the statute provides that it is the court which determines whether the Commonwealth has established the requisite facts for finding that the mandatory sentence must be imposed; (4) violates the federal constitutional doctrines of separation of powers and due process of law by vesting the Commonwealth with “unbridled discretion” to determine when the mandatory sentencing provisions will apply to a convicted defendant; and (5) violates Article 5, Section 10(c) of the Pennsylvania Constitution and the separation of powers doctrine by dictating the burden of proof at the sentencing hearing and the manner in which the evidence must be considered.

The first three arguments as well as the final challenge to the constitutionality of Section 9712 of the Judicial Code, 42 Pa.C.S. § 9712, have been carefully addressed and prudently rejected in the opinion of the eminent Chief Justice Robert N.C. Nix, Jr. in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), cert. granted sub nom McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985) (proof of visible possession by a preponderance of the evidence satisfies the requirements of due process; separation of powers is not violated by Section 9712’s limitation on the Court’s discretion in sentencing, since such discretion is not innate power of the judiciary but is derived entirely from statute). See also Commonwealth v. Anderson, 345 Pa.Super. 407, 498 A.2d 887 (1985), (notice after conviction but before sentencing of Commonwealth’s intention to proceed under Section 9712 satisfies due process; Section 9712 does not improperly deny the right to have a jury make relevant factual determinations); Commonwealth v. Bannister, 345 Pa.Super. 178, 497 A.2d 1362 (1985). We must, therefore, dismiss these assertions as meritless.

We likewise reject the further attack on the constitutionality of the act based upon the assertion that it violates the federal constitutional doctrines of separation of powers and due process of law by allegedly vesting the prosecutor with unbridled discretion to determine when the mandatory sentencing provisions will apply. Our eminent colleague, Judge William F. Cercone, has so ably discussed and rejected this argument in Commonwealth v. Cofoni, 349 Pa.Super. 407, 503 A.2d 431 (1986), that we need offer no further comment on this issue.

Finally, appellant contends that the Mandatory Sentencing Act, 42 Pa.C.S. § 9712, was improperly applied by the sentencing court to a conviction resulting from a plea of guilty but mentally ill entered pursuant to 18 Pa.C.S. § 314. We disagree. The sentencing provisions applicable to persons found guilty but mentally ill are found in Section 9727 of the Judicial Code which provides in relevant part:

(a) Imposition of Sentence — A defendant found guilty but mentally ill or whose plea of guilty but mentally ill is accepted under the provisions of 18 Pa.C.S. § 314 (relating to guilty but mentally ill) may have any sentence imposed on him which may lawfully be imposed on any defendant convicted of the same offenses. Before imposing sentence, the court shall hear testimony and make a finding on the issue of whether the defendant at the time of sentencing is severely mentally disabled and in need of treatment pursuant to the provisions of the Act of July 9, 1976 (P.L. 817, No. 143) known as “Mental Health Procedures Act.”

42 Pa.C.S. § 9727 (emphasis provided).

Appellant contends that the use of the word “may” in the statutory provision is an expression of the legislative intent to grant a discretion to the sentencing authorities that supercedes the mandatory provision of Section 9712. We disagree. Section 9727 unambiguously provides that a defendant whose plea of guilty but mentally ill is accepted under the provisions of 18 Pa.C.S. § 314 is subject to any sentence which may be lawfully imposed upon any defendant convicted of the same offense. Pursuant to Section 9712, any defendant convicted of robbery while in visible possession of a firearm is subject to the mandatory sentencing provision of that section. Since an individual convicted of robbery while in visible possession of a firearm would be subject to the mandatory sentence provisions of Section 9712, so too is an individual whose plea of guilty but mentally ill to the same offense is accepted under the provisions of 18 Pa.C.S. § 314. The provisions of Section 9712(c) leave no room for discretion, and there is no authority for the sentencing court to impose a lesser sentence than the Act provides. Where an individual is convicted of the offense of robbery and is found to have visibly possessed a firearm, he may only be lawfully sentenced to a term of imprisonment of not less than five years. Hence, pursuant to Section 9727, where an individual enters a plea of guilty but mentally ill to the same offense, the same sentencing mandate would apply. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    507 A.2d 1266
    COMMONWEALTH of Pennsylvania v. Wayne Paul BURKETT, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1986.
    Decided April 24, 1986.

      James H. Stratton, Jr., Ebensburg, for appellant.
    Ralph F. Kraft, Assistant District Attorney, Johnstown, for Com., appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order denying a Motion to Quash filed by the appellant, Wayne Paul Burkett. We quash.

The facts in this case begin with the appellant being charged with making a false statement under oath while testifying at the trial of Commonwealth v. John Verilla, No. 0576-1983 (C.P. Cambria).

A preliminary hearing was conducted and resulted in the appellant, following a district justice finding that the prosecution had presented a prima facie case, being bound over for court. In the interim, the appellant was re-committed to the Blair County Prison to serve the remaining sentence on an unrelated conviction.

On December 24, 1984, the appellant filed a pro se Motion to Quash contending that the prosecution had failed to establish that he had committed the offense set forth in the complaint — perjury. Wherefore, he sought a dismissal of the complaint and his discharge. In an addendum to the motion, it was argued that the prosecution engaged in misconduct by “tactically maneuever [sic] defendant’s answers” on cross-examination so they “could be construe[d] to be false[] for the purpose of charging him ... with perjury.” Also, the appellant alleged that he was placed “twice in jeopardy” by being held for trial in the face of insufficient evidence. On January 2, 1985, the motion was denied.

On January 7, 1985, the appellant filed a pro se notice with the Clerk of Courts of Cambria County that he was appealing the order. In this notice, the appellant acknowledged that his appeal was interlocutory, but he asserted that Rules 1701(a), 311(a)(7), (d)(ii) and 501 of the Pennsylvania Rules of Appellate Procedure, along with Sections 701 and 742 of the Judicial Code, 42 Pa.C.S.A., authorized the appeal as “a matter of right”. Additionally, he set down that Rules 1701(a) and 341 “stay[ed] any further action in th[e] matter” with his notice of appeal. Lastly, upon application filed with the court below, the appellant was permitted to proceed in forma pauperis.

By per curiam order issued May 1, 1985, this Court remanded for the disposition of the appellant’s motion for the appointment of counsel. Prior to the remand, the court below relieved initial (appointed) counsel of his obligation to represent the accused, and it directed appellant to file for representation with the public defender’s office.

During the pendency of the appeal, newly selected counsel filed an omnibus pre-trial motion, which included a: 1) Motion To Quash Information; 2) Motion For Polygraph Examination; 3) Motion To Transcribe Testimony (of the preliminary hearing); 4) Motion For Psychiatric Examination; and 5) Motion To Sever. A hearing was held on February 27, 1985, the outgrowth of which was the grant of all but Points 1, 2, 4 and 5. Of interest here are the remarks of counsel at the commencement of the hearing; to-wit:

Your Honor, I would wish to point out preliminarily under my duty as an officer of the Court that there was an order issued by Judge Abood on January 2, 1985, and an interlocutory appeal taken by the Defendant during the period of time in which he did not have Counsel or when Counsel was in the process of withdrawing but not actually withdrawing, on the issue of the motion to quash.

In support of its ruling on the Motion to Quash, the court below articulated its reasons, which, in essence, relied on Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980) to find no compelling need to grant the appellant relief. As opined by the court:

In short, there is nothing in the record to justify a finding of “exceptional circumstances” and the defendant has made no showing of same which would warrant immediate review by this court of the district justice’s finding of a prima facie case.

Thereafter, on July 8-9, 1985, the appellant was found guilty of perjury by the Hon. Eugene A. Creany. Post-verdict motions questioned the sufficiency of the evidence and sought an arrest of judgment “because the trial court was without jurisdiction to hear the matter.” This, counsel offered, was predicated upon the fact that Superior Court retained jurisdiction of the case with its remand of May 1.

No judgment of sentence appears to have been entered by the trial court, and, from our examination of the record and briefs of counsel, the order of January 2, 1985 is before us for consideration.

Counsel for the appellant frames at page two of his brief the following issues for our determination:

I Did the Court improperly refuse to grant the Defendant’s Motion To Quash?
II Did the Court of Common Pleas have authority to proceed with a non-jury trial following the entry of the Notice of Appeal?

In response to the first issue, we find, as did the court below, the decision of Commonwealth v. Hess, supra, to be controlling.

Hess dealt with the appealability of a district justice’s determination that a prima facie case had been established by the prosecution. After such a finding was made, the prosecution filed an information charging the defendant with perjury. Thereafter, he submitted various pre-trial motions, one of which was a petition to quash the information. When the petition was dismissed, and the Common Pleas Court refused to certify the matter for appeal, the appellant took it upon himself to file an appeal with this Court challenging the dismissal order. The response of the District Attorney was to contest the action in the form of a motion to quash on the basis that the order was interlocutory. This Court, in its prudence, certified the case to the Supreme Court. In holding that the order was not subject to immediate pre-trial review, the high Court stated:

Although it has been deemed appropriate to permit immediate review by the court of common pleas of the finding of a prima facie case by the district magistrate, a balancing of the further disruption of the trial process against the harm to the accused weighs in favor of barring immediate appellate review unless “exceptional circumstances” are present. See Commonwealth ex rel. Riggins v. Superintendent of Phila. Prisons, 438 Pa. 160, 263 A.2d 754 (1970); Commonwealth ex rel. Boatwright v. Hendrick, 436 Pa. 336, 260 A.2d 763 (1969); Commonwealth v. Lindsley, 241 Pa.Super. 522, 524, 366 A.2d 310 (1976). Thus, under prior case law it is firmly established that the denial of a habeas corpus claim, based upon the insufficiency of the evidence presented to the issuing authority, without a showing of exceptional circumstances (which have not been argued here), will not provide a basis for immediate appellate review.

Commonwealth v. Hess, supra, 489 Pa. at 589, 414 A.2d at 1048.

It is the appellant’s contention that the “exceptional circumstances” alluded to in Hess, as a caveat to the unappealability of a district justice’s prima facie determination, is satisfied by his allegation that “he was forced to undergo an injustice of being required to stand trial for a crime that has never been wholly established or proven at the Preliminary Hearing.” We interpret such a claim to be no more than a mere subterfuge for an assault on the sufficiency of the evidence, an assertion addressed in Hess as not coming within the ambit of the “exceptional circumstance” criterion. Thus, following the lead of our Supreme Court, especially in light of its recent reaffirmance of the rationale in Hess (see Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983)), we will quash the appellant’s appeal.

Intertwined with the appellant’s second issue is a scenario hereinbefore not confronted by an appellate court in this Commonwealth. It begins with the appellant perfecting an interlocutory appeal, followed, thereafter, by a remand for the performance of certain perfunctory matters. After compliance with the dictates of the remand, the court below proceeded to conduct a non-jury trial in which the appellant was found guilty.

The issue, simply stated, is whether the appellate court had retained jurisdiction, even after remand, so as to preclude the court below from engaging in any activity other than that delineated in the order.

Generally, in our judicial scheme of civil and criminal justice, a trial court can no longer proceed further in a matter “after an appeal is taken”. Pa.R.App.P. 1701(a). This precept has its roots in common law, as exemplified by the remarks in Gilbert v. Lebanon Valley Street Railway Co., 303 Pa. 213, 218, 154 A. 302, 304 (1931) that a court of first instance was without jurisdiction to proceed with a cause after the record had been removed to an appellate court. This rule still applies in the absence of a statute providing otherwise. See, e.g., Hodge v. Me-Bee Co., 429 Pa. 585, 590 n. 1, 240 A.2d 818, 821, n. 1 (1968); Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965); Sowers Estate, 383 Pa. 566, 573-574, 119 A.2d 60, 64 (1956); Harwood v. Bruhn, 313 Pa. 337, 341-342, 170 A. 144-145 (1934); Ewing v. Thompson, 43 Pa. 372, 376-377 (1862).

In Pennsylvania, Rule 1701(a) curtails the authority of a trial court upon the perfection of an appeal. Nonetheless, the restraint to be exercised is not without its exceptions. For example, as herein relevant, a trial court may:

(5) Take any action directed or authorized on application by the appellate court.
(6) Proceed further in any matter in which a nonap-pealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review of the order. Pa.R.App.P. 1701(b)(5) & (6).

It will be recalled that the appellant appealed the denial of his Motion to Quash, and, this, in turn, was docketed by the prothonotary of this Court at No. 130 Pittsburgh 1985. In response to another motion submitted to this Court on April 17, 1985, a per curiam order was entered that read:

AND NOW, to-wit, this 1st day of May, 1985, upon consideration of the Petition for Extension of Time, the above-captioned appeal is remanded to the Court of Common Pleas of Cambria County for the disposition of appellant’s motion for appointment of counsel. New counsel shall forthwith enter his appearance and a new briefing schedule shall be entered.

The assignment of counsel was effectuated on May 7, 1985, and was, thereafter, followed by the commencement of a trial which culminated in the appellant being adjudged guilty of penury. Post-verdict motions were filed challenging, inter alia, the competency of the court to act in the face of an appeal “pending” before Superior Court on the Motion to Quash. The trial court did not respond to this assertion, nor did it sentence the appellant. Nevertheless, the record reveals that the documents in the case were (again) transferred to Superior Court on October 16, 1985, and the case appears to have been assigned the original number and term given to the appellant’s initial appeal.

We are of the opinion that, under this Court’s remand order, the record was remitted for the purpose of allowing counsel, if and when one were ultimately appointed, to review the facts underlying his client’s Motion to Quash. Otherwise, counsel’s appointment, without the correlative ability to review the record, would have been meaningless. More importantly, however, we find that, since the interlocutory appeal came about following the effective date (September 15, 1983) of Rule 1701(b)(6), neither the appeal from the denial of the January 2, 1985 pre-trial order nor the remand directive dated May 1, 1985 impaired the ability (“jurisdiction”) of the court below to proceed with the appellant’s trial. See Commonwealth v. Hall, 327 Pa.Super. 390, 476 A.2d 7 (1984) and compare with Commonwealth v. Hollis, 304 Pa.Super. 1, 450 A.2d 70 (1982).

Our conclusion conforms with the strictures of Pa.R.App.P. 2591(a), which provides:

On remand of the record the court ... below shall proceed in accordance with the judgment or other order of the appellate court and, except as otherwise provided in such order, Rule 1701(a) (effect of appeals generally) shall no longer be applicable to the matter. (Emphasis added)

In compliance with Rule 1701(b)(5), this tribunal directed in its remand order that the court below was to respond to the appellant’s request for counsel, and that, in conformity with the statutorily created rules governing the argument of appellate cases (see Rules 1934, 2311 & 2312, Pa.R.App. P.), the Motion to Quash would be finally decided upon the issuance of a new briefing schedule necessitated by the remand. See Pa.R.App.P. 2313; see also Pa.R.App.P. 3714 (Commonwealth Court). Further, nowhere in the remand order did this Court preclude the court below from proceeding forward with any matter relating to the appellant’s case. In other words, the resolution of the appellant’s Motion to Quash in no way abrogated the jurisdiction of the court below to act to bring the accused to justice during the pendency of the appeal. See Commonwealth v. Hall, supra.

However, inasmuch as a person convicted of a crime does not have a right to appeal before judgment of sentence is entered, see Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954), we need not and will not review the sufficiency of the evidence to sustain the verdict.

Accordingly, having treated the only legitimate issues before us, we conclude that the appellant’s appeal from the January 2, 1985 order must be quashed.

Order quashed.

      . Even though the appellant incorrectly styled his application as a Motion to Quash, it will be treated as a Writ of Habeas Corpus. Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983).

      . Accord Commonwealth ex rel. Gordy v. Lyons, 434 Pa. 165, 252 A.2d 197 (1969); Commonwealth ex rel. Bittner v. Price, 428 Pa. 5, 235 A.2d 357 (1967); Commonwealth v. Byrd, 421 Pa. 513, 219 A.2d 293 (1966); Commonwealth ex rel. Fisher v. Stitzel, 418 Pa. 356, 211 A.2d 457 (1965); Commonwealth v. Lindsley, 241 Pa.Super. 522, 366 A.2d 310 (1976); Commonwealth ex rel. Nicholas v. Hendrick, 197 Pa.Super. 646, 180 A.2d 88 (1962).


author: WIEAND, Judge:

text:
    508 A.2d 298
    Charles W. HAWTHORNE, Sr., Administrator of the Estate of Richard Daniel Hawthorne, Deceased v. DRAVO CORPORATION, KEYSTONE DIVISION, Appellant and Borough of Industry. Charles W. HAWTHORNE, Sr., Administrator of the Estate of Richard Daniel Hawthorne, Deceased, Appellant v. DRAVO CORPORATION, KEYSTONE DIVISION and Borough of Industry.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed Feb. 21, 1986.
    Reargument Denied April 28, 1986.

      Oran W. Panner, Beaver, for appellant (at 42) and for appellee (at 69).
    John A. Miller, Beaver, for appellant (at 69) and for appellee (at 42).
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

During the early morning hours of November 11, 1974, Richard D. Hawthorne drowned when the car he was driving plunged into the Ohio River in an area then being dredged by the Dravo Corporation (Dravo). The administrator of Hawthorne’s estate commenced wrongful death and survival actions against Dravo. He alleged that Dravo, in dredging too close to the shoreline, had negligently created a drop-off into deep water without warning. Dravo caused the Borough of Industry to be joined as an additional defendant. A first trial resulted in the entry of a compulsory nonsuit which this Court, on appeal, reversed. See: Hawthorne v. Dravo Corp., 313 Pa.Super. 436, 460 A.2d 266 (1983). A second trial resulted in a jury verdict in favor of the decedent’s estate and against Dravo in the amount of one million dollars. After post-trial motions had been denied, the trial court molded the verdict by adding delay damages of $224,381.43, and interest in the amount of $40,855.78. Judgment was entered on the molded verdict. Both parties appealed. Dravo alleges various trial errors which we will consider seriatim. The estate argues that the trial court’s award of delay damages was inadequate.

Dravo contends initially that the verdict was against the weight of the evidence.

[T]he decision to either grant or deny a motion for new trial [on grounds that the verdict was against the weight of the evidence] is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion ____ Our Supreme Court has held that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970). A new trial should not be granted where the evidence is conflicting and the jury might have found for either party, nor where the trial judge would have reached a different conclusion on the same facts.

Myers v. Gold, 277 Pa.Super. 66, 69, 419 A.2d 663, 664 (1980). See: Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Brown v. McLean Trucking Co., 434 Pa. 427, 256 A.2d 606 (1969); Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505 (1951); Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984); Mattox v. City of Philadelphia, 308 Pa.Super. 111, 454 A.2d 46 (1982); Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).

In the instant case the evidence showed that on the evening of November 10, 1974, decedent, accompanied by his girlfriend, Betsy Wardle, and two other passengers, drove a borrowed vehicle around Beaver County and into West Virginia. At approximately midnight, decedent drove to an area on the north bank of the Ohio River known as Maude’s Landing in the Borough of Industry. Upon arriving, decedent parked the vehicle within six inches of the water’s edge, facing the river. The group remained there for a brief period before making ready to depart. As decedent attempted to shift the engine’s standard transmission into reverse, the vehicle drifted forward, entered the river and suddenly plunged into deep water. The three passengers were able to escape through a rear window of the automobile; however, decedent was unable to escape and drowned.

For many years prior to September, 1974, the area known as Maude’s Landing had been used by members of the public, including the decedent, to launch boats, wash cars, and for swimming, fishing and other recreational activities. Prior to Dravo’s dredging activities, the river bottom adjacent to Maude’s Landing sloped gradually from the shoreline toward the center of the river for a distance of between thirty and fifty feet. In late September, 1974, Dravo began its dredging activities in the vicinity of Maude’s Landing. Its operations had been authorized by two dredging permits, one having been issued by the United States Department of the Army Corps of Engineers and the other by the Pennsylvania Department of Environmental Resources. The dredging caused the creation of a steep drop-off into deep water at or near the river’s edge.

Dravo did not deny these facts. It argued, however, that its dredging operations had been conducted consistently with its permits and in agreement with the limitations and restrictions thereof. Dravo also introduced evidence that, prior to the accident, its employees had erected a cable across the area of Maude’s Landing which extended for almost the entire length of the cleared area at the shoreline. Attached to this cable, according to Dravo’s evidence, were three large signs warning “Danger, Deep Drop Off.” Hawthorne’s evidence was to the contrary. Betsy Wardle testified that she did not see any such cable or signs at Maude’s Landing on the night of the accident. In addition, Paul Walton, Jr., a former Dravo employee, testified that no warning signs had been erected until after decedent’s death. Indeed, neither cable nor warning signs were found in the area immediately following the accident.

Dravo’s evidence that the dredge boat and barges were parked between fifty and eighty feet offshore from Maude’s Landing and were fully lighted and visible from the shore was also contradicted by Hawthorne’s evidence. Betsy Wardle testified that she did not see either dredge or barges on the night of the accident because the lights on the dredge were not lit. William Tichy, a member of the Industry Volunteer Fire Department, who arrived at the scene after emergency crews had been called, testified that he did not observe that the dredge had been parked offshore until it was brought to his attention by another person.

Given the conflicting nature of the evidence, it cannot be said that the trial court palpably abused its discretion when it determined that the jury’s verdict was not contrary to the weight of the evidence so as to require a new trial. A jury could have found from the evidence that Dravo knew or should have known of the use which had been made of the shore area at Maude’s Landing and that Dravo was negligent in failing to give warning of the sharp drop-off which its dredging operations had created. In the absence of such warning, the jury could have further found that the decedent had not been guilty of contributory negligence in parking the vehicle close to the water’s edge and in allowing it to drift forward into the water for a short distance as he attempted to put the transmission into reverse. Even though the decedent may have known that Dravo was conducting dredging operations offshore, the jury was not required to find that he was aware of the invisible drop-off which had been created close to the shoreline. Thus, the jury’s verdict regarding the absence of contributory negligence was not shocking to the judicial conscience.

Dravo contends that it was error for the trial court to instruct the jury that there was a presumption that the decedent had been exercising due care for his own safety at the time of the accident. The existence of such a presumption is unquestionably a part of the common law of this Commonwealth. See: Groh v. Philadelphia Electric Co., 441 Pa. 345, 271 A.2d 265 (1970); Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963); Rowles v. Evanuik, 350 Pa. 64, 38 A.2d 255 (1944); Yandrich v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981). Dravo urges us to conclude, nevertheless, that the presumption has outlived its usefulness and should be abandoned.

The primary purpose of a court’s charge to the jury is to apprise the members of the jury, in an understandable manner, of the legal principles by which they must decide the case. The law is well settled that the trial court is not required to use any prescribed language in performing this function. Indeed, for a party “to be entitled to a new trial [on the basis of erroneous jury instructions], the instructions complained of must be fundamentally in error, and it must appear that the erroneous instructions might have been responsible for the verdict.” McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 342, 472 A.2d 1149, 1150 (1984) (en banc). A new trial is also appropriate where the instructions, although perhaps not erroneously stating the law, have misled or confused the jury. See: Takach v. B.M. Root Co., 279 Pa.Super. 167, 420 A.2d 1084 (1980); McEwan v. Yellow Cab Co., 182 Pa.Super. 219, 126 A.2d 816 (1956). The presumption of a decedent’s exercise of due care may not be the clearest method of apprising the jury that the party asserting the negligence of a decedent bears the burden of proving it and may indeed have outlived its usefulness. See: Yandrich v. Radic, supra, 291 Pa.Super. at 83, 435 A.2d at 230. Nevertheless, until it is abandoned by the Supreme Court, it cannot be said that a trial court commits error in instructing the jury regarding the effect of the presumption. Moreover, the instruction given by the court in this case was not such as to mislead or confuse the jury regarding the issue of the decedent’s contributory negligence. It does not require that a new trial be granted.

Dravo alleges numerous errors in the evidentiary rulings made by the trial court. The first of these pertains to a ruling which excluded evidence that prior to the accident the decedent had consumed alcohol and smoked marijuana.

Since Critzer v. Donovan, 289 Pa. 381, 137 A. 665 (1927), it has been the policy of the appellate courts of this Commonwealth that when recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is not admissible, being unduly prejudicial, unless it reasonably establishes intoxication.

Cusatis v. Reichert, 267 Pa.Super. 247, 249-250, 406 A.2d 787, 788-789 (1979) (en banc). See: Billow v. Farmers Trust Co., 438 Pa. 514, 266 A.2d 92 (1970); Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965); Cook v. Philadelphia Transportation Co., 414 Pa. 154, 199 A.2d 446 (1964); Harvey v. Doliner, 399 Pa. 356, 160 A.2d 562 (1960); Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Balla v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955); Ackerman v. Delcomico, 336 Pa.Super. 569, 486 A.2d 410 (1984); Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984); Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977); Selby v. Brown, 250 Pa.Super. 134, 378 A.2d 862 (1977); Sentz v. Dixon, 224 Pa.Super. 70, 302 A.2d 434 (1973); Kriner v. McDonald, 223 Pa.Super. 531, 302 A.2d 392 (1973).

In the instant case, the evidence which Dravo sought to introduce at trial involved not only the consumption of alcohol but also the ingestion of marijuana by the decedent. In determining whether the trial court erred, we accept the rule pertaining to the consumption of alcohol and apply it to the use of both alcohol and marijuana in the instant case. The same reasons for excluding evidence of alcohol consumption where intoxication is not proved apply with equal, if not added, force to situations involving the use of marijuana. Where there is evidence that a driver’s use of marijuana affected his or her ability to operate a motor vehicle safely, that evidence is relevant and admissible. However, where it cannot be established that the use of marijuana rendered a driver unfit tó drive or impaired his or her ability to drive safely, the use of marijuana is inadmissible to prove recklessness or carelessness. In these situations the prejudicial impact of the evidence clearly outweighs any probative value that it may have.

In the instant case, Dravo argues that its evidence of the decedent’s use of marijuana and consumption of alcohol prior to the accident would have reasonably established that he was unfit to drive. An examination of Dravo’s offer of proof, however, demonstrates that the trial court did not err in excluding the evidence;

Dravo offered to prove that decedent had shared two or three marijuana cigarettes with three other persons between 6:00 and 8:00 p.m. on the evening preceding the accident and that at or about 10:30 p.m., he had consumed two or three glasses of draft beer. It was not until 12:15 a.m. on the following morning that the vehicle plunged into the river. Dravo offered to show by an expert in toxicology, Dr. Charles L. Winek, that the combined effect of alcohol and marijuana reduces normal judgment with respect to time and distance, as well as one’s concern for safety. Significantly, however, the offer of proof also contained reference to a statement by Dr. Winek that the effect of the use of marijuana would continue only for three to four hours. Given this fact, which was a part of the offer of proof, the decedent’s use of marijuana more than four hours prior to the accident became irrelevant. This prior use of marijuana could not have affected the decedent’s ability to drive safely at the time of the accident, for its effects would have been dissipated by the passage of time. Therefore, the evidence was properly excluded by the trial court.

Evidence of the decedent’s consumption of several glasses of beer at or about 10:30 p.m. was also excluded on the grounds that it was irrelevant. That the decedent consumed two or three glasses of draft beer and had a blood alcohol level of .057% was unquestionably insufficient to prove intoxication. See: 75 Pa.C.S. § 1547(d)(2) (a blood alcohol level in excess of .05% but less than .10% does not give rise to any presumption that the person tested was under the influence of alcohol). The trial court did not err in excluding this evidence.

Dravo next contends that it was error for the trial court to refuse to allow a former Dravo employee, Fred Seiler, to explain to the jury the meaning of the following language contained in the dredging permit issued to Dravo by the Pennsylvania Department of Environmental Resources.

This permit is only valid for channel dredging no closer than the depth of dredging, but no closer than 25 feet from the channel shorelines or island shorelines at normal pool elevations.

(N.T. 5/21/84 at 363). Hawthorne had read this paragraph into evidence as part of his case in chief and had argued that by altering the river bottom within a few feet of the riverbank, Dravo had violated this provision of its permit. Dravo wished to show by Seiler’s testimony that the limitation in its permit meant only that the ladder which did the digging could not be located closer than twenty-five feet from the shore. Dravo contended that this provision of the permit did not mean that the river bottom could not be disturbed within twenty-five feet of the shoreline. It must be conceded, of course, that the offered testimony was relevant. The issue, however, is whether Seiler was qualified to testify concerning the meaning of this provision in the permit.

It is a basic tenet of the law of evidence that one who intends to testify as “to his inference or opinion in matters requiring special training or experience to understand, must be qualified as an expert in the field.” McCormick on Evidence § 69, at 167 (3d ed. 1984). The decision regarding whether a particular witness qualifies as an expert rests in the sound discretion of the trial judge, and will not be reversed in the absence of a clear abuse of that discretion. See: Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa.Super. 172, 177, 480 A.2d 299, 302 (1984); Tyus v. Resta, 328 Pa.Super. 11, 26, 476 A.2d 427, 435 (1984); Pratt v. Stein, 298 Pa.Super. 92, 152, 444 A.2d 674, 706 (1982).

An expert witness has been defined as a person who possesses knowledge not within the ordinary reach and who, because of this knowledge is specially qualified to speak upon a particular subject____ [A] witness who, by his own testimony, shows that he has no experience or special knowledge of the matter at issue would be incompetent to testify as an expert.

Erschen v. Pennsylvania Independent Oil Co., 259 Pa.Super. 474, 477-478, 393 A.2d 924, 926 (1978). See: Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 41, 233 A.2d 896, 902 (1967); Reed v. Hutchinson, 331 Pa.Super. 404, 410, 480 A.2d 1096, 1099 (1984); Tyus v. Resta, supra, 328 Pa.Super. at 26, 476 A.2d at 435; Pratt v. Stein, supra, 298 Pa.Super. at 152-153, 444 A.2d at 706.

The permit containing the restriction in the instant case had been issued in 1974. Seiler testified that from approximately 1968 to 1972, he had been directly responsible for making Dravo’s applications for permits to DER and the Army Corps of Engineers. In 1972, however, his duties had been altered, and thereafter he was no longer directly involved in Dravo’s river dredging. Instead, he was involved in obtaining permits for the construction of a sand and gravel pit in the Georgetown area. He conceded that the language in issue had not appeared in dredging permits with which he had had experience. He was familiar only with language in earlier permits which had provided that dredging operations should not affect the riverbank above the waterline. The trial court concluded that Seiler did not have special knowledge or expertise sufficient to allow him to testify as an expert regarding the twenty-five foot limitation in the Dravo permit in question. Under the circumstances disclosed to the trial court, we cannot say that its ruling was erroneous or constituted an abuse of discretion.

We agree with Dravo that the trial court was incorrect when it permitted an averment in Dravo’s complaint against the additional defendant to be used to impeach a non-party witness who had had no responsibility for the averments in the complaint. Clarence Nessleroad, the dredge boat captain, testified that his workers had erected a cable across the bank at Maude’s Landing and had hung signs thereon warning of a steep drop-off. On cross-examination, the trial court permitted plaintiff’s counsel to read into evidence a portion of a pleading in which Dravo had averred that the shoreline at Maude’s Landing was unprotected by any guardrails or other barriers. Nessleroad was not a party to the action, and the use of the pleading to impeach his testimony was improper. The error, however, was harmless. Even if the trial court had refused to allow Hawthorne to use the pleading to impeach Nessleroad’s testimony on cross-examination, this portion of the pleading was admissible as an admission by Dravo.

Similarly, it was harmless to receive into evidence a portion of Nessleroad’s deposition as substantive evidence when he was present in court and available to testify. Nessleroad later testified in person as a Dravo witness and could have been asked to explain or even repudiate any factual testimony in his depositions which Dravo found damaging. This ruling, even if erroneous, did not require that a new trial be granted.

Dravo next contends that the trial court erred when it refused to permit Larry Joy, a former Dravo employee, to explain on redirect examination his reason for testifying voluntarily. On direct examination, Dravo’s attorney had asked Joy if he was pursuing a Jones Act claim against Dravo. Joy responded affirmatively. On cross-examination, the following colloquy occurred:

Q. Now, you say you have a Jones Act claim against Dravo?
A. Yes, sir.
Q. That case isn’t settled yet, is it?
A. No....
Q. It is an open claim right now, isn’t it?
A. Yes, sir.

(N.T. 5/21/84 at 777-778). On redirect examination, Dravo attempted to elicit from Joy his reasons for volunteering to testify in the instant case. When an objection was raised, a sidebar conference was held, at which Dravo explained that Joy would testify that he had volunteered to testify only after one of Hawthorne’s attorneys had asked him if he would testify that Dravo’s barge and dredge had been turned straight into the shore at Maude’s Landing. Joy had responded to Hawthorne’s attorney, according to the offer of proof, that he would not testify to that because it was not true. Joy volunteered to testify for Dravo several weeks later, he would say, because “he wanted to make sure that everyone knew the truth.” (N.T. 5/21/84 at 779). The trial court ruled that this testimony was beyond the scope of cross-examination and disallowed it.

The scope of redirect examination is a matter which is vested in the discretion of the trial court. In general, however, “the practice is uniform that [a] party’s examination is normally limited to answering any new matter drawn out in the next previous examination of the adversary.” McCormick on Evidence § 32, at 69 (3d ed. 1984). In the instant case, the fact that Joy had a Jones Act claim against Dravo was not brought out for the first time on cross-examination. Both the fact that the claim had been in existence and any implication that his testimony may have been motivated by the status of that claim were elicited from the witness by Dravo’s own attorney on direct examination. Hawthorne’s reiteration of the existence of Joy’s claim against Dravo on cross-examination, therefore, was not a “new” matter. The testimony, moreover, would have raised an issue that was collateral to the principal issue in the case. It cannot be said, therefore, that the trial court abused its discretion when it disallowed Joy’s testimony pertaining to a pre-trial conversation with one of the attorneys for the plaintiff.

Dravo also asserts that the trial court erred when it permitted Gerald Weakland, a witness called by the plaintiff, to testify on redirect examination to a conversation which he had had with Phillip Johnson, a Dravo witness. Weakland was a former employee of John Johnson, the owner of a towboat which had been used to service the Dravo dredge at Maude’s Landing at or about the time of decedent’s accident. On direct examination Weakland testified, inter alia, that Dravo had known that it was dredging within a few feet of the shore at Maude’s Landing, and had been warned that someone might be injured as a consequence thereof. On cross-examination, Dravo’s counsel inquired whether Phillip Johnson, another towboat owner who had employed Weakland, had fired Weakland for stealing. Weakland denied it. On redirect examination the trial court permitted Weakland to testify that at or about the time he ceased working for Johnson, he told Johnson that he, Weak-land, had been named as a witness in this case. According to Weakland, Johnson told him to say that it was too long ago and that he could not remember anything.

Dravo argues that this testimony was inadmissible as hearsay. However, Johnson’s statement clearly was not offered to prove the facts asserted therein, i.e., that the incident occurred so long ago that Weakland could not remember anything about it. It was instead offered to prove that Johnson had made the statement. This testimony was not hearsay. Whether it was relevant has not been argued, and with respect thereto we express no opinion.

Finally, Dravo argues that the amount of the verdict was excessive and not supported by the evidence. “The granting or refusing of a motion for a new trial because of excessiveness is peculiarly within the discretion of a trial court and will not be interfered with by this court unless the record discloses a clear abuse of discretion.” Connolly v. Philadelphia Transportation Co., 420 Pa. 280, 287, 216 A.2d 60, 64 (1966). See: Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971); Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977). In the absence of a showing that the amount of damages was influenced by caprice, prejudice, partiality, corruption or some other improper influence, “we will only consider the verdict excessive if it shocks our sense of justice.” Walasavage v. Marinelli, 334 Pa.Super. 396, 409-410, 483 A.2d 509, 516 (1984); Pratt v. Stein, 298 Pa.Super. 92, 139, 444 A.2d 674, 699 (1982). See: Albert v. Alter, supra.

Generally under Pennsylvania law, damages need not be proved with mathematical certainty, but only with reasonable certainty, and evidence of damages may consist of probabilities and inferences____ Where the amount of damage can be fairly estimated from the evidence, the recovery will be sustained even though such amount cannot be determined with entire accuracy---It is only required that the proof afford a reasonable basis from which the fact-finder can calculate the plaintiffs loss.

Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 119, 464 A.2d 1243, 1257-1258 (1983).

In the instant case, the evidence showed that at the time of his death the decedent had been employed as a laborer by Salvator Ruggeri, who operated a plumbing, heating and air conditioning business. Ruggeri testified that decedent had worked for him approximately three months before the accident occurred. Decedent’s duties were those of a helper to journeyman plumbers. He had been paid a minimum wage of $3.00 per hour. Based upon this information, Dr. Reuben E. Slesinger, a professor of economics at the University of Pittsburgh, calculated the economic loss during the decedent’s life expectancy to be $497,875.00.

Ruggeri also testified that decedent had been interested in advancing in the plumbing business and had inquired on several occasions about joining the Plumbers’ and Steam Fitters’ Union. Ruggeri expressed the opinion that decedent had possessed an aptitude which would have enabled him to advance in the plumbing business. If he had become a journeyman plumber, Ruggeri said, the decedent would have earned an hourly wage of approximately $21.00. Dr. Slesinger testified that if decedent had become a journeyman plumber earning $21.00 per hour, the total loss to the estate would have been approximately one million dollars. In view of this evidence, it cannot be said that the jury’s verdict was either unsupported by the evidence or excessive.

Pa.R.C.P. 238(a)(1) provides as follows:

[I]n an action seeking monetary relief for bodily injury, death, or property damage, of any combination thereof, the court ... shall ... add to the amount of compensatory damages ..., damages for delay at ten (10) percent per annum, not compounded, which shall become part of the ... verdict____

Where, as here, the action was pending on the date that Rule 238 became effective, delay damages must be calculated from October 15, 1979, six months after the effective date of the Rule. See: Pa.R.C.P. 238(f).

In computing delay damages in the instant case, the trial court excluded the period between December 5, 1980, the date on which the trial court entered a compulsory nonsuit in Dravo’s favor, and April 22, 1983, the date on which this Court remanded the case for retrial. The decedent’s administrator argues that this was error. We disagree.

In Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., 717 F.2d 52 (3d Cir.1983), the Court of Appeals for the Third Circuit was faced with a similar issue and concluded that Rule 238 should not be applied to the period of time from the date the district court directed a verdict in defendant’s favor to the date the Court of Appeals ordered a new trial. The Court examined the purposes of Rule 238 and determined that the primary objective of the Rule is to encourage pre-trial settlements, thereby lessening congestion in the courts. Id. at 56. See: Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59-60, 436 A.2d 147, 151 (1981); Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986). In light of this purpose, the court reasoned:

So long as the ultimate outcome of the case is reasonably in doubt the rule operates as an incentive for the defendant to consider seriously settlement as an alternative to a stalwart defense. Once the defendant obtains a favorable final judgment from the trial court, however, he has a reasonable basis to believe that the ultimate outcome is considerably less problematic. The defendant will quite rightly refrain from initiating any settlement activity and the burden shifts to the plaintiff to perfect an appeal and to persuade the appellate court that reversible error occurred. At this point ... the operation of Rule 238 no longer serves its purpose and should not be applied.

Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., supra at 56-57.

We agree with this view. Dravo was entitled to rely on the validity of the compulsory nonsuit entered by the trial court. Only after it had been vacated and the case remanded for trial did the defense return to its original status of uncertainty. At that time the purpose of Rule 238 became once again applicable. The trial court did not err when it excluded from its calculations the period between the entry of the compulsory nonsuit in Dravo’s favor and the vacating of the judgment of nonsuit by the appellate court.

Judgment affirmed.

      . A verdict was directed in favor of the Borough of Industry and is not challenged on appeal.

      . In its brief, Dravo implies that decedent also consumed some malt liquor on the night of the accident. This, however, is not supported by Dravo’s offer of proof in which Dravo stated that Betsy Wardle would testify that only the two young ladies in the car consumed the quart of malt liquor which the decedent had purchased.

      . The trial court calculated the delay damages as follows:

        1. For the period of October 15, 1979 to December 5, 1980, at the rate of ten (10%) percent per year $114,245.49
      2. For the period of April 22, 1983 to May 29,1984, at the rate of ten (10%) percent per year $110,135.94
      $224,381.43


text:
    508 A.2d 308
    Harold D. LYNN and Evelyn Lynn, his wife v. John A. CEPURNEEK, Philip Packard and F.B. Washburn Candy Corporation, a Corp. Appeal of F.B. WASHBURN CANDY CORPORATION, a Corp.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1985.
    Filed March 10, 1986.
    Reargument Denied May 1, 1986.

      Nancy Winschel, Pittsburgh, for appellant.
    Bernard S. Shire, Monessen, for Lynn, appellees.
    Louis C. Long, Pittsburgh, for Cepurneek, appellees.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

In this appeal we are asked to review the trial court’s jury instructions as they pertain to the possible existence of a master and servant relationship between a candy manufacturer and the driver of a truck provided by a third party, pursuant to contract, to haul the manufacturer’s products.

On August 15, 1979, a truck owned by Philip A. Packard, Inc., loaded with candy containers, and operated by John Cepurneek, left the travelled portion of Interstate Route 70 in Westmoreland County and collided with a pickup truck parked along the berm. As a result of the ensuing, forced movement of the pickup truck, Harold Lynn was pinned and injured. The jury found that Cepurneek had been guilty of negligence and returned a verdict against Cepurneek, Packard and the candy manufacturer, F.B. Washburn Candy Corporation (Washburn).

A principal issue at the time of trial was whether a master and servant relationship existed between Washburn and Cepurneek, the driver. Packard, the owner of the truck, contended that Cepurneek, whom Packard had supplied to drive the truck, was employed by Washburn and subject to Washburn’s right of control. Cepurneek testified that on the trip in question he was hauling candy containers which he had picked up in Piqua, Ohio and which he was to deliver to Washburn at its plant in Brockton, Massachusetts. His instructions regarding the source of the cargo and his destination, he said, had been received from Wash-burn’s personnel. Washburn’s evidence, on the other hand, was that it had had no right to control the operation of the tractor-trailer unit and had merely paid an agreed sum to Packard to have the candy containers delivered.

The evidence revealed also that the driver of the truck, Cepurneek, had been selected and paid by Packard; that orders for the return trip had been relayed to Cepurneek by Packard; that Packard had obtained insurance for the trip; that the truck had been kept at Packard’s place of business between shipments of Washburn’s merchandise; and that after the collision which spawned this lawsuit, it had been Packard who delivered Washburn’s containers by renting another truck and hiring a new driver. In addition, it was shown that Washburn had not been authorized to fire Cepurneek, had no input regarding the fuel Cepurneek used in the truck or the route that he was to take, and had not discussed with Packard how Cepurneek was to be reimbursed for his expenses.

At the time of the accident, cardboard signs were taped to the sides of the tractor stating: “Leased to F.B. Washburn Candy Company.” These signs had been handprinted by Packard’s daughter and had been taped to the sides of the tractor by Packard. Washburn contended that this had been done without its knowledge or consent. There was also evidence, which was not disputed, that neither Packard nor Cepurneek had been licensed to operate in interstate commerce. However, the testimony of Washburn’s vice-president, Robert Gilson, was that he had been told by Packard before agreeing to have Packard haul the containers, that he, Packard, had an Interstate Commerce Commission license to carry cargo interstate.

The jury instructions challenged by Washburn on appeal include (1) an instruction that the presence of Washburn’s name on the doors of the tractor shifted to Washburn the burden of proving that a master and servant relationship did not exist between Washburn and the driver of Packard’s truck; and (2) an instruction that the jury was required to find a relationship between Washburn and the driver which was consistent with regulations of the Interstate Commerce Commission. We conclude that the trial court’s jury instructions contained error.

“Where the evidence produced by plaintiff, if believed, is sufficient to prove that he was injured by the negligence of one in charge of a business automobile, bearing the trade[ ]name of defendant, displayed thereon in such a manner as trade or business names are usually placed on vehicles used for trade or business purposes, these facts are sufficient (1) to raise the presumption that the car in question was owned by defendant and was being used by the person in charge thereof for defendant’s business purposes; and (2) when such presumptions so arise, they entitle plaintiff to have his case submitted to the jury.” Capozi v. Hearst Publishing Co., 371 Pa. 503, 511, 92 A.2d 177, 181 (1952), quoting Hartig v. American Ice Co., 290 Pa. 21, 30-31, 137 A. 867, 870 (1927). See also: Sefton v. Valley Dairy Co., 345 Pa. 324, 326, 28 A.2d 313, 314 (1942). This presumption serves at least two purposes: (1) it corrects an imbalance resulting from one party’s access to the proof; and (2) proof that defendant’s name appears on a commercial vehicle renders it probable that the driver is a servant of the defendant-owner or lessee; and, therefore, it is both sensible and time saving to assume this fact. See: McCormick on Evidence § 343 (3d ed. 1984).

Where the defendant offers evidence which, if believed, tends to rebut the presumed fact, how should the trial court instruct the jury regarding the effect of the presumption? “The problem of the effect of a presumption when met by proof rebutting the presumed fact has literally plagued the courts and legal scholars.” McCormick on Evidence § 344 (3d ed. 1984).

The most widely followed theory of presumptions in American law has been that they are “like bats of the law flitting in the twilight, but disappearing in the sunshine of actual facts.” Put less poetically, under what has become known as the Thayer or “bursting bubble” theory, the only effect of a presumption is to shift the burden of producing evidence with regard to the presumed fact. If that evidence is produced by the adversary, the presumption is spent and disappears. In practical terms, the theory means that, although a presumption is available to permit the party relying upon it to survive a motion for directed verdict at the close of his own case, it has no other value in the trial. The view is derived from Thayer[] sanctioned by Wigmore[] adopted in the Model Code of Evidence[] and seemingly been made a part of the Federal Rules of Evidence[] It has been adopted, at least verbally, in countless modern decisions.
The theory is simple to state, and if religiously followed, not at all difficult to apply. The trial judge need only determine that the evidence introduced in rebuttal is sufficient to support a finding contrary to the presumed fact. If that determination is made, certainly there is no need to instruct the jury with regard to the presumption. The opponent of the presumption may still not be entitled to a directed verdict, but if his motion is denied, the ruling will have nothing to do with the existence of a presumption. As has been discussed, presumptions are frequently created in instances in which the basic facts raise a natural inference of the presumed fact. This natural inference may be sufficient to take the case to the jury, despite the existence of contrary evidence and despite the resultant destruction of the presumption.

McCormick on Evidence § 344 (3d ed. 1984) (emphasis added) (footnotes partially omitted).

This is the law in Pennsylvania. A presumption is not evidence and has no weight as such. Watkins v. Prudential Insurance Co., 315 Pa. 497, 503, 173 A. 644, 649, 95 A.L.R. 869 (1934). When evidence is introduced which rebuts the fact presumed, the presumption disappears, having served its function of assigning the initial burden of coming forward with evidence. Waters v. New Amsterdam Casualty Co., 393 Pa. 247, 252, 144 A.2d 354, 356 (1958). See also: 14 P.L.E. Evidence § 22 (1959); Annot., 5 A.L.R.3d 19, 39 (1966). After the presumption passes from the picture, only the facts or actual evidence from which the presumption arose remain, free from any artificial effect, to be considered along with the other evidence. District of Columbia’s Appeal, 343 Pa. 65, 75, 21 A.2d 883, 888-889 (1941). Because “presumptions are frequently created in instances in which the basic facts raise a natural inference of the presumed fact,” the jury is entitled to consider such facts. McCormick on Evidence § 344 (3d ed. 1984). However, it is “a fallacy to attribute ... an artificial probative force to a presumption, increasing for the jury the weight of the facts, even when the opponent has come forward with some evidence to the contrary.” Waugh v. Commonwealth, 394 Pa. 166, 174, 146 A.2d 297, 302 (1958) (emphasis in original). It must necessarily follow that it is improper to instruct a jury that a presumption has the effect of shifting the burden of persuasion. Waters v. New Amsterdam Casualty Co., supra.

The burden of proving the existence of a master and servant relationship in the instant case remained with the plaintiff, and it was error to instruct the jury that Wash-burn had the burden of proving the non-existence of a master and servant relationship. “Since the presumption is no more than a procedural technique designed for trial convenience to facilitate the production of proof by requiring the party with easier means of access thereto to come forward with evidence, its consequence may be stated as follows: If the defendant fails to introduce evidence negating agency, then the issue is decided in favor of the plaintiff as a matter of legal ruling. If the defendant does offer credible evidence to the contrary the presumption disappears as a rule of law and has no further effect upon the outcome of the case.” Waters v. New Amsterdam Casualty Co., supra, 393 Pa. at 251-252, 144 A.2d at 356.

In the instant case, the trial court did not allow the presumption to disappear as a rule of law. The court instructed the jurors that “if you believe there was a sign on the tractor trailer at the time of the accident that said ‘leased to F.B. Washburn Candy Corporation’ then you must presume that defendant Cepurneek was acting as defendant Washburn’s servant at the time of the accident.” The court then proceeded to go even further. “[T]he burden of proof,” the court said, “is on the defendant Washburn that defendant Cepurneek was not acting as its servant at the time of the accident.”

Plaintiff-appellees concede that the trial court’s instruction regarding the shifting of the burden of proof was “unfortunate” but argue that other portions of the charge correctly recited the effect of the presumption. We are unable to agree that the prejudice was cured. Indeed, a review of the court’s jury instructions in their entirety discloses confusion which would have been avoided if the trial court had refrained from referring to “presumptions” in its effort to explain the relationship between the driver and the shipper. We are constrained to conclude, therefore, that it was prejudicial error for the trial court to instruct the jury that the presence of Washburn’s name on the sides of the truck caused the burden of persuasion to shift to Washburn to show that a master and servant relationship had not existed.

With respect to the nature of the relationship between Cepurneek and Washburn, the court instructed the jury further as follows:

“If a manufacturer wishes to have his goods shipped interstate, he can do it in either of two ways, legally. First, he can use an independent motor carrier who possesses an I.C.C. franchise to carry goods for him. Second, he can ship the goods himself without an I.C.C. franchise by using his own truck and driver.
“In the present case, neither defendant Cepurneek (the driver), nor defendant Packard (the owner), possessed an I.C.C. franchise____
“... if you find that defendant Cepurneek was not acting as defendant Washburn’s servant at the time of this accident, then the parties were acting illegally. In considering this fact you must follow this legal principle. If specified conduct, in one view, may be construed to be lawful, and in another, to be unlawful, the lawful construction shall be adopted.” (emphasis added).

There can be no quarrel with the proposition that the jury was entitled to weigh the I.C.C. regulations in determining the identity of Cepurneek’s employer. However, it was incorrect, in view of the evidence in this case, to tell the jury that it must adopt the construction which was lawful and consistent with I.C.C. regulations. This, in effect, was a mandatory instruction to find that a master and servant relationship had existed between Cepurneek and Washburn. It nullified the other relevant considerations which the court had discussed with the jury during its charge and which the jury should have considered in arriving at its verdict.

In support of its instruction, the trial court cited Kimble v. Wilson, 352 Pa. 275, 42 A.2d 526 (1945). In Kimble, the trial court had entered a compulsory nonsuit in favor of several defendants and had refused to remove the nonsuit on motion. The owner of the truck, being in the business of renting trucks, had provided both truck and driver to haul steel. The driver had been instructed by a laborer employed by the steel company to take a load of steel to a customer in Chester. While on the way to Chester, a collision had occurred because of the negligence of the truck driver, with resulting injuries to Sara Kimble, the plaintiff-appellant. The steel company contended at trial that it had entered an independent contract with its laborer, who had been engaged in conducting his own trucking business, to transport steel to Chester and that he, in turn, had contracted independently with the owner of the truck to provide a truck and driver to haul the steel. The Supreme Court reversed the nonsuit, which the trial court had entered for the steel company, and remanded for a new trial. It is in light of these facts and the Supreme Court’s ruling that the language in the opinion must be considered.

The extracurricular trucking business conducted by the employee of the steel company was very limited. His Public Utility certificate did not authorize him to go to Chester. Thus, it would have been illegal for the employee, acting as an independent contractor, to haul the company’s steel to that destination. Presumably, the Court said, the steel company knew of this limitation on the employee’s trucking license. Therefore, the Court said, it would adopt a construction of the facts which rendered the employer’s arrangement lawful, i.e., that the driver was not employed by an independent contractor, but by the steel company. From this construction of the facts, the Court concluded, the jury would have been justified in finding that the tractor-trailer and driver, which had been obtained by the employee on behalf of the steel company, were subject to the right of control by the company and that, therefore, a master and servant relationship had existed between the steel company and the driver of the truck. Id., 352 Pa. at 285, 42 A.2d at 530. Because, under these facts, the steel company would have been liable for the negligence of the driver, the Court held that the nonsuit was error. The Court in Kimble, however, did not then consider the manner in which a jury should be instructed on the master and servant issue. Consequently, Kimble does not support the jury instruction given in the instant case.

In Kissell v. Motor Age Transit Lines, Inc., 357 Pa. 204, 53 A.2d 593 (1947), the Supreme Court did seemingly approve a jury instruction that if specific conduct, in one view, may be construed to be lawful, and in another, to be unlawful, the lawful construction should be adopted. Id., 357 Pa. at 208, 53 A.2d at 595. However, the holding in Kissell was expressly based upon the Court’s prior decision in Rau v. Wilkes-Barre & Eastern R.R. Co., 311 Pa. 510, 167 A. 230 (1933), which does not support binding instructions in favor of a relationship consistent with administrative regulations when other facts show that such a construction was not intended.

In Rau, the plaintiff’s decedent had been killed when struck by the boom of a crane owned by the appellant-railroad company, but which at the time of the accident was being used by Sordoni Construction Co. (Sordoni) to unload limestone from railroad freight cars at Sordoni’s construction site. The jury returned a verdict for the plaintiff and against the railroad company, finding that the railroad, rather than Sordoni, had been responsible for the negligent operation of the crane. The railroad company appealed, arguing that the trial court had erred by denying both a request for binding instructions and a motion for judgment n.o.v. The sole issue on appeal was whether the railroad company or Sordoni had been responsible for unloading the freight cars. Evidence produced at trial indicated that it would have been illegal, under federal law, for the railroad to unload Sordoni’s limestone. Sordoni offered contradictory testimony from one of its officers. On one occasion the witness testified that he had been informed by the railroad’s agent that the railroad “had the crane and could unload” the cargo; on another occasion he said that he had been informed that the railroad company could “arrange to give [Sordoni] a crane” to unload the freight cars. Regarding this conflicting evidence, the Court stated:

[it] must [ ] be considered in light of the presumption that neither [the railroad nor Sordoni] intended to commit a crime ...; and, if [the evidence] will reasonably bear that interpretation,[J the law requires that it must be so regarded. The presumption that they intended to act lawfully and, in fact, did so, may be rebutted, of course, by evidence that is clear; but it is well settled that if conduct and words, said to be ambiguous, are susceptible of a lawful interpretation and also of one that is unlawful, the lawful interpretation must be accepted and applied.

Rau v. Wilkes-Barre & Eastern R.R. Co., supra, 311 Pa. at 513-514, 167 A. at 232 (citations omitted) (emphasis added). The Court concluded that in light of the prohibitory federal law, and other evidence produced in the case which demonstrated that Sordoni’s employees were actively involved in unloading the limestone, the contradictory testimony of Sordoni’s officer was “insufficient to support the inference that Sordoni and [the railroad company] intended to, and did, commit a crime by agreeing” that the railroad would unload the cargo. Id., 311 Pa. at 515, 167 A. at 232.

As Rau denotes, a presumption that parties intended to act in conformity with the law is rebuttable, not conclusive. See also: Constructors’ Association of Western Pennsylvania v. Furman, 165 Pa.Super. 248, 252, 67 A.2d 590, 592 (1949); Culhane’s Estate, 133 Pa.Super. 339, 353, 2 A.2d 567, 574 (1938), aff'd, 334 Pa. 124, 5 A.2d 377 (1939); 29 Am.Jur.2d Evidence § 168 (1967); 31A C.J.S. Evidence § 134 (1964). It is, in reality, a mere inference which can be rebutted by evidence which demonstrates that the parties intended to conduct the activity in a manner not sanctioned by specific regulation or rule of law. Whether the inference has been overcome by evidence is for the jury to determine. Where there is conflicting evidence, it is error for the trial court to instruct the jurors that they must adopt one construction of the facts rather than another.

In the instant case, there was substantial, unambiguous evidence which tended to rebut the presumption that the parties had intended a relationship measured by the I.C.C. regulations. As we have already observed, Cepurneek was paid by Packard, who kept, maintained and purchased insurance coverage for the vehicle; and only Packard had the right to hire and fire the driver of the truck. The fact that Packard, after the accident, rented another truck and hired a new driver to deliver Washburn’s containers was further evidence that Packard, rather than Wash-burn, intended to take responsibility for the shipment. Most significantly for our present purposes, there was testimony that Packard had told Washburn that he had the necessary I.C.C. rights and that Washburn had no reason to believe otherwise. This testimony, if believed, would tend to negative any inference that Washburn intended to create a master and servant relationship in order to effect compliance with the I.C.C. regulations. Under these circumstances, to give what, in effect, was a binding instruction was error.

“Where, as here, it is not entirely clear who was the controlling master ... and different inferences in that regard can fairly be drawn from the evidence, it is for the jury, not the court, to determine agency____ The test is always whether, in the particular service for which the employee was borrowed, he continued [to be] liable to the direction and control of his general employer or became subject to the control of the party to whom he was lent or hired, not merely with regard to the result of the work but as to the way in which it should be performed.” Kimble v. Wilson, supra, 352 Pa. at 286-287, 42 A.2d at 531, quoting Dunmire v. Fitzgerald, 349 Pa. 511, 516, 37 A.2d 596, 599 (1944) (citations omitted). See also: Siidekum v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 45 A.2d 59 (1946).

The issues of negligence and the amount of damages sustained have been fairly litigated, and no errors have been alleged with respect thereto. Under these circumstances, the only issue to be determined upon a retrial is whether a master and servant relationship existed between Washburn and Cepurneek.

The judgment against the appellant, F.B. Washburn Candy Corporation, is reversed, and the case is remanded for a new trial limited to the issue of whether John A. Cepurneek was the servant of F.B. Washburn Candy Corporation at the time of the accident causing injury to Harold D. Lynn. Jurisdiction is not retained.

      . This corporation was wholly owned by Philip A. Packard, who was the corporation’s chief operating officer. Packard conducted all of the corporation’s business during the events which gave rise to the instant litigation. He was named a party defendant in this action, but the corporation was not joined.

      . Thayer, Preliminary Treatise on Evidence, Ch. 8, at 314, 336 (1898).

      . 9 Wigmore, Evidence § 2491(2) (Chadbourn rev. 1981).

      . Model Code of Evidence Rule 704(2).

      . Fed.R.Evid. 301.

      . The parties have not argued and we do not decide whether the effect of the presumption is altered where the owner of a commercial vehicle has taped to the vehicle a temporary card containing the name of the lessee without the knowledge or consent of the lessee. But see: Lindenmuth v. Steffy, 173 Pa.Super. 509, 98 A.2d 242 (1953).

      . Earlier in its charge, the trial court had instructed the jury regarding a contrary presumption as follows:
      “Where one is engaged in the business of renting out trucks, automobiles, cranes, or any other machine, and furnishes a driver or operator as part of the hiring, there is a factual presumption that the operator remains in the employ of his original master, and, unless that presumption is overcome by evidence that the borrower[-]employer in fact assumes control of the employee’s manner of performing the work, the servant remains in the service of his original employer.”
      This presumption, as applied to the facts of the instant case, was in contradiction of the presumption arising from the display of Wash-burn’s corporate name on Packard’s truck. The former required the jury to infer that Cepurneek had been Packard’s servant, the latter that he had been the servant of Washburn. Where presumptions conflict, they should be treated as if they have disappeared, and the facts upon which they are based should be “weighed as circumstances with all the other facts that may be relevant, giving no effect to the presumptions.” McCormick on Evidence § 344 (3d ed. 1984) citing Thayer, Preliminary Treatise on Evidence 346 (1898). Accord: 9 Wigmore, Evidence § 2493 (Chadbourn rev. 1981); Model Code of Evidence Rules 701(3), 704(2). Thus, unless the court determines that one of the conflicting presumptions has been rebutted as a matter of law, neither presumption should be alluded to in the court’s charge. It was improvident, therefore, for the trial court in this case to instruct the jury on conflicting presumptions. See: Smith v. Clark, 411 Pa. 142, 147, 190 A.2d 441, 443 (1963); Randolph v. Campbell, 360 Pa. 453, 458, 62 A.2d 60, 63 (1948); Grove v. Equitable Life Assurance Society of United States, 336 Pa. 519, 524, 9 A.2d 723, 725 (1940); Brown v. Tinneny, 280 Pa.Super. 512, 517, 421 A.2d 839, 842 (1980).


author: BECK, Judge:

text:
    508 A.2d 316
    COMMONWEALTH of Pennsylvania v. Walter BROOKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1985.
    Filed April 21, 1986.

      Robert A. Hoffa, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   BECK, Judge:

Appellant Walter Brooks was convicted at jury trial of robbery, burglary, aggravated assault, and criminal conspiracy. Post-verdict motions were denied, and appellant was sentenced to terms of imprisonment totalling 25 to 50 years. This is a direct appeal from the judgment of sentence.

Appellant Brooks raises three issues for our review: (1) whether, due to a lack of proper authentication, the trial court erred in admitting into evidence two Commonwealth exhibits, an envelope and a letter; (2) whether the trial court erred in denying appellant’s motion for a mistrial; and (3) whether the evidence was sufficient to support the verdict.

Appellant Brooks and co-conspirator Mervin Fortune were arrested in connection with the robbery and beating of an elderly couple in their home. Fortune pleaded guilty and agreed to testify on behalf of the Commonwealth in return for a promise that the Commonwealth would notify the sentencing court of his cooperation. At Brooks’s trial Fortune testified about the crime in which Fortune, Brooks, and another co-conspirator were involved. In addition, he testified that while he and Brooks were in jail they exchanged a number of letters and that one of the letters he received was threatening. The letter (Commonwealth Exhibit C-2) and the envelope in which it was delivered (Commonwealth Exhibit C-3) were admitted into evidence. Brooks challenges the admission of these exhibits.

First we note that the envelope was properly admitted. Brooks admitted by stipulation that he had addressed the envelope. Authentication of a writing is not required if the adversary has admitted its genuineness in open court or in his pleadings. Osborne v. Victor Dairies, Inc., 138 Pa.Super. 117, 123, 10 A.2d 129 (1940); McCormick, Evidence § 219 and § 262 at 630 (E. Cleary 2d Ed. 1972). Thus, the envelope was properly admitted into evidence by virtue of Brooks’s stipulation that he had addressed it.

Brooks also maintains that admission of the letter into evidence was error because the letter was admitted without proper authentication. We disagree, and conclude that authentication of the letter was sufficient for admission.

Generally, two requirements must be satisfied for a document to be admissible: it must be authenticated and it must be relevant. In other words, a proponent must show that the document is what it purports to be and that it relates to an issue or issues in the truth determining process. Specific evidentiary rules have developed for authenticating writings such as letters. These rules are necessary because of the problems involved in ascertaining the authorship of documents. As one commentator notes, “[m]ost documents bear a signature, or otherwise purport on their face to be of a certain person’s authorship.” 7 Wigmore, Evidence § 2130 at 709 (Chadbourn rev. 1978). It would be too easy to assume that a letter bearing the signature of “X” was authored by “X”. In order that such an unsupported assumption not be the foundation of authentication, the requirement for admission of a document such as a letter is a prima facie case that the document is what it purports to be. The purpose of this rule is to provide a necessary check against fraud or mistake. Commonwealth v. Harrison, 290 Pa.Super. 389, 396, 434 A.2d 808, 812 (1981). See also United States v. Sutton, 426 F.2d 1202, 1206 (D.C.Cir.1969); McCormick, Evidence, supra, § 219 at 687.

Of course, authentication does not necessarily end the inquiry as to admissibility. Making the prima facie showing that the document is what it purports to be does not automatically lead to the conclusion that the document is relevant to an issue or issues in the case. See K. Broun, Authentication and Contents of Writings, 1969 Law and Social Order 611, 631; Fed.R.Evid. 901(b) advisory committee note.

A document may be authenticated by direct proof, such as the testimony of a witness who saw the author sign the document, acknowledgment of execution by the signer, admission of authenticity by an adverse party, or proof that the document or its signature is in the purported author’s handwriting. See McCormick, Evidence, supra, §§ 219-221. No direct evidence to authenticate the letter was offered in the case sub judice.

A document may also be authenticated by circumstantial evidence, a practice which has been uniformly recognized as permissible. See Sutton, 426 F.2d at 1206; United States v. Sinclair, 433 F.Supp. 1180, 1195-96 (D.Del.1977), aff'd 566 F.2d 1171 (3d Cir.1977); McCormick, Evidence, supra, § 222; Wigmore, Evidence, supra, § 2131. See also Sigfried v. Levan, 6 Serg. & Rawle 308 (1820).

Certain recurrent patterns of circumstantial evidence have come to be recognized as distinct rules. These include: the ancient documents rule, which exempts documents from other authentication when the document is at least 30 years old, is free from suspicious alterations, and has been in proper custody, Louden v. Apollo Gas Co., 273 Pa.Super. 549, 553, 417 A.2d 1185, 1187 (1980); the reply letter doctrine, which regards evidence that a letter came by mail and corresponds in time and contents to a prior letter sent to the purported author as sufficient authentication, Eichenhofer v. City of Philadelphia, 248 Pa. 365, 93 A. 1065 (1915); and the Uniform Business Records As Evidence Act, 42 Pa.C.S.A. § 6108, under which a document is authenticated if a witness testifies as to preparation and maintenance of the records, In re Indyk’s Estate, 488 Pa. 567, 571, 413 A.2d 371, 373 (1979).

Nonetheless, authentication by circumstantial evidence is not limited to situations which fall within the three categories mentioned above. Instead, “proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.” McCormick, Evidence, supra, § 222. The courts of this Commonwealth have demonstrated the wide variety of types of circumstantial evidence that will enable a proponent to authenticate a writing. See e.g., Commonwealth v. Nolly, 290 Pa. 271, 138 A. 836 (1927) (letters authenticated by contents: facts known only to sender and recipient); Commonwealth v. Bassi, 284 Pa. 81, 83, 130 A. 311 (1925) (unsigned letter authenticated by defendant’s nickname written on it, along with contents indicating knowledge of matters familiar to both defendant-sender and witness-recipient); McFarland v. McFarland, 176 Pa.Super. 342, 345, 107 A.2d 615, 616, allocatur refused (1954) (authentication by writer’s style and diction); Commonwealth v. Gold, 123 Pa.Super. 128, 135-36, 186 A. 208, 211 (1936) (dicta) (circumstantial evidence authenticating telephone call by recipient’s subsequent actions would have sufficed to identify cablegram if offered); Campbell v. Wade, 83 Pa.Super. 415, 418 (1924) (purported author’s subsequent keeping of appointment arranged in letter sufficient to authenticate).

Moreover, we note that the approach of the Federal Rules of Evidence towards authentication by circumstantial evidence parallels that of Pennsylvania. Fed.R.Evid. 901(b) lists several illustrations of allowable circumstantial evidence of authenticity, and the Advisory Committee’s Note indicates that the illustrations are “not intended as an exclusive enumeration of allowable methods.” Illustration (4) to Fed.R.Evid. 901(b) is particularly noteworthy. It provides for authentication by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances.”

Federal cases also allow a broad range of circumstantial evidence of authenticity. See e.g. In re Japanese Electronic Products Litigation, 723 F.2d 238, 286-87 (3d Cir.1983), reversed on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., — U.S. —, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (totality of circumstances, especially fact that documents obtained from defendants in course of litigation, sufficient to support a finding that documents were what profferor claimed them to be); United States v. Goichman, 547 F.2d 778, 784 (3d Cir.1976) (document authenticated by recordation in prior proceeding, reference to writer’s children by name, and other corroboration); Sutton, 426 F.2d at 1208 (documents found near murder victim authenticated by envelope with defendant’s name as addressor and close relations as addressees and by content of notes implying involvement ih love triangle); Sinclair, 433 F.Supp. at 1196 (document authenticated by letterhead containing defendant’s name, contents referring to recent conversation with addressee and agreement on proposed course of action, and subsequent discussion between defendant and addressee based on document).

Clearly then, a writing can be authenticated by circumstantial evidence that may take a number of forms, and that tends to show that the writing is what it purports to be. As the above-cited cases indicate, such evidence may, depending upon the facts at issue, include proof of: the timing and method of delivery of the document, information in the contents of the writing that is known by the purported sender and the recipient, events preceding or following the execution or delivery of the writing, other communications by the purported sender prior to or following the execution or delivery of the document, the appearance of the purported sender’s name or letterhead on the document, the handwriting technique, or the style of expression used in the language of the writing.

We note that the ultimate determination of authenticity is for the jury. A proponent of a document need only present a prima facie case of some evidence of genuineness in order to put the issue of authenticity before the factfinders. See e.g., Nolly, 290 Pa. at 274, 138 A. at 837 (signature of defendant’s fictitous name, and contents of letters sufficient to justify their admission; jury to consider weight); Stahl v. Berger, 10 Serg. & Rawle 169, 170 (1823) (witness’s testimony concerning circumstances of execution of document enough evidence to place issue of execution before jury); Sigfried v. Levan, 6 Serg. & Rawle 308 (1820).

The court makes the preliminary determination of whether or not a prima facie case exists to warrant its submission to the finders of fact, Brenner v. Lesher, 332 Pa. 522, 524, 2 A.2d 731, 733 (1938), but the jury itself considers the evidence and weighs it against that offered by the opposing party:

All that is done by the Court ... is this, that if the execution of the deed is proved ... the party has made out a “prima facie” case, not a conclusive one ... and these facts are submitted to the jury to exercise their own judgment____ [I]t is admitted not because the Court draw any conclusion but because some evidence is offered from which the jury might presume [i.e. infer] the fact in issue____ [I]f there be any fact or circumstance tending to prove the execution ... it is open for the decision of the jury.

Wigmore, Evidence, supra, § 2135 (quoting Sigfried v. Levan, 6 Serg. & Rawle 308, 311 (Pa.1820)) (emphasis added). See e.g. Harrison, 290 Pa.Super. at 398 n. 2, 434 A.2d at 813 n. 2 (evidence of circumstances implicating reply letter doctrine would have been sufficient to present question of authenticity to jury).

The federal rule relating to the functions of the judge and the jury and the standard of proof required to submit the authenticity issue to the factfinder comports with the analysis used in Pennsylvania. The policy underlying Fed.R.Ev. 901(a) has been explained as follows:

This rule does not ignore or repudiate the policy justifications for the authentication requirement. It simply recognizes that where the question is one of probative force or credibility — as it necessarily always is with questions of authenticity and identity — the jury is as competent as the court. The jury is constituted expressly for the purpose of applying common sense and community mores to disputed issues of fact where the principal question is almost always one of credibility. In Rule ... 901(a) the court is told to admit where a reasonable juror might find for the proponent on the issue of relevancy. In deciding whether to admit, issues of credibility are decided in favor of the proponent.

5 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 901(a)[02] at 901-22 (1983) (footnotes omitted) (emphasis added). See also McCormick, Evidence, supra, § 227.

Federal case law lends support to the approach we find articulated by our own courts. In order to authenticate a writing, the proponent need only establish a foundation, a prima facie showing, of some evidence from which the factfinder could legitimately infer that the document is what the proponent asserts it to be. See e.g. In re Fine Paper Antitrust Litigation, 751 F.2d 562, 586 (3d Cir.1984); In re Japanese Products Antitrust Litigation, 723 F.2d at 286 (source, contents and appearance of documents sufficient to authenticate); Goichman, 547 F.2d at 784 (evidence that document recorded in prior proceeding and contents of document sufficient to establish prima facie showing of authenticity).

As we have already discussed, the foundation may consist of circumstantial evidence and may include factors relating to the contents of the writing and the events before and after the execution of the writing. Each case must be decided on its facts. The mere presence of the purported writer’s name on a document will not be sufficient, but other circumstantial factors, taken singly or in concert, will be sufficient proof of authenticity that a judge may admit a document into evidence if those facts support a legitimate inference that the writing is what it purports to be.

The facts in this case more than adequately support the trial court’s finding of a prima facie showing of the letter’s authenticity. The writing was therefore properly admitted into evidence.

Appellant was connected to the threatening letter by several types of circumstantial evidence which suggested that he sent it to the witness, the co-perpetrator of the crime, Mervin Fortune. To begin with, Fortune testified that this was the letter contained in the envelope that the appellant admits having addressed. (N.T. 5/26/83 at 49-50). In addition, the letter on its face demonstrates a connection to the appellant: appellant’s name appears at the top and at the bottom of the page, and the letter starts and ends with the appellation “Buddy” that Fortune and the appellant used in their correspondence with each other. (Commonwealth Exhibit C —3; Commonwealth Exhibit C—8; Defense Exhibit D-2). See, e.g., Nolly, 290 Pa. at 271, 138 A. at 836; Bassi, 284 Pa. at 81, 130 A. at 311.

The contents of the letter also connect it to the appellant. The writer threatens Fortune’s girlfriend Veronica and his child, and refers to Veronica by her nickname, “Ron-Ron.” The use of the nickname implies that the writer was someone who, like the appellant, knew Fortune and the people in Fortune’s life fairly well. (N.T. 5/26/83 at 8-9). Moreover, the letter refers to a prior conversation the writer had with Fortune concerning Veronica’s statement to the police which had implicated both the appellant and Fortune in the crime: “have you been thinking about what I told you to do as far is [sic] this case is concerned____ Did you tell [Ron-Ron] she had better get that statement straight____” The appellant would be likely to know of the incriminating statement, and, like the author of the letter, had an interest in the outcome of the criminal proceedings to which the statement related. Thus, the contents of the document also provide circumstantial evidence of a connection with the appellant. See e.g. Nolly, 290 Pa. at 271, 138 A. at 836; Bassi, 284 Pa. at 81, 130 A. at 311. See also Goichman, 547 F.2d at 778; Sinclair, 433 F.Supp. at 1180.

Finally, events preceding and subsequent to the letter in question corroborate Fortune’s testimony and imply an association between the writing and the appellant. A draft statement composed by Fortune in which Veronica would recant her prior statement implicating Fortune and Brooks was introduced into evidence. Although Fortune testified that he prepared the statement before receiving the threatening letter, he also testified that he wrote the statement at the appellant’s request. (N.T. 5/26/83 at 103). The jury could have believed that the statement was evidence of a prior implied or oral threat that was later confirmed by the threatening letter. See, e.g., Sinclair, 433 F.Supp. at 1180 (authentication by contents referring to recent conversation).

Additionally, several subsequent letters between Fortune and appellant which discussed their testimony and the status of “our case” were admitted. (Commonwealth Exhibits G-7, C-8, C-9B). The jury could reasonably have inferred that the letter in question was part of this ongoing correspondence concerning the criminal proceedings in which both the appellant and Fortune were involved. See, e.g., Sutton, 426 F.2d at 1208.

The trial judge was correct in concluding that the letter was admissible. The totality of the circumstances in this case constitute a prima facie showing that the letter is what it purports to be: a letter from appellant Brooks to Fortune.

Since we conclude that the letter was duly authenticated, we next address the question of whether the letter is relevant. We conclude that it is. The letter relates to an issue in the truth determining process; i.e. the guilt or innocence of appellant. The letter bears directly on this question and suggests that the writer was attempting to hide his involvement in the crime by compelling a witness to change her testimony. Accordingly, we hold that the trial court did not err in admitting the letter.

On appellant’s second issue, we hold that the trial court did not err in denying appellant’s motion for a mistrial. Pa.R.Crim.P. 118(b) requires that in order to be timely, a motion for a mistrial shall be made when the allegedly prejudicial event occurs. Appellant’s trial counsel initially objected but then withdrew that objection when the court gave a curative instruction, stating that his concerns had been satisfied (N.T. May 26, 1983, 80-85). Counsel’s subsequent motion for mistrial was thus untimely, precluding it as a basis for appeal. Commonwealth v. Randolph, 280 Pa.Super. 189, 190-92, 421 A.2d 469, 470-71 (1980). Additionally, any prejudice to the appellant arising from the witness’ response was cured by the cautionary instruction.

After carefully reviewing the briefs, the record, and the trial court’s opinion, we also reject appellant’s third claim, insufficiency of evidence. The trial court discussed this claim in careful detail in its opinion denying post-verdict motions. We agree with the trial court’s well-reasoned determination that, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner below, more than ample evidence existed to sustain the jury’s verdict. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).

Judgment of sentence affirmed.

      . Certain kinds of writings are said to "prove themselves" or to be "self-authenticating" and will be received in evidence without further proof of genuineness. These include acknowledged writings, public records, and, under the federal rules, official publications and certain other published writings. See Fed.R.Evid. 902; McCormick, Evidence, supra, § 228 at 700-01. A letter is not of this category.

      . Federal Rule of Evidence 901(a) states:
      The requirement of authentication ... as a condition precedent to admission is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.