text:
    534 A.2d 537
    WEDGEWOOD DINER, INC., John E. Sisko and Sharon E. Sisko, his wife v. John E. GOOD, Jr., John Good Associates, Mervin Ebersole and Lorraine Ebersole, his wife. Appeal of Mervin EBERSOLE and Lorraine Ebersole, his wife.
    Superior Court of Pennsylvania.
    Argued April 1, 1987.
    Filed Dec. 7, 1987.

      James J. Kutz, Harrisburg, for appellants.
    Terry S. Hyman, Harrisburg, for Wedgewood, appellees.
    James F. Carl, Harrisburg, for Good, appellees.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

The significant issue in this appeal involves application of the doctrine of election of remedies. Where the owner of a diner business has affirmed a refinancing arrangement by commencing and litigating successfully an action for damages against the agent who negotiated the transaction negligently and in breach of his fiduciary duty, may the owner thereafter disaffirm and rescind the transaction in a separate action against the other party to the transaction. We hold that he cannot and reverse the final decree which allowed rescission and restitution.

The doctrine of election of remedies is best described and defined in an Annotation entitled “Election: Rescission or Damages” appearing at 40 A.L.R. 4th 627, at pp. 630 and 631.

An election of remedies has been defined as the act of choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts. The phrase has also been used in a more restrictive sense to denote the doctrine that the adoption, by an unequivocal act, of one of two or more inconsistent remedial rights has the effect of precluding a resort to the others. The doctrine has frequently been regarded as an application of the law of estoppel, on the theory that a party cannot, in the assertion or prosecution of his rights, maintain inconsistent positions, and that where there is a choice of two remedies which proceed upon opposite and irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other____
It is a general rule that a person defrauded in a sales or other contract has a choice of remedies; he may rescind the contract and recover what he has paid, or he may affirm the contract and recover damages for the fraud and deceit practiced upon him. Once such a person has made a binding election of one remedy over the other, however, he will be precluded from thereafter maintaining an action on the other____

(footnotes omitted). See also: 25 Am.Jur.2d, Election of Remedies §§ 1, 2, 27. The reason for applying the rule is that rescission, an equitable remedy, involves a disaffirmance of the contract and a restoration of the status quo; whereas, the recovery of damages, which is a legal remedy, involves an affirmance of the contract. A party who has been defrauded can either rescind the contract or he can affirm the contract and recover damages. To allow him to do both would be to allow a double remedy for the same wrong.

Pennsylvania is in accord. Thus, as early as 1847, the Supreme Court said in Pott’s Appeal, 5 Pa. 500, that "... precedent has established the wholesome principle that distinct remedies cannot be used concurrently or alternately, unless they are consistent, not only in purpose but in kind.” Id. at 503. In Pittsburgh Union Stock Yards Co. v. Pittsburgh Joint Stock Co., 309 Pa. 314, 319, 163 A. 668, 669 (1932), the Supreme Court also quoted with approval from 20 C.J. 14 as follows: “A remedy based on the theory of the affirmance of a contract or other transaction is inconsistent with a remedy arising out of the same facts and based on the theory of its disaffirmance or rescission, so that an election of either is an abandonment of the other.”

The Superior Court has also acknowledged the efficacy of this rule. In Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976), the Court, per Cercone, J., wrote:

We recognize that appellants may not maintain at the same time in separate counts of one action, or in two different suits claims for rescission of a contract and restitution on the one hand and for damages for breach of the same contract together with expectation interest, on the other hand. These remedies are essentially inconsistent. Pittsburgh Union Stockyards v. Pittsburgh Joint Stock Company, 309 Pa. 314, 163 A. 668 (1932); Emery v. Third National Bank of Pittsburgh, 308 Pa. 504, 162 A. 281 (1932); Clement Martin Inc. v. Gussey, 191 Pa.Super. 464, 157 A.2d 412 (1959). One may not terminate contractual obligations and seek the return of his consideration based upon the other party’s promise through an action for rescission and restitution and at the same time seek the full benefits of that promise through an action for breach.

Id., 238 Pa.Superior Ct. at 329-330 n. 3, 357 A.2d at 576 n. 3.

It has been said that the doctrine of “election” between inconsistent remedies does not generally apply to causes of action against different persons. See: Sheriff v. Eisele, 381 Pa. 33, 36, 112 A.2d 165, 167 (1955); Nuside Metal Products, Inc. v. Eazor Express, Inc., 189 Pa.Super. 593, 597, 152 A.2d 275, 278 (1959). This statement is based on the concept that in Pennsylvania a party may have as many remedies against as many persons as the law provides. However, one can have several remedies against several persons only when the remedies are consistent. “The generally accepted view appears to be ... that where two remedies are alternate and inconsistent, the pursuit of one remedy against one person bars recourse to the other remedy against a different person; that is, that the doctrine of election of remedies may be applicable where the remedies are pursued against different persons.” 25 Am.Jur.2d Election of Remedies § 25. This is particularly so where the two parties are principal and agent in the same wrongful transaction.

Although some courts have held that the mere commencement of an action constitutes an election between inconsistent remedies, the majority and preferable view is that “where there is nothing more than the mere institution of a suit or proceeding, which is abandoned or dismissed before judgment, there is nothing on which to base an estoppel — no benefit and no detriment.” 25 Am.Jur.2d Election of Remedies § 16. These courts hold that “[wjhere a party with knowledge of his rights ... carries his case to a conclusion and obtains a decision on the issues involved, ... such action constitutes a conclusive election, so that an adverse judgment or decree will bar later resort to an inconsistent remedy----” See: 25 Am.Jur.2d Election of Remedies § 19 and cases there cited.

The Pennsylvania rule that a third person may pursue remedies to judgment against both principal and agent but is entitled to only one satisfaction, see Joseph Melnick Building & Loan Ass’n v. Melnick, 361 Pa. 328, 334, 64 A.2d 773, 776-777 (1949), has application only where remedies against the principal and agent are consistent. A third person cannot affirm a contract and recover damages against the agent and in a separate action rescind as to the principal and obtain restitution. In such a situation, a final judgment for damages in the action against the agent constitutes an election of remedies and bars a subsequent, inconsistent action to rescind the contract against the principal. Having obtained a final judgment against the agent, the third person is estopped from pursuing an action against the principal to disaffirm and rescind the very contract which he was required to affirm in order to recover damages against the agent. The third person cannot recover damages because of a bad bargain on the one hand, and, on the other, rescind and avoid entirely the bargain for which he was paid damages in the first action. The remedies are inconsistent.

John and Sharon Sisko, intending to start a diner business, purchased a dining car for $224,000.00. They placed the diner on a tract of land owned by Mervin Ebersole and fronting on Route 422 in Lebanon County. Because they could not pay the asking price of $100,000.00, however, they leased the land from Ebersole for a period of ten years, with an option to buy. The rental was $833.00 per month. They also borrowed the sum of $65,000.00 from Ebersole to meet other expenses of starting the business. This indebtedness was to be repaid at the rate of $770.00 per month, with a balloon payment of $20,000.00 at the end of six years.

In order to alleviate a cash flow problem which developed after the diner had been opened, the Siskos applied to Peoples National Bank for an additional loan of $20,000.00. The application was not approved. Nevertheless, the bank contacted John Good, the Siskos’ accountant, and suggested that a loan from the Industrial Development Authority might be the answer to their problem. Good went to Ebersole and suggested that he obtain an Industrial Development Authority loan for the Siskos which would enable them to consolidate their loans while also enabling Ebersole to obtain additional security for his loan to the Siskos, a possible profit sharing arrangement with the Siskos, and significant tax advantages. Good thereby became the agent for both the Siskos and Ebersole. The dual agency, according to the evidence, was known to Ebersole but not to the Siskos.

Ebersole borrowed $450,000.00 from the Industrial Development Authority at an interest rate of 8.5 percent per annum. He then loaned the same money to the Siskos, charging them interest at the rate of 15.5 percent. As a part of the transaction, title to the diner and also title to the furnishings and utensils were transferred to Ebersole for a nominal consideration and he, in turn, leased them back to the Siskos. As rent for the diner and the land on which it was situated, the Siskos were required to pay to Ebersole the sum of $5,250.00 per month for seven years. At the end of the seven year period, the Siskos had the option of buying the diner and the land for $534,000.00. As a result of this loan transaction, the cost to the Siskos of obtaining unencumbered ownership of the diner business was increased by $343,000.00 over the original cost thereof. Instead of spending $632,000.00 to purchase the land and diner, the Siskos were now obligated to pay $975,000.00.

The Siskos commenced an action against Good in which they contended that their accountant had been guilty of professional negligence and had violated the fiduciary duty which he owed them by representing both parties to the transaction without their knowledge and consent. The jury which heard the evidence agreed that the new loan transaction would require the Siskos to pay an additional $343,-000.00 to acquire title to the diner business and awarded them damages in that amount. Although the trial court reduced the amount of the verdict, this Court, on appeal, reinstated the verdict. See: Wedgewood Diner v. Good, 363 Pa.Super. 650, 522 A.2d 666 (1987). The Supreme Court denied allocatur. In that action the Siskos unequivocally affirmed the new loan transaction and recovered damages measured by the additional cost thereof.

In a separate action against Ebersole, the Siskos sought to disaffirm and rescind the transaction. The trial court allowed rescission, restructured the loan transaction to exclude Ebersole’s participation, and ordered restitution in the amount of $61,000.00 for moneys already paid to Ebersole. Ebersole appealed. He argues, as he did throughout the proceedings in the trial court, that the action to rescind the loan transaction was barred by the prior inconsistent action which had affirmed the loan transaction and in which the Siskos had recovered from Good the additional cost needed to purchase the land and diner business.

We are constrained to agree that the rescission requested in the instant action is barred by appellees' election to affirm the transaction and recover a judgment against Good in the prior action. If the Siskos had filed separate actions against Good and Ebersole and in each action had affirmed the loan transaction and had sought to recover damages as a consequence of the bad bargain, they could have recovered judgments against both, as permitted by Joseph Melnick Building & Loan Ass’n v. Melnick, supra. In that event, they would have been entitled to only one satisfaction. In fact, however, they affirmed the contract and recovered damages against the agent-accountant but not against the principal. Having affirmed the contract in the action against the agent and having recovered a final judgment for damages therein, they cannot now turn around and rescind the very same transaction in a separate action against Ebersole.

In view of our determination of this issue, it is unnecessary to decide the effect, if any, of the Supreme Court decision in Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 499 A.2d 282 (1985). We cannot help but observe, however, that the issue in Aiello was the liability of a principal in damages to a third person for fraudulent misrepresentations made by an agent. In the instant case, the Siskos did not seek to recover damages from Ebersole for a poor bargain; instead, they sought to rescind the contract after they had already recovered a judgment for damages against the agent. To such an issue Aiello did not speak.

The decree allowing rescission and awarding damages is reversed, and the action therefor is dismissed.

BECK, J., concurs in the result.

      . The sum of $16,000.00 was paid down, and the balance was to be paid at the rate of $4,069.00 per month for a period of seven (7) years.

      . This rate was higher than the rate charged on any prior Sisko loan.

      . By post-argument submission, appellant has now advised us that checks in payment of the judgment have been delivered.

      . The trial court initially determined that the transaction between Sisko and Ebersole could not be rescinded but later, in response to a motion for post-trial relief, concluded that Aiello was controlling and required that the Siskos be allowed to rescind.


source: Caselaw Access Project

author: MONTEMURO, Judge: KELLY, Judge,

license: Public Domain

text:
    534 A.2d 541
    COMMONWEALTH of Pennsylvania, Appellant, v. James CONWAY, Appellee.
    Superior Court of Pennsylvania.
    Argued June 15, 1987.
    Decided Oct. 23, 1987.
    Reargument Denied Dec. 28, 1987.

      Stuart B. Suss, Assistant District Attorney, West Chester, for Com.
    Paul J. Rubino, Paoli, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   MONTEMURO, Judge:

The Commonwealth appeals from an oral suppression order issued by the Chester County Court of Common Pleas on September 23, 1986. The court found inadmissible the audio portion of a video tape of appellee performing sobriety tests after he had been arrested for driving while under the influence. We affirm.

Prior to reviewing the suppression order, we must determine whether it is appealable. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that the Commonwealth may appeal a suppression order as long as the Commonwealth certifies in good faith that the suppression order substantially handicaps or terminates the prosecution. Id., 506 Pa. at 545, 486 A.2d at 386. A prosecution is substantially handicapped whenever “the Commonwealth is denied the use of all their evidence,” id. The Commonwealth’s certification is “not contestable,” and “[i]t, in and of itself, precipitates and authorizes the appeal.” Id. See also Commonwealth v. Hunsberger, 358 Pa.Super. 207, 516 A.2d 1257 (1986) (“Dugger rule” applied). In the case before us, the Commonwealth has satisfied the certification requirement. We therefore find that the Commonwealth has an absolute right of appeal to this Court to challenge the validity of the September 23, 1986 suppression order. We now turn to the merits of the Commonwealth’s claims.

Appellee James Conway was arrested on the morning of February 12, 1986. A police officer had been called to the scene and had observed Mr. Conway seated in his car, which was stuck in a snowbank on the side of the road. Mr. Conway was attempting to free the car from the snowbank. As the officer approached the car, he noticed that Mr. Conway appeared intoxicated. He also smelled alcohol. The patrolman attempted to administer two field sobriety tests, the horizontal gaze nystagmus and the one-leg stand. The officer concluded that appellee was incapable of completing the horizontal gaze nystagmus test. Because the road was snow-covered, the officer felt that the road conditions were too dangerous to administer any other sobriety tests. He then arrested Mr. Conway for driving under the influence of alcohol and took him to the police station.

At the station, the police informed appellee of his Miranda rights and of the Implied Consent Law. Mr. Conway stated that he did not wish to speak to the officer and refused any chemical testing of his blood. He attempted to contact his attorney but was unsuccessful. The police then videotaped Mr. Conway. On camera, Mr. Conway was again advised of his Miranda rights, and he again invoked his right to remain silent and his right to counsel. He was then filmed performing three sobriety tests. As he performed the tests, Mr. Conway spoke only in order to get occasional clarification concerning the officer’s oral instructions. The officer also requested Mr. Conway to count from 1,001 to 1,030 while balancing on one leg. After Mr. Conway had completed the tests, the police officer asked him questions, including how much and what he had drunk prior to his arrest.

The suppression court concluded that the sound portion of the tape, in conjunction with the video, would both mislead the jury and violate appellee’s privilege against self-incrimination. Accordingly, the court proposed that a police officer give a “voice over” to explain the film while only the video portion of the tape be shown to the jury. The officer could also comment on whether he thought appellee had passed the tests.

The Commonwealth argues that the audio tape should not be suppressed on the ground that it would mislead the jury because the jury is capable of analyzing such evidence. Additionally, the Commonwealth concedes now, as it did at the suppression hearing, that both appellee's filmed invocation of his right to remain silent and the post-test questioning by the police officer are inadmissible. However, it argues that appellee’s “utterances” during the course of the tests were neither testimonial nor compelled and are, therefore, not protected by the privilege against self-incrimination. The Commonwealth maintains that because it seeks to introduce the audio portion of the videotape only to demonstrate appellee’s symptoms of intoxication, not for the substantive content of the words, the suppression court erred in excluding the audio portion of the tape based on appellee’s Fifth Amendment rights.

This appeal, therefore, presents one issue: did the trial court err when it suppressed the audio portion of the tape containing appellee’s spoken words, which were recorded while he performed the sobriety tests? We have viewed the tape both with and without sound. Because we find that admitting the audio portion of the tape would be both more misleading than probative and would contravene appellee’s constitutional right against self-incrimination, we affirm the order of the trial court.

The court of common pleas determined that the sound portion of the tape could mislead the jury and would thus have a prejudicial impact on appellee’s case. Because this appeal challenges a suppression order, we are cognizant of our narrow scope of review. The trial court has “broad discretion as to the manner in which a trial is to be conducted, particularly with regard to the admission or exclusion of evidence.” Commonwealth v. Lumpkins, 324 Pa.Super. 8, 14, 471 A.2d 96, 99 (1984). Relevancy is, of course, a basic requirement for the admissibility of any evidence in a criminal trial. Id. However, not all relevant evidence is admissible, and a trial court may exercise its discretion to exclude relevant evidence that “may confuse, mislead or prejudice the jury,” id., 324 Pa.Superior Ct. at 15, 471 A.2d at 100. See also Commonwealth v. Ulatoski, 472 Pa. 53, 63 n. 11, 371 A.2d 186, 191 n. 11 (1977) (“[a]ll evidence, even when determined to be relevant, is inadmissible if the trial court, in its discretion, determines that its prejudicial impact outweighs its probative value”). Accord: Commonwealth v. Story, 476 Pa. 391, 402, 383 A.2d 155, 160 (1978); Commonwealth v. Hickman, 453 Pa. 427, 434, 309 A.2d 564, 568 (1973); Commonwealth v. Costal, 351 Pa.Super. 200, 203, 505 A.2d 337, 338 (1986); Commonwealth v. Lumpkins, supra; Commonwealth v. Krajci, 283 Pa.Super. 488, 495, 424 A.2d 914, 917 (1981). Of course, most of the evidence offered by the prosecution in a criminal case will prejudice the defendant. Commonwealth v. Dollman, 355 Pa.Super. 108, 114, 512 A.2d 1234, 1237 (1986) (citing McCormick, Handbook of the Law of Evidence, § 185 (2d ed. 1972)). Accord: Commonwealth v. Green, 477 Pa. 170, 176, 383 A.2d 877, 880 (1978). The inquiry therefore is whether the evidence is so prejudicial that it “may inflame” the jury to make a decision based upon “something other than the legal propositions relevant to the case.” Commonwealth v. Shain, 324 Pa.Super. 456, 464, 471 A.2d 1246, 1249 (1984); see also Commonwealth v. Hodge, 270 Pa.Super. 232, 242, 411 A.2d 503, 508 (1979) (evidence is overly prejudicial if it results in the “jury being so aroused as to be unable to decide the case in an impartial manner”). If evidence is potentially inflammatory, the court, in making its determination of admissibility, must weigh the inflammatory nature of the evidence against its “essential evidentiary value.” Commonwealth v. Pifer, 284 Pa.Super. 170, 181, 425 A.2d 757, 762 (1981). See also Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549 (1982); Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747, 750 (1977); Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 (1974). A piece of evidence is of essential evidentiary value if the need for it clearly outweighs the likelihood of it inflaming the minds and passions of the jurors. Id. Because rulings on the admission of evidence rest within the sound discretion of the trial court, we will not reverse the trial court’s decision absent a manifest abuse of discretion. Commonwealth v. Lumpkins, supra 324 Pa.Super. at 15, 471 A.2d at 100.

In limiting the admissibility of the tape to the video portion only, the suppression court determined that the audio portion of the tape was misleading and potentially prejudicial because Mr. Conway, in response to the officer’s instructions, asks a series of questions, some of them “arguably incriminating.” Additionally, Mr. Conway’s questions demonstrate some confusion which the jury might conclude, precipitously, was due to intoxication rather than due to the equally plausible nervousness generated by the arrest. See T.Ct.Op. at 9-10. The Commonwealth asserts, however, that “it is precisely the function of the jury to weigh the evidence and characterize it consistent with the charge of the court concerning the weight and credibility of all forms of evidence presented to them.” Appellant’s Brief at 15. While we agree with the Commonwealth’s general proposition, we reiterate that questions involving whether certain kinds of evidence should even reach the jury are left to the broad discretion of the trial court.

In the case before us, we agree with the suppression court and find that the probative value of the visual recording of Mr. Conway performing the sobriety tests, when coupled with the audio portion of the tape, is outweighed by its prejudicial impact. When the videotape is viewed in conjunction with the sound, it is apparent that Mr. Conway is crying. He also asks numerous questions to clarify the instructions read to him by the officer. The evidence, with the sound included, is highly inflammatory. The jury is likely to jump to the immediate conclusion that Mr. Conway was drunk when he took the tests, without considering other reasonable explanations for Mr. Conway’s behavior. As the suppression court noted, Mr. Conway may have been exhibiting a natural nervousness stemming from the trauma of the arrest. Equally plausible, Mr. Conway may have been distracted by the camera or shamed by the arrest and further humiliated by being taped. Mr. Conway's answers to the post-test questions also reveal that he had slept only five hours the night before his arrest. Fatigue can often manifest itself in confusion.

When evidence is inflammatory, the court must determine its essential evidentiary value. In this case, Mr. Conway has been charged with driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(1) (1987). Therefore, the Commonwealth must prove that Mr. Conway was “operating a motor vehicle ... while under the influence of alcohol to a degree which rendered him incapable of safe driving.” Commonwealth v. Griscavage, 512 Pa. 540, 544, 517 A.2d 1256, 1258 (1986); 75 Pa.C.S. § 3731(a)(1). The audio portion of the tape does not possess essential evidentiary value in relation to the Commonwealth’s burden. The jury’s primary inquiry is to determine whether the faculties that were essential to enable Mr. Conway to operate an automobile safely were substantially impaired by alcohol. See Commonwealth v. Bruder, 365 Pa.Super. 106, 112, 528 A.2d 1385, 1390 (1987), allocatur pending (No. 650 E.D.Allocatur Docket, 1987), slip op. at 11. Mr. Conway's physical state has an arguably higher correlation to his ability to operate an automobile safely than does his ability to understand the instructions given to him by the officer. The video portion of the tape allows the jury to view Mr. Conway’s physical state. In addition to being able to watch Mr. Conway’s performance on the sobriety tests, which is perhaps the best indicator of Mr. Conway’s possible physical impairment due to alcohol, they will see his bloodshot eyes and his generally disheveled appearance. Moreover, the officer may comment on Mr. Conway’s demeanor, his ease of speech and understanding, and his performance on the tests. The Commonwealth’s need for the audio portion of the tape does not outweigh the likelihood that the evidence will inflame the jury. The audio portion of the tape therefore lacks the essential evidentiary value required to make it admissible despite its inflammatory nature.

Also compelling the affirmance of the court of common pleas’ order is our agreement with the trial court’s determination that the audio portion of the tape contravenes Mr. Conway’s privilege against self-incrimination. We note that Pennsylvania courts have held that “[Requiring a driver to perform physical tests ... does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial, and therefore, no Miranda warnings are required.” Commonwealth v. Benson, 280 Pa.Super. 20, 29, 421 A.2d 383, 387 (1980). See also Commonwealth v. Kloch, 230 Pa.Super. 563, 572, 327 A.2d 375, 381 (1974). Field sobriety tests are not testimonial because they “merely require a driver to exhibit his or her physical coordination.” Commonwealth v. Romesburg, 353 Pa.Super. 215, 221, 509 A.2d 413, 416 (1986). The privilege against self-incrimination, therefore, presents no impediment to admission of the video portion of the tape. However, the admission of appellee’s verbal statements made during the physical tests does present a conflict with this privilege.

The privilege, set forth in the Fifth Amendment to the United States Constitution, “protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966). See also Commonwealth v. Fernandez, 333 Pa.Super. 279, 284, 482 A.2d 567, 569 (1984) (quoting Holt v. United States, 218 U.S. 245, 252-53, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (Holmes, J.)) (the privilege prohibits using moral or physical compulsion to extort communications from an accused but does not prohibit the use of an accused’s “body when it may be material”). Pennsylvania appellate courts have held that Article I, section 9 of the Pennsylvania Constitution offers a protection against self-incrimination identical to that provided by the Fifth Amendment. See Commonwealth v. Romesburg, supra. To decide whether appellee’s statements are protected under the state or federal constitutions, we use the same analysis: we engage in a two-part inquiry to determine whether the statements were both testimonial and compelled.

Testimonial evidence is “communicative evidence as distinguished from demonstrative or physical evidence,” Commonwealth v. Fernandez, supra, 333 Pa.Super. at 284, 482 A.2d at 569. The line between physical or demonstrative evidence, on the one hand, and testimonial or communicative evidence, on the other, is a blurred one. See South Dakota v. Neville, 459 U.S. 553, 561, 103 S.Ct. 916, 921, 74 L.Ed.2d 748 (1983) (case involving the admission into evidence of a refusal to take a blood-alcohol test). Mr. Conway was required to give more than physical evidence when he demonstrated his physical coordination on the sobriety tests. The test procedure was structured so that Mr. Conway was compelled to reveal his thought processes by asking for clarification of some of the officer’s instructions, and his statements in response thereto manifest his confusion. Because confusion is arguably a sign of intoxication, Mr. Conway was forced to incriminate himself by “communicating” his confusion while performing the tests. We therefore conclude that Mr. Conway’s statements were testimonial.

Our recent decision in Commonwealth v. Bruder, supra, supports our determination that the statements made by Mr. Conway during the videotaping of his sobriety test performance, which the Commonwealth now seeks to introduce as evidence of his intoxication, are testimonial. In Bruder, the police observed the accused as he ran a red light and drove his car erratically. The officer stopped Mr. Bruder and noted signs of intoxication. The patrolman instructed Mr. Bruder to perform a physical field sobriety test and also to recite the alphabet. After failing both of these tests, Mr. Bruder was arrested for driving under the influence of alcohol and was given his Miranda warnings. Mr. Bruder challenged the trial court’s finding of guilty by arguing in post-trial motions that certain statements he had made to the police officer, including his recitation of the alphabet, were testimonial and should have been suppressed at trial because they were made before he had been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This Court agreed with Mr. Bruder. We concluded that, although he was not under formal arrest when he made his statements, Mr. Bruder had been subjected to custodial interrogation. Moreover, this Court determined that the recitation of the alphabet is “essentially communicative in nature” and, therefore, should have been excluded from evidence since it was elicited before Mr. Bruder had received his Miranda warnings. Bruder, supra, 365 Pa.Super. at 111, 528 A.2d at 1388.

In the case before us, Mr. Conway had been arrested and had invoked his right to remain silent. He never waived that right. Any compelled, testimonial statements made by him are protected by the privilege against self-incrimination. Using a “Bruder analysis,” we find that Mr. Conway’s statements are testimonial. In Bruder, the manner in which the accused recited the alphabet was offered by the Commonwealth as evidence of his intoxication. In the case before us, the Commonwealth seeks to introduce Mr. Conway’s statements for the same reason that the recitation was offered in Bruder. The Commonwealth asserts that the “evidentiary value is not in the substantive content of those utterances, but solely in the manner in which defendant expressed himself.” Appellant’s Brief at 11. That Mr. Conway’s statements are communicative cannot be questioned in light of our conclusion that Mr. Bruder’s recitation of the alphabet was communicative. Mr. Bruder was told by the police exactly what to say while the content of Mr. Conway’s statements was more within his volitional control. By seeking clarification of the police officer’s instructions, Mr. Conway expressed his thought processes far more than did Mr. Bruder in his recitation. There is a greater communicative or testimonial aspect in Mr. Conway’s statements than in Mr. Bruder’s recitation. We must therefore conclude that Mr. Conway’s statements are testimonial.

We turn to the second part of our two-part inquiry to determine whether Mr. Conway’s statements were compelled by police conduct. The Commonwealth argues that Mr. Conway’s statements were voluntary. We disagree. If a testimonial statement is given “freely and voluntarily without any compelling influences,” it is admissible, Commonwealth v. Sero, 478 Pa. 440, 453, 387 A.2d 63, 70 (1978). See also Commonwealth v. Bracey, 501 Pa. 356, 367, 461 A.2d 775, 780 (1983) (quoting Sero, supra). However, if police conduct is “likely or expected to elicit a confession or other incriminating statements,” Miranda warnings are required. Id. (emphasis added).. If the accused, like Mr. Conway, does not waive the privilege against self-incrimination, any testimonial statements obtained as a result of police conduct likely to elicit incriminating statements are inadmissible at trial. At the taping of Mr. Conway’s performance on the sobriety tests, the police officer administering the tests explained each test to Mr. Conway before making him physically perform the test. He asked Mr. Conway after each instruction whether he understood what he was supposed to do. See N.T., September 23, 1986, at 22, 23, 24. In response to these questions, Mr. Conway answered by stating what he understood the instructions to be, or he asked for further clarification. The conduct of the police officer elicited testimonial statements from Mr. Conway that the Commonwealth now seeks to use against him. Additionally, the situation itself compelled Mr. Conway to make his statements seeking clarification. Because he was being taped, Mr. Conway was pressured to perform the tests correctly to prevent further embarrassment and to avoid making mistakes that would surely be used against him at trial. We therefore conclude that the statements made by Mr. Conway during the taping were both legally compelled and testimonial. Because he had not waived his right against self-incrimination, Mr. Conway may now invoke the protection of the state and federal constitutional provisions against self-incrimination. His statements, recorded on the audio portion of the videotape, are inadmissible at trial.

Order affirmed.

KELLY, J., files a concurring statement.

KELLY, Judge,

concurring:

I concur in the result reached by the majority. Faced with clearly prejudicial and excludable statements in the audio portion of the tape (i.e. appellant’s invocation of his Miranda rights), it was not an abuse of the trial court’s sound discretion to order the suppression of the entire audio portion of the tape rather than redact particular statements.

I do not join in the majority’s analysis of the alleged inflammatory nature of such audio or video tapes in general. Nor do I join in the majority’s alternate holding that appellant’s remarks during the sobriety tests were testimonial communications protected by the Fifth Amendment. I find neither discussion necessary to the disposition of this appeal. Furthermore, I do not perceive this appeal to have raised or decided what statements by appellant may be related to the factfinder at trial by means other than the audio portion of the video tape. We are called upon here only to decide whether the trial court abused its discretion in suppressing the audio portion of the video tape. I would simply hold that it did not.

      . To administer the horizontal gaze nystagmus test, the police officer faces the subject. The officer then holds an object such as a pen or a pointer directly in front of the subject’s face and asks the subject to keep his head still while following the object with his eyes only. The officer then moves the object from side to side on a horizontal plane. The procedure tests the subject’s ability to focus.

      . 75 Pa.C.S. § 1547 (1987). The statute provides in pertinent part that (a) General Rule. Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood ... if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle: (1) while under the influence of alcohol____
      75 Pa.C.S. § 1547(a) (1987).

      . Because neither party challenges the admissibility of the video portion of the tape, we are not called upon to make a judgment concerning the utility of this type of demonstrative evidence. We are, however, troubled by this “advance” in technology. We question whether such evidence is necessary in drunk driving cases since, usually, the police officer who administered the sobriety tests can testify with regard to the subject’s physical coordination. Because there is a great likelihood of prejudice to a defendant from such evidence, the video tape is more than merely a cumulative piece of evidence corroborating the administering officer’s testimony.
      We note that had Mr. Conway challenged the admissibility of the video tape, as well as of the audio tape, the suppression court would apply the general two-step test to determine the admissibility of such demonstrative evidence. First, the court determines whether the evidence is inflammatory in nature. If the evidence is inflammatory, the court then decides whether the evidence is of "essential evidentiary value” such that its need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. See Commonwealth v. Groff, 356 Pa.Super. 477, 481, 514 A.2d 1382, 1384 (1986) (and cases cited therein). See also our discussion at pages 543 through 544 of the text.
      The privilege against self-incrimination ordinarily presents no barrier to admission of demonstrative or physical evidence such as a video tape. A visual recording of a suspect’s legally compelled actions, though perhaps highly incriminating, would not, in general, constitute communicative or testimonial evidence. It therefore would not be protected by the privilege against self-incrimination. See Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1831-32, 16 L.Ed.2d 908 (1966) (courts have usually held that the protection of the privilege does not extend to compulsory fingerprinting, photographs, measurements, writing or speaking for identification, appearing in court, assuming a particular stance, walking or making a particular gesture because the privilege is not violated by compulsion which makes a suspect the source of physical evidence).

      . For instance, after the officer administered the horizontal gaze nystagmus test, Mr. Conway asked, "Did I pass?” N.T., September 23, 1986, at 20.

      . Mr. Conway was also charged with violating 75 Pa.C.S. § 3731(a)(4), which would require the Commonwealth to prove that Mr. Conway was operating a motor vehicle and that his blood-alcohol content was at least 0.10%. Commonwealth v. Speights, 353 Pa.Super. 258, 262, 509 A.2d 1263, 1265 (1986). However, Mr. Conway refused to submit to any testing of his blood-alcohol level.

      . The police officer read the test instructions in a monotone. He used little, if any, inflection or intonation. Some of the instructions were confusing. For instance, the officer explained the "walk the line” balancing test as follows:
      Take nine heel to toe steps on the line, keeping your feet on the line. When you get to the 9th step, pivot on your lead foot, keeping your lead foot on the line, taking several small steps on your lead foot, such as this [officer demonstrates], and turn around. Then you’ll take nine more heel to toe steps back to the starting position. Understand that?
      N.T., September 23, 1986, at 21.


author: CIRILLO, President Judge: TAMILIA, Judge,

text:
    534 A.2d 771
    Leslie WARE, Appellant v. Joseph McKNIGHT.
    Superior Court of Pennsylvania.
    Argued June 25, 1987.
    Filed Oct. 26, 1987.
    Reargument Denied Dec. 23, 1987.

      Matthew K. Perks, Assistant District Attorney, Philadelphia, for appellant.
    Francis X. Nolan, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from a denial of appellant’s petition for reconsideration and to reopen to allow additional evidence, or in the alternative, a new trial. Appellant argues that the Court of Common Pleas of Philadelphia County erred in denying her petition. We affirm.

The appellant presents three issues for our review: (1) whether the trial court erred in finding evidence insufficient to overcome the presumption of legitimacy; (2) whether the trial court erred in failing to consider the results of the HLA blood testing requested by and stipulated to by appellee; and (3) whether the trial court abused its discretion in refusing to grant a new trial after being informed of the after-discovered evidence.

Appellant, Leslie Ware, met appellee, Joseph McKnight, on May 15, 1976 and lived with him for almost three years. She became pregnant in November of 1977, and her child was born on August 7, 1978. Although appellant admitted she was married to another man in 1974, and not divorced from her husband until April 13,1982, she testified that she had sexual relations only with appellee during October through December of 1977. Appellant indicated that during her relationship with appellee, her husband was involved with another woman. The parties continued living together for approximately nine months after the child was born. Appellee denies any sexual relations with appellant, but admits giving her fifty-eight dollars in 1985 because she was harassing him at work.

On July 23, 1980, a complaint for support was filed against appellee by the Pennsylvania Department of Public Welfare. At the first listing on August 18, 1980, no one appeared. The case was then referred to the Parent Locater Service. Appellee was located in California, so appellant was asked to file a complaint under the Uniform Reciprocal Enforcement of Support Act. 42 Pa.C.S.A. § 6761 et seq. On May 28, 1985, appellant filed a petition for support with the Philadelphia Domestic Relations Section.

On December 11, 1980, appellee appeared at a pretrial conference where he denied paternity of the child. He requested blood studies and signed a stipulation of admissibility. Although appellant was not present at the pretrial conference, this proceeding was entered on the docket. Therefore it became part of the record.

After several continuances, a non-jury trial was held on June 11, 1986. Prior to trial, appellee’s counsel refused to stipulate to the admissibility of the blood test and appellant’s counsel agreed to proceed to trial without the stipulation. Appellant’s counsel never offered the results of the blood test as evidence. On July 24, 1986, the trial judge entered an order denying appellant’s petition for support.

On August 6, 1986, appellant filed exceptions and a petition for reconsideration and to reopen to allow additional evidence, or for a new trial. After a hearing on November 28, 1986, the judge denied this petition. This appeal followed.

Appellant first alleges that the trial court erred in finding the evidence insufficient to overcome the presumption of legitimacy. There is a strong presumption that children who are born in wedlock are legitimate. In re Manfredi’s Estate, 399 Pa. 285, 159 A.2d 697 (1960); Commonwealth ex. rel. Spangler v. Spangler, 283 Pa.Super. 190, 423 A.2d 1053 (1980). To overcome this presumption, the burden rests on appellant to show clear, direct, convincing and unanswerable evidence of non-access or lack of sexual intercourse or impotency. Connell v. Connell, 329 Pa.Super. 1, 477 A.2d 872 (1984).

Here, appellant’s only evidence to overcome the presumption of legitimacy was that her husband was involved with another relationship while she was involved with appellee. The trial judge found this evidence did not overcome the presumption of legitimacy.

When, upon review, the issue is whether evidence presented was clear, direct, precise, and convincing, a question of law is presented and such issue is clearly for determination by appellate courts. In re Nicolazzo’s Estate, 414 Pa. 186, 199 A.2d 455 (1964). The trial court’s conclusions of law are not binding on an appellate court, whose duty is to determine whether there was proper application of law to fact by the trial court. 2401 Pennsylvania Ave. Corp. v. Federation of Jewish Agencies of Greater Philadelphia, 507 Pa. 166, 489 A.2d 733 (1985); Linnet v. Hitchcock, 324 Pa.Super. 209, 471 A.2d 537 (1984). Although this court is not bound by the trial court’s findings, where appellant’s only evidence is that her husband was involved with another relationship, this court agrees with the trial court that the evidence is not clear and convincing so as to overcome the presumption of legitimacy.

Appellant next claims that the trial court erred in not taking judicial notice of the results of the HLA blood testing requested by and stipulated to by appellee. This claim lacks merit because counsel never requested the judge to take notice of results of the blood test. See Chaplin v. Pelton, 282 Pa.Super. 487, 423 A.2d 8 (1980) (the trial court could not take judicial notice of the effect of a tax deed without the request to take such notice). In the present case, counsel stated, “I was under the impression that there might be a stipulation between counsel, but evidently there will not be a stipulation as to the admissibility. So we are prepared to go forward, Your Honor.” Counsel proceeded to trial without ever requesting the judge to take notice of the results of the blood test or the stipulation.

Upon review, an appellate court may take judicial notice of a fact to the same extent as the trial court. Goff v. Armbrecht Truck Sales, Inc., 284 Pa.Super 268, 426 A.2d 628 (1980). See also Tollman v. Florey, 179 Pa.Super. 354, 115 A.2d 752 (1955) (where a reviewing court could not take judicial notice of a medical treatise which had not been introduced into evidence). Upon review of the present case, this court cannot take notice of the results of the blood test or the stipulation of admissibility because the trial court did not take judicial notice of them and they were never offered into evidence.

As a final issue, appellant contends that the trial judge abused his discretion in refusing to grant a new trial after being informed of the after-discovered evidence. The standard regarding after-discovered evidence is whether it:

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such a nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Ball, 357 Pa.Super. 32, 34, 515 A.2d 307, 308 (1986).

There is no new evidence in this case. Appellant claims that the after-discovered evidence is the stipulation of admissibility of the blood test. The stipulation was signed by the appellee and was entered on the record seven months prior to trial. This was known to appellant. The judge did not abuse his discretion in failing to grant appellant a new trial. While the blood test result would certainly have been very helpful to appellant’s case, the court cannot be expected to remedy the failure of appellant’s counsel to adequately prepare for trial.

The order of the trial court is affirmed.

TAMILIA, J., dissents.

TAMILIA, Judge,

dissenting:

I respectfully dissent from the majority memorandum which affirms the Order of the trial court denying appellant’s petition for support. I would vacate the Order and remand for further consideration.

This appeal was taken by Leslie Ware from an Order entered by the court below denying her petition for support which had been filed against appellee, Joseph McKnight. A complaint for support was filed on July 24, 1980, against appellee by the Pennsylvania Department of Public Welfare, on behalf of minor child, Joseph McKnight. When no one appeared at the first listing, the court referred the case to Parent Locator Service. Appellee was located living in California, after which appellant was asked to file a new complaint under the Uniform Reciprocal Enforcement of Support Act (URESA), 42 Pa.C.S.A. § 6761 et seq.

On May 28, 1985, the Philadelphia Domestic Relations Section received a procedural complaint filed by appellant. Appellee appeared on December 11, 1985, for a pretrial conference, at which time he denied paternity of the child, requested blood studies and signed (according to appellant’s brief), in the presence of a hearing officer, a stipulation of admissibility of the results.

Blood was drawn from appellee on December 11, 1985 and from appellant and the child on December 18, 1985. HLA testing showed a probability of paternity of 99.47 per cent. The results were placed in the Domestic Relations Section record.

After a series of continuances, a non-jury trial was conducted on June 11,1986, at which both parties testified. At the close of trial, the judge held the matter under advisement. On July 24, 1986, the judge entered an Order denying appellant’s petition for support.

On August 6, 1986, appellant filed exceptions and a petition for reconsideration and to reopen to allow additional evidence, or for a new trial. In this petition, appellant alleged that her counsel was “mistakenly unaware” that there existed a stipulation for the admission of the blood test results, and so prior to trial, appellant’s counsel had requested appellee’s counsel to stipulate to the admissibility of the results. Appellee’s counsel had refused this request. Since the court, at a previous listing, had marked the case “Must be tried”, appellant proceeded to trial without actual evidence of the blood test as the expert was not available to support it. Appellant further argued that with a 99.47 per cent probability that appellee was the child’s father, equity called for reconsideration of the matter. The trial judge denied the petition on November 28, 1986, after a hearing. This appeal followed.

Appellant’s testimony at trial was as follows. The child, Vincent McKnight, was born August 7, 1978. The father of the child is Joseph Vincent McKnight. Appellant met McKnight on May 15, 1976, at which time she began having sexual relationships with him which continued until 1979 or 1980, after the child’s birth.. The couple lived together continuously for approximately three years between 1976 and 1979. She said she had not had sex with anyone but the appellee during the entire three year period. Beginning about three or four months following the birth of the child, the three lived with appellee’s parents for about the next six to eight months. During this entire time she was married; she had married in 1974 and was not divorced until 1982. She testified, however, that she only saw her husband once during the period she was with McKnight, and that was in 1976 on the train in McKnight’s presence. Further, appellant testified that appellee had mailed her a money order in May of 1985 in the amount of $50, and another in June in the amount of $50, for support of the child (H.T. 6/11/86, pp. 4-7, 10-11, 15-17).

Appellee testified that appellant had harassed him at his job and that was why he had sent her a $58 money order in 1985, that he had not had sexual relations with the appellant, and that the child was not his.

The trial judge held that the appellant’s failure to introduce non-exclusionary blood test results coupled with the appellant’s failure to provide sufficient evidence to overcome the presumption of legitimacy of the child compelled the court to find for the appellee.

On appeal, appellant makes three arguments. First, she argues that the lower court erred in failing to consider the results of HLA blood testing requested by and stipulated to by the appellee. The trial judge, in his opinion, points out that the counsel for appellant at trial said that although there would be no stipulation as to admissibility, he was prepared to go forward, nevertheless (Slip Op., Zaleski, J., 1/23/87, p. 2). Appellant’s counsel did not offer blood test results for admission into the record at the hearing. (Slip Op. at 2).

While appellant argues the stipulation was contained in the Domestic Relations record which was available to the judge at trial, I would find the judge committed no error in failing to take judicial notice of the stipulation and results. “[A] court may not ordinarily take judicial notice in one case of records in another case, even when the case arose in the same court and the contents of the records are known to the court.” In re Estate of Brockerman, 332 Pa.Super. 88, 95, 480 A.2d 1199, 1202 (1984) (citing Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968); Naffah v. City Deposit Bank, 339 Pa. 157, 13 A.2d 63 (1940)). “Moreover, this court will not take judicial notice of evidence of which the trial court was not requested to take judicial notice____” Brockerman, supra 332 Pa.Super. at 95, 480 A.2d at 1202. Accordingly, I would find no error in the judge’s failure, at trial, to consider the results of the blood tests.

Appellant’s next argument is lower court abuse of discretion in refusing to grant the appellant’s petition to reopen the proceeding, after the court was made aware, through post-trial motions, of the HLA blood test results. “It is well-settled that documents that are not part of the record should not be included in the reproduced record and may not be considered on appeal.” Brockerman, supra, 332 Pa.Superior Ct. at 94, 480 A.2d at 1202 (1984) (citing Auman v. Juchniewitz, 312 Pa.Super. 98, 458 A.2d 254 (1983)). As the results and the stipulation were not introduced into evidence or made part of the record at trial, they are not part of the certified record before us for review. While this Court is prevented from considering those matters in the reproduced record for those reasons, we may consider the statements of questions involved and statement of the case, as presented in appellant’s brief, when they go unchallenged in the appellee’s brief or when appellee elects not to file a brief. Rule of Appellate Procedure 2112, Brief of the Appellee, provides:

Rule 2112. Brief of the Appellee

The brief of the appellee, except as otherwise prescribed by these rules, need contain only a summary of argument and the complete argument for appellee. However, the appellee may add a counterstatement of the questions involved and a counterstatement of the case. Unless the appellee does so, or the brief of the appellee otherwise challenges the questions involved or the statement of the case as stated by appellant, it will be assumed the appellee is satisfied with them, or with such parts of them as remain unchallenged.

In this case, appellee failed to file a brief so this Court may accept the statement of questions and statement of the case propounded in appellant’s brief to be accurate, since they are unchallenged. The heart of this matter lies in the knowledge of the defendant and/or his lawyer in denying the existence of a “stipulation” in the files of the Family Court Division. Appellant’s brief alleges such a denial and the record supports this (N.T. 6/11/86, pp. 3-4). The paternity action in this case was commenced in 1980 by complaint filed through the intercession of the Department of Welfare. Through great effort, defendant was finally located and brought to court, with intervening continuations beginning in 1985. At a court conference, he denied paternity, and pursuant to Pa.R.C.P. 1910.15, exercised his right to trial and to obtain a blood test. The blood test, according to appellant (unchallenged by appellee), was completed and a stipulation form was signed by appellee for its admission into court. A breakdown occurred when the stipulation form, contained in a Family Court file in a different office of the court, was not presented in court for review. In the landmark case Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), in which the right of an indigent defendant to have a blood test performed in a paternity proceeding at state expense was mandated, the United States Supreme Court stated:

Through the judicial process, the State properly endeavors to identify the father of a child born out of wedlock and to make him responsible for the child’s maintenance. Obviously, both the child and the defendant in a paternity action have a compelling interest in the accuracy of such a determination.
The State admittedly has a legitimate interest in the welfare of a child born out of wedlock who is receiving public assistance, as well as in securing support for the child from those legally responsible. In addition, it shares the interest of the child and the defendant in an accurate and just determination of paternity.

Id. at 13, 101 S.Ct. at 2209, 68 L.Ed.2d at 237 (emphasis added).

Under the circumstances of this case, considering the substantial and irreversible possible consequences to the child in failing to have paternity determined, and to the state in assuming the burden of support, which will cost the taxpayers hundreds of thousands of dollars over the lifetime of the child, equity requires the vacation of the judgment and reopening of the case to permit a review of that evidence.

I would find, therefore, that the lower court abused its discretion in failing to grant the petition to reopen.

The general rule is that ‘a court may, in its discretion, reopen the case after a party has closed for the taking of additional testimony, but such matters are peculiarly within the sound discretion of the trial court, and a denial of [an] opportunity for a rehearing for the purpose of introducing additional evidence will not ordinarily be disturbed.’ Commonwealth v. Deitch Co., 449 Pa. 88, 295 A.2d 834 (1972). Such a ruling will be disturbed only if the court has abused its discretion. Thomas v. Waters, 350 Pa. 214, 38 A.2d 237 (1944).

In re J.E.F., 487 Pa. 455, 458, 409 A.2d 1165, 1166 (1979).

This Court has previously found it proper to reopen a case to allow the introduction of additional evidence where the evidence has been omitted by accident, inadvertence, or even because of mistake as to its necessity (Seaboard Container Corp. v. Rothschild, 359 Pa. 51, 58 A.2d 800 (1948)), but not where the omission was intentional (Ebersole v. Beistline, 368 Pa. 12, 82 A.2d 11 (1951)). We have also stated that a case may be reopened where it is desirable that further testimony be taken in the interest of a more accurate adjudication (Thomas v. Waters, supra; Massachusetts B & I Co. v. Johnston & Harder, Inc., 343 Pa. 270, 22 A.2d 709 (1941)) and where an honest purpose would be justly served without unfair disadvantage____

In re J.E.F., supra, 487 Pa. at 458-459, 409 A.2d at 1166. See also Beneshunas v. Independence Life & Accident Ins. Co., 354 Pa.Super. 391, 512 A.2d 6 (1986).

The instant case meets the above criteria. The failure of the assistant district attorney to introduce the results of the blood tests into evidence stemmed from his inaccurate belief that there had been no stipulation to their admission, rather than from an intentional tactic. Moreover, counsel for the appellee permitted the district attorney to operate under this mistake when he said at trial that there had been no stipulation. (N.T. 9/11/86, p. 4). Additionally, the court itself recognized the necessity of the disputed information to the adjudication and its probable effect on the result. “Given that the plaintiff did not present sufficient evidence to overcome the presumption of legitimacy coupled with the failure to introduce non-exclusionary blood test results compelled the court to find for defendant.” (Slip Op. at 3.)

It is the rule in paternity cases to have a blood test to aid in the resolution of those disputes, and it has been determined to be of such compelling interest to the child, the putative father and the state, Streater, supra, that, 42 U.S.C. § 655(a)(1) (1976 ed. and Supp. III) P.L. 93-647, commonly referred to as Title IV-D of the Social Security Act, permits reimbursement to the state of 75 per cent of funds expended on the operation of their approved child support plans, and regulations promulgated under authority of 42 U.S.C. § 1302, make clear that such federal financial participation is available for development of evidence regarding paternity, including the use of blood tests (45 C.F.R. § 304.20(b)(2)(i)(B) (1980)). In addition, Pennsylvania law permits a civil jury trial, pursuant to Pa.R.C.P. 1910.-28(b), if demanded by the defendant. Thus the defendant is given every protection and due process right under law to have the issue of paternity determined fairly. Under 42 Pa.C.S.A. § 6133, Authority for test, if the mother refuses to take the test, the court can enforce its Order requiring her to do so or resolve the issue against her. In most cases throughout the Commonwealth, stipulations are entered into for admission of the test results, particularly in bench trials, to avoid the additional cost of paying for expert testimony. It, therefore, became vital in this case to have the blood test admitted by stipulation if it was available, or to have the case continued to procure an expert. The trial judge should have been permitted to present those alternatives to the defendant at trial. The ‘'inadvertance” or “misunderstanding” on the part of defense counsel prevented this from occurring. The court considered this evidence to be crucial, as he stated in his Opinion. Because it would have been desirable to reopen the case so that a more accurate adjudication could have been made, I would find the trial court abused its discretion in refusing to reopen the matter. No unfair disadvantage would have resulted to appellee since he had signed the stipulation and was aware of its existence.

It is within this Court’s power to remand a case so that documents not properly before us can be considered by the lower court. Ritter v. Ritter, 359 Pa.Super. 12, 19, 518 A.2d 319, 323 (1986). See also 42 Pa.C.S.A. § 607; Anmuth v. Chagan, 295 Pa.Super. 32, 440 A.2d 1208 (1982). I would, therefore, remand this case to the lower court so that it may be reopened and a determination made as to how the information contained in the blood test results and the stipulation as to admissibility would change the trial court’s decision. Failure of the defendant to abide by the agreement would, of course, entitle the plaintiff to bring in an expert to qualify the blood test.

Appellant’s last contention is that the lower court erred in applying the presumption of legitimacy under the instant facts.

It has been the law for centuries that there is a tremendously strong presumption that children are legitimate. Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). The presumption can be overcome only by evidence of non-access of the husband, id., or by exclusionary blood tests, 42 Pa.C.S. § 6137. See Nixon v. Nixon, 354 Pa.Super. 232, 511 A.2d 847 (1986).

In Commonwealth ex rel. Johnson v. Peake, 272 Pa.Super. 340, 415 A.2d 1228 (1979), we said:

Where ... a married woman seeks to establish that someone other than her husband fathered the child for whom support is sought, she must overcome a presumption that the child is legitimate____ In order to successfully rebut the presumption of legitimacy, the evidence of non-access or lack of sexual intercourse must be clear, direct, convincing and unanswerable ..., although it is not necessary that the possibility of access be completely excluded.

Id., 272 Pa.Superior Ct. at 343, 415 A.2d at 1230 (citations omitted). This Court, in Commonwealth ex rel. Spangler v. Spangler, 283 Pa.Super. 190, 423 A.2d 1053 (1980), recognized “the presumption of legitimacy in any given case might be more or less decisive when all of the facts are examined.” Id., 283 Pa.Superior Ct. at 192, 423 A.2d at 1054. In that case we determined that the preponderance of credible testimony that there was access and sexual relations between husband and wife during the period of time when the child was conceived, plus the presumption, supported a finding of legitimacy.

In Connell v. Connell, 329 Pa.Super. 1, 477 A.2d 872 (1984), an ex-husband appealed from a determination of support and a finding of paternity. The child in that case was born during the parties’ marriage while they were living together. We said a strong presumption of legitimacy arose under those circumstances. Id., 329 Pa.Superior Ct. at 1, 477 A.2d at 872.

The case of Commonwealth ex rel. Savruk v. Derby, 235 Pa.Super. 560, 344 A.2d 624 (1975), however, involved a situation much like the instant one in that the mother of a child brought action against a man, not her husband, for support of a child. The woman had separated from her husband in 1966. Sometime in 1967 she took up residence with the putative father and lived with him through 1970. Around the end of 1968, she became pregnant and bore the child on July 30, 1969. The woman’s divorce became final in February of 1970. At some time in May, 1970, the putative father disclaimed paternity of the child and demanded that the woman leave his house. He refused to provide any additional support for the child. The Savruk court held there was sufficient evidence, based on the woman’s testimony, to sustain the lower court’s findings of non-access of the husband and of paternity of the putative father. Savruk, supra, 235 Pa.Superior Ct. at 7, 344 A.2d at 627. See also Johnson, supra.

In the case at hand, the lower court could have found non-access based on appellant’s testimony alone. This taken together with the blood test results might have justified a finding that appellant had successfully rebutted the presumption of legitimacy. Thus the blood test became crucial in determining the weight and sufficiency of the evidence as to rebuttal of the presumption of legitimacy.

I would, accordingly, remand this case to the trial court to make a determination as to paternity and support in accordance with this Dissenting Opinion.

      . This procedural history is derived from appellant’s brief; appellee failed to file a brief and the trial court Opinion contains only a very limited history. We havé no actual knowledge that the events, as set forth in appellant’s brief, are accurate.

       In its report on the 1974 Social Services Amendments to the Social Security Act, 42 U.S.C. §§ 654, 655, et al. [42 U.S.C.S. §§ 654, 655 et al.], the Senate Finance Committee stated:
      ‘In taking the position that a child born out of wedlock has a right to have its paternity ascertained in a fair and efficient manner, the [CJommittee acknowledges that legislation must recognize the interest primarily at stake in the paternity action to be that of the child____ The Committee is convinced that ... paternity can be ascertained with reasonable assurance, particularly through the use of scientifically conducted blood typing.’ S.Rep. No. 93-1356, p. 52 (1974).


author: DEL SOLE, Judge: MONTEMURO, Judge,

text:
    534 A.2d 778
    COMMONWEALTH of Pennsylvania v. Theodore McNEELY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1987.
    Filed Oct. 28, 1987.
    Reargument Denied Jan. 5, 1988.

      Douglas M. Johnson, Assistant Public Defender, College-ville, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Com., appellee.
    Before DEL SOLE, MONTEMURO and HESTER, JJ.
   DEL SOLE, Judge:

The instant appeal follows the judgment of sentence in which Appellant received six to fifteen years imprisonment for Rape, Involuntary Deviate Sexual Intercourse, Incest, Statutory Rape and related offenses.

Appellant requests this court to grant him appellate relief in the form of a new trial. Appellant attempts to substantiate this claim by advancing three counts of error allegedly committed by the trial court. They are:

1. the trial court erred in allowing a clinical social worker to testify as an expert witness as to factors in assessing the credibility of victims, and in regard to the effects of intrafamilial sexual relations on victims;
2. the trial court erred in denying defense counsel the opportunity to question a Children and Youth Service worker concerning the identity of the person who reported the abuse; and,
3. the trial court erred in denying Appellant’s motion for a mistrial when a witness made reference to Appellant’s prior incarceration.

Initially, Appellant challenges the expert testimony of Maddi-Jane Sobel which concerned the dynamics of intrafamily sexual abuse and behavorial patterns of the victims. Ms. Sobel was a clinical social worker who specialized in the area of incest and sexual abuse. Appellant does not dispute the competency of this witness to testify on this subject matter. Instead, it is Appellant’s position that Ms. Sobel’s testimony, as presented at trial, encroached upon the province of the jury.

We begin with our appellate scope of review. It is axiomatic that the admission or exclusion of expert testimony lies within the sound discretion of the trial court. Such testimony is admissible when it involves explanations and inferences not within the ordinary knowledge, intelligence and experience of the jury. A trial judge's decision to allow expert testimony will not be reversed absent a clear abuse of discretion. Commonwealth v. Gallagher, 353 Pa.Super. 426, 510 A.2d 735, 739 (1986).

After entertaining arguments by the attorneys for Appellant and the Commonwealth, the trial court permitted Ms. Sobel to testify. This decision was grounded on the trial judge’s interpretation of Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985), which addresses the admissibility of expert testimony on the dynamics of child sexual abuse and behavioral patterns of its victims. In Baldwin, we determined that such testimony, when relevant, is admissible so long as the expert does not render an opinion on the accuracy of the victim’s recitation of facts. Id., 348 Pa.Superior Ct. at 376-377, 502 A.2d at 257.

Expert testimony is relevant if it tends to make a fact at issue more or less probable and does not confuse, mislead, or prejudice the jury. Gallagher, supra, at 510 A.2d 739. Relevance is comprised of two fundamental components: materiality and probative value. “Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial.” Probative value, on the other hand, deals with the tendancy of the evidence to establish the proposition that it is offered to prove. McCormick, Evidence, § 185, at 541 (Cleary 3rd ed. 1984).

The record indicates that the trial court afforded Baldwin an overly broad reading in applying its holding to the case at bar. In overruling defense counsel’s objection to Ms. Sobel's testimony, the trial court held that such testimony was sanctioned under Baldwin simply because of its general informational value. (N.T., 4/22/86, 130-131). See also: Trial Court Opinion, 11/17/86, 4-5. Contrary to the trial court’s view, Baldwin does not provide carte blanche admissibility of expert testimony of this nature in every child sexual abuse case. Rather, before testimony is admitted on the psychological dynamics of child sexual abuse and the associated behavioral patterns of the victims, the trial judge, in every case, must determine whether it is relevant to the facts in issue.

In Baldwin, the proferred testimony by the social worker was found to be relevant to a material fact at issue since the jury could infer that certain gaps and inconsistencies in the victim’s testimony stemmed from the psychological dynamics of incest rather than from fabrication or fantasy. Baldwin, at 502 A.2d at 256. Likewise, in discussing the prejudicial impact of this testimony, we examined cases from our sister states that addressed similar issues. In State v. Conlogue, 474 A.2d 167 (Me.1984), expert testimony on the “battered child syndrome” and associated patterns of intra-family child abuse was found to be admissible to impeach the credibility of a mother’s retraction of her confession that she had abused her child. Similarly, in State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984), expert testimony on the “battered woman syndrome” was adjudged admissible where the issue was whether the defendant wife could establish a claim of self-defense for killing her husband. In this Commonwealth, we found in Gallagher, supra, that a physician’s testimony on “rape trauma syndrome” was relevant in explaining why the complainant was able to identify the appellant four years after her assault, although she had been unable to do so only two weeks after the attack. In that case, the central issue at trial was whether or not the complainant had incorrectly identified the appellant as her attacker. Id. at 510 A.2d at 738.

Most recently, in Commonwealth v. Rodgers, 364 Pa.Super 477, 528 A.2d 610 (1987), we held that in appropriate factual circumstances, testimony concerning the battered child syndrome is admissible when given by a properly qualified expert witness. Id. at 528 A.2d at 614. A diagnosis of battered child syndrome is hallmarked by a “finding of multiple injuries in various stages of healing, primarily multiple fractures, soft tissue swelling or skin bruising”. In addition, the young child is generally malnourished, with poor hygiene, and the severity and type of injury is inconsistent with the causes concerning the injury offered by parents or others who were caring for the child. Id. at 528 A.2d at 614.

We find it necessary to distinguish Rodgers from the case sub judice. In Rodgers, the proffered testimony concerned the physical manifestations of the battered child, including the nature and extent of injuries as observed and classified. Such testimony was offered to challenge the appellant’s “claim that the child ‘bruised easily’, ‘would throw a fit’, and that some of the bruises were caused by the administration of cardiopulmonary resuscitation on the child.” Id. at 528 A.2d at 615. By comparison, Ms. Sobel’s testimony addressed in a general manner the psychological dynamics of child sexual abuse, including the behavorial patterns of its victims and the parental couple interaction of families affected by incest. Unlike the expert in Rodgers, the witness’ observations did not concern the physical manifestations of the trauma experienced by the victim. Nor was it utilized to bolster the Commonwealth’s position with respect to any specific issue at trial. Based on these distinctions between the cases, we find that the decision we reach today places no restrictions on our holding in Rodgers.

The aforementioned cases are consistent on one point: the expert testimony sought to be introduced was found to have a direct bearing on a specific issue in each particular case.

In the instant case, it cannot be said that the relevance of Ms. Sobel’s statements was established either before or during her testimony. When offered as an expert witness, the prosecutor did not demonstrate how Ms. Sobers testimony was relevant to a central issue at trial. At most, the trial judge speculated that the prosecutor desired to use the witness’ statements to show the child sexual abuse victims often have difficulty remembering dates and times. (N.T., 4/22/86, 131). During the course of her testimony, the witness was permitted to deliver a virtually uninterrupted dissertation on the general characteristics exhibited by incest offenders and their victims. The testimony spanned topics including the specific behavior demonstrated by incest victims, the parental couple interaction of families affected by incest, the precipitating events leading to the disclosure of the abuse, and the conditioning continuum which influences the victim’s ability to recall specific occurrences of incestuous activity. (N.T., 4/22/86, 137-145). However, Ms. Sobel was never questioned to testify concerning any specific issue at trial. From our review of the record, it is apparent that, at the close of Ms. Sobel’s testimony, the jury was left without any indication of how the testimony could aid in its deliberation on any central issues at trial.

This particular use of expert testimony concerning intrafamily sexual abuse was not envisioned by our holding in Baldmn. It is beyond cavil to suggest that testimony of this nature is automatically relevant, and therefore admissible, in every child sexual abuse case. Rather, we emphasize that expert testimony discussing the general dynamics of child sexual abuse must be offered to further its proponent’s position on a specific issue at trial. The admission of such testimony in a vacuum, without relation to a particular factual dispute, is inappropriate. For this reason, we find it necessary to remand the instant case for a new trial.

Case remanded for proceedings consistent with this opinion.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

I dissent from the majority’s conclusion that a new trial is warranted in this case.

First, I find appellant’s claim concerning the admissibility of the Commonwealth’s expert to have been waived. Appellant’s post trial motion, in raising this issue, states only that “the trial judge failed to sustain the defendant’s objection to all the testimony of the Commonwealth’s witness Maddie-Jane Sobel.” Pa.R.Crim.P. 1123(a) reads in pertinent part that “only those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard.” (Emphasis added.) The required specificity is notably absent from appellant’s claim, thus removing it from our consideration. “[I]t is no longer merely a warning, but the law, that all issues not specifically raised in post-verdict motions are waived on appeal.” Commonwealth v. Little, 354 Pa.Super. 546, 512 A.2d 674, 678 (1986)(citations omitted).

Next, the majority has relied upon the relevance, or its absence, of the proposed testimony as justification for reversal. At no time has appellant advanced this theory, arguing rather that the testimony preempts the jury’s function as the assessor of a witness’ credibility.

Accordingly, I would affirm.

      . The dissent would hold that Appellant has waived this first issue insofar as it was not raised with the specificity required in Pa.R. Crim.P. 1123(a). In his Motion for New Trial and in Arrest of Judgment, Appellant alleges that "[t]he trial judge failed to sustain the defendant’s objection to all the testimony of the Commonwealth’s witness, Matti Jane Sobel (sic)". Unlike the dissent, we find that this statement sufficiently apprised the trial court of the nature of Appellant’s complaint with respect to Ms. Sobel’s testimony.

      . We note that there is a major distinction between the “battered child syndrome” and the "behavorial patterns of child sexual abuse victims”. Testimony relating to the “battered child syndrome” concerns the physical manifestations of the abuse. By comparison, testimony with respect to the “behavorial patterns of child sexual abuse victims” deals with the psychological dynamics of child sexual abuse and the behavorial traits of its victims.

      . By its appellate brief, the Commonwealth now argues that “Ms. Sobel’s testimony was proper and served to aid the finder of fact with understanding sexual abuse.” (Appellee’s Brief, 5). However, the record does not support the contention that the jury’s understanding of sexual abuse was a central issue at trial. Thus, the purely informational value of the witness’ testimony cannot alone establish its relevance.

      . Because of the decision we reach today on Appellant's first issue, we need not address the remaining two arguments.