author: HUDOCK, Judge:

text:
    627 A.2d 741
    COMMONWEALTH of Pennsylvania, Appellee, v. Marcelette MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1993.
    Filed June 4, 1993.
    Reargument Denied July 30, 1993.

      Regina B. Diamond, Philadelphia, for appellant.
    Andrew Gibson, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before CAVANAUGH, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after she was found guilty, in a non-jury trial, of two counts each of third-degree murder, recklessly endangering another person, and endangering the welfare of a child. Timely filed post-verdict motions were denied by the trial court, and Appellant was sentenced to an aggregate six to twelve year period of incarceration, followed by a concurrent fifteen year probationary period. These convictions arose from the starvation deaths of Appellant’s seven-month-old twin daughters. This direct appeal followed. We affirm.

The facts concerning the discovery of the dead infants were summarized by the trial court as follows:

On December 24, 1990, Police Officer George Hicks went to 5339 Florence Ave. in the City of Philadelphia, to investigate a report of two dead babies who were suspected victims of child abuse. Officer Hicks, a 15 year veteran of the police department, was assigned to the sex crimes unit. It is that unit of the Philadelphia Police Department which investigates instances of child abuse. He arrived at the Florence Ave. address at approximately 4:00 p.m. That location is a rowhouse where [Appellant] was residing with her mother, and seven children. Upon entering the row-house, the officer observed [Appellant] sitting on a sofa in the living room, with five of her children. Three or four uniformed police were already on the scene, but [Appellant] was not restrained in any way. The officer then proceeded to the second floor front bedroom where the bodies of two infants were located.
When the officer arrived in the upstairs bedroom he saw two dead infants on the bed. Their skin looked dried and wrinkled, and their stomachs were discolored. A uniformed police corporal, the medical examiner, and his investigator were also in the room at this point. The medical examiner told Hicks that the children appeared to have died from dehydration, and malnutrition, and that there were signs of some decay. [Appellant’s] mother was also downstairs, and the officer did not know who lived in the house, or who was responsible for the care of the children.

Trial Court Opinion, at pp. 2-3 (citations to record omitted).

Appellant raises the following issues:

I. Was the evidence insufficient to support a verdict of murder in the third degree, where:
(A) The Commonwealth did not prove beyond a reasonable doubt that [Appellant] acted with malice, and
(B) The Commonwealth did not prove beyond a reasonable doubt that [Appellant] intended to cause serious bodily injury or death, and
(C) The state of mind involving the indifference to consequences and/or the value of human life applies equally to involuntary manslaughter and third degree murder; when either offense could apply, must not [Appellant] must be given [sic] the benefit of the doubt and therefore be convicted only of the offense involving a lesser grade of culpability?
II. Did the trial court err in denying [Appellant’s] motion to suppress the first statement, where:
(A) There was no probable cause to arrest her for recklessly endangering another person or endangering the welfare of children, and
(B) That arrest was in violation of Pa.R.Crim.P. § 101, which provides, inter alia, that a misdemeanor arrest may only lawfully be effected if the misdemeanor was committed in the presence of a police officer making the arrest, or such arrest without a warrant is specifically authorized by statute, or the arresting officer has a lawful arrest warrant?
III. Did the trial court err in permitting Dr. Heilman, who is qualified only as a pathologist, to interpret medical reports relating to the development of infants, and to offer opinions relating to that development?

Appellant’s Brief at p. 3. We will address these issues in the order in which they are raised.

The standard of review employed in determining whether the evidence was sufficient to support a conviction is well-settled:

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the [fact-finder] could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. (Citations omitted).

Commonwealth v. Smouse, 406 Pa.Super. 369, 376, 594 A.2d 666, 669 (1991), (quoting Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). It is with this standard in mind that we review Appellant’s first issue.

As noted above Appellant claims that the Common-' wealth did not present sufficient evidence of malice. “To support a [third degree] murder conviction, the Commonwealth must prove [a defendant] committed the killing with malice aforethought.” Commonwealth v. Pigg, 391 Pa.Super. 418, 425, 571 A.2d 438, 441 (1990), alloc. den., 525 Pa. 644, 581 A.2d 571 (citing Commonwealth v. Reilly, 519 Pa. 550, 549 A.2d 503 (1988)). This Court has recently reiterated the definition of malice:

Malice consists of a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Commonwealth v. Drum, 58 Pa. 9, 15 (1868); see also Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981) ... [Moreover] malice may be found where the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause serious bodily injury. Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982).

Commonwealth v. Cottam, 420 Pa.Super. 311, 342, 616 A.2d 988, 1004 (1992) (citations omitted). As is readily apparent from the above definition, the Commonwealth was not required to prove Appellant’s intent to harm her daughters as part of its proof that she acted with malice. Thus, Appellant’s claim to the contrary is without merit.

Appellant also claims that the issue presented is whether her actions or inactions were criminally negligent (the level of culpability that would support a conviction of involuntary manslaughter) or malicious. Appellant claims that the record supports no other conclusion than the fact that she simply failed in her duty to care for her children. Appellant then asserts that, as her omission is not willful, and arose out of neglect only, it is manslaughter. We disagree.

In Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975), our Supreme Court upheld the second degree murder conviction of a defendant who, while intoxicated, struck and killed a minor on a bicycle. In rejecting the defendant’s argument that a deliberate intent to harm was required to support a second degree murder conviction, the Supreme Court noted:

[Taylor] would have us find that malice is not present unless it is established that the victim was “intentionally run down” by the operator of the vehicle. Such a view fails to recognize the distinction between first and second degree murder. The presence of a deliberate intent to kill while a prerequisite for murder in the first degree is not required for murder in the second degree. As pointed out in Commonwealth v. McLaughlin, 293 Pa. 218, 222, 142 A. 213, 215 (1928), malice is present either where it is shown that the accused intended to strike the victim or “was recklessly disregardful of [his] safety, ____” The argument of [Taylor] fails to perceive that between the recklessness or culpable negligence necessary to support the charge of involuntary manslaughter, see Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971), and the specific intent to kill which is a prerequisite of murder of the first degree, there is a class of wanton and reckless conduct which manifests such an extreme indifference to the value of human life which transcends the negligent killing and reaches the level of the malice which supports a verdict of murder in the second degree.

Id., 461 Pa. at 564, 337 A.2d at 548. See also Commonwealth v. Pigg, supra (third-degree murder convictions of drunk driver upheld).

A third degree murder conviction for failure to provide for the nourishment and care of a child has been upheld by this Court on a previous occasion. In Commonwealth v. Smith, 389 Pa.Super. 606, 567 A.2d 1070 (1989), alloc. den., 526 Pa. 648, 585 A.2d 468 (1990), this Court upheld the third degree murder and voluntary manslaughter convictions of Smith, a habitual cocaine user, where the death of her three-year-old daughter was caused by malnutrition. In rejecting Smith’s claim that there was insufficient evidence that she caused her daughter’s death, this Court noted that the medical examiner testified to a reasonable degree of medical certainty that the cause of death was malnutrition, rather than a natural cause, and that there was sufficient evidence on the record to show that Smith did more than simply fail in the duty to care for her child. Namely, the door to the room in which the dead child was found was locked from the outside and “the inside door knob was found next to the decedent which is strong circumstantial evidence that [Smith] locked the child in the room before she died.” Id., 389 Pa.Super. at 610, 567 A.2d at 1072.

In her post-verdict motions and her summary of argument on appeal, Smith alleged that the evidence did not support a finding of malice necessary to support a conviction for third degree murder. Because this issue was not supported with argument in the body of Smith’s brief, this Court found it to be waived. In a footnote, however, this Court stated that in the absence of waiver it would find the issue to be meritless and would have affirmed the disposition of the issue on the basis of the trial court opinion.

In an attempt to distinguish Smith, Appellant asserts that there was evidence that Smith had a history of neglecting her daughter; when the child was fed, she was only fed once a day, Smith often screamed and cursed at the child, the neighbors often heard the child crying, that Smith locked the child in the room, and, that after Smith vacated the apartment, she left the corpse behind. Like the trial court, we are not persuaded by these distinctions. As in Smith, the medical examiner in the present case clearly testified that the cause of the infants’ deaths was dehydration and malnutrition. Given the low weight of the infants’ organs, the medical examiner concluded that the malnourishment occurred over a protracted period of time. Moreover, Appellant herself admitted that she thought her daughters were “awfully thin” and that she knew she could go to a clinic to receive free formula. The fact that Smith locked her child in a room and screamed and cursed at her is insufficient to distinguish Smith from the present case, considering that Appellant’s daughters were only seven-months-old and could not possibly leave the room in which they were found.

We are not unmindful of the fact that Appellant is a cocaine addict, but this factor does not alter our conclusion that her negligence rose to such a level as to constitute wanton and reckless conduct that demonstrates an extreme indifference to the value of human life, i. a, malice. Commonwealth v. Taylor, supra. Just as the intoxicated operators of the vehicles which killed others in Commonwealth v. Taylor, supra, and Commonwealth v. Pigg, supra, cannot be said to have intended the consequences of their acts, so too Appellant cannot escape the unintentional consequences of her egregious inaction. Appellant’s first claim is without merit.

Appellant next claims that the trial court erred in failing to suppress her initial statement to the police. Our standard employed when reviewing the denial of a motion to suppress is also well-settled:

In reviewing an order denying a motion to suppress evidence we must determine whether the factual findings of the lower court are supported by the evidence of record. Commonwealth v. Espada, 364 Pa.Super. 604, 607, 528 A.2d 968, 969 (1987). In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defendant as, fairly read in the context of the record as a whole, remains uncontradicted. Id. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error. Id.

Commonwealth v. Frank, 407 Pa.Super. 500, 502, 595 A.2d 1258, 1259 (1991).

The trial court summarized its factual findings regarding the circumstances of Appellant’s first statement to the police as follows:

[Officer] Hicks then went downstairs, and told [Appellant] that her other children were going to be taken to be examined to be sure they were alright. He also told her the police “... were investigating the deaths of her children, and we were going to try to determine what led up to the deaths of her children.” [N.T, 5/20/91] at 13. [Appellant] “seemed to think that was fine.” Id. She asked if her children would be taken away, and the officer said he didn’t know “if they were going to be admitted.” [Id.] He explained, “we had to take them to the hospital and let the doctor check them out.” Id. at 14. [Appellant] agreed to this. Police then helped [Appellant] find suitable clothing for her remaining five children. Hicks further explained that, after the children were taken to the hospital, she would be taken to the Sex Crimes Unit to try to determine the course of events that led up to the deaths of her babies. During the conversation, and while they were getting clothing for the children, [Appellant] had access to a telephone. [Appellant], agreed, and accompanied the officer to a waiting police van which had been called to transport her to the Sex Crimes Unit.
Hicks went with the children to the hospital and then proceeded to the Sex Crimes Unit where he met [Appellant] in the Operations Room. Hicks then asked [Appellant] to accompany him to a nearby interview room where he took a written statement from her after properly warning her of her rights. In her statement, she admitted that she was responsible for the care and feeding of the children, and that they resided at the Florence Avenue address with her and her mother. Although Officer Hicks suspected that [Appellant] had a drug problem at the time of the interview, [Appellant] denied using drugs.
When [Appellant] completed the statement, Hicks informed her that she was under arrest for various misdemeanor charges.... In her statement, [Appellant] said that she had checked on the children the morning of [December] 24th. This, combined with information which the officer had received from the medical examiner that the children had been dead at least 12 hours or more, the lack of food in the house, and the condition of the remaining children caused him to place, [Appellant] under arrest. Until [Appellant] admitted that she was responsible for the children, the officer had not known who was responsible for them, or where they lived. He testified credibly that, “I may have taken her to my headquarters, she may have told me, T don’t live there. My children all live with my mother. I just stopped in to visit. I don’t have any control.’ ” Id. at 59. Following the arrest, paperwork was turned over to homicide.

Trial Court Opinion at pp. 3-5 (except were noted, citations to record and footnotes omitted).

Appellant claims that she was under arrest when she was taken to the Sex Crimes Unit building for questioning, was more likely than not handcuffed prior to being transported, was viewed as a suspect, and was not permitted to leave. Under these circumstances, Appellant claims that she was detained against her will, that there was no probable cause to arrest her, and thus that any statement she gave as a product of the unlawful arrest should have been suppressed. The trial court, as noted above, found credible the testimony of Officer Hicks that he did not know prior to her statement that she was responsible for the welfare of her daughters. The trial court further found that Appellant agreed to accompany Officer Hicks to the Sex Crimes Unit, and that Appellant was only placed under arrest after this statement was given.

Upon review, we find that the factual findings of the trial court are supported by the record. Moreover, under the factual circumstances found by the trial court, we cannot conclude that the trial court erred in its legal conclusions and its subsequent decision to deny suppression of the statement. An arrest occurs with any act that indicates an intention to take a person into custody and subject him or her to the actual control and the will of the person making the arrest. Commonwealth v. Frank, supra. An arrest may be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Monahan, 378 Pa.Super. 623, 549 A.2d 231 (1988), alloc. den., 522 Pa. 574, 559 A.2d 36 (1989). In determining whether an arrest occurred, the test employed is an objective one; it depends upon the reasonable impression conveyed to a person seized and not the subjective view of the police officers or the person being seized. Commonwealth v. Lagana, 517 Pa. 371, 537 A.2d 1351 (1988).

In the present case, the trial court found that Appellant agreed to go to the Sex Crimes Unit. While Appellant was transported to the Sex Crimes Unit in a marked police van, the trial court did not find this factor to be determinative. These facts are sufficient to support the trial court’s conclusion that Appellant was not under arrest at the time she gave her first statement. See Commonwealth v. Rodriguez, 330 Pa.Super. 295, 479 A.2d 558 (1984) (under all circumstances found and credited by suppression court, action in taking defendant to homicide headquarters, placing him in a small interrogation room, without windows and with the door closed for thirty-five minutes and giving him Miranda warnings did not constitute an arrest where defendant voluntarily accompanied officers, arrived in an unmarked police car, and was not handcuffed or restrained at any time); see also Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981) (defendant was not under arrest when he accompanied police to barracks, waived his Miranda rights, and was questioned for ninety minutes; there was nothing within the record which would indicate the police attempted to subject defendant to their will and control before defendant admitted his involvement in the crime). Thus, we find Appellant’s second issue to be without merit.

Appellant’s final claim is that the trial court erred in allowing the Commonwealth’s expert, Dr. Heilman, who is a forensic pathologist, to testify as to the physiological development of children. The decision to admit or exclude expert testimony lies within the sound discretion of the trial court; the determination of the trial court will not be reversed unless an abuse of that discretion is found to exist. Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988). Moreover, we note that when the court is sitting as fact-finder, it is presumed that inadmissible evidence is disregarded and that only relevant and competent evidence is considered. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). Without citing authority to support the assertion, Appellant claims that knowledge of the physiological development of children is limited to the expertise of a pediatrician or an expert in pediatric development. Appellant further supports this claim by stating that the trial court placed great emphasis on Dr. Heilman’s testimony regarding the low organ weights of the infants to support the third degree murder convictions despite the fact that they were born prematurely. We do not agree and find that the trial court did not err in allowing the testimony.

In Pennsylvania, a liberal standard is applied to expert testimony. As this Court has stated:

A witness who has any reasonable basis of special knowledge on a subject may testify [as an expert]. Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981). Under Pennsylvania law, a physician may testify as an expert in a field outside his own specialty. Arnold v. Loose, 352 F.2d 959 (3d C.1965), reh. den. (construing Pennsylvania law in an action brought under the Wrongful Death and Survival Acts). Once an expert shows some factual basis for his opinion, his testimony is admissible. Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979); Commonwealth v. Oates, 269 Pa.Super. 157, 409 A.2d 112 (1979). A physician need not have any field of specialization in order to be competent to offer expert testimony. Workmen’s Compensation Appeal Board v. Branch Motor Express, 18 Pa.Commw. 262, 334 A.2d 847 (1975).

Commonwealth v. Owens, 321 Pa.Super. 122, 127-28, 467 A.2d 1159, 1161-62 (1983). Upon review, we find that the trial court correctly found the testimony of Dr. Heilman admissible. Initially, we note that the only pertinent question objected to was with regard to how long it would take the premature twins to “catch-up” in body weight to that of a full term infant. Over objection, the trial court allowed Dr. Heilman to respond. Dr. Heilman responded that the twins should have attained normal weight within a period of one year. No objection was lodged as to the testimony that the twins had low weight organs, that an internal examination indicated extensive starvation and gross dehydration, or that, after birth, they were initially gaining weight. We also note that Dr. Heilman’s testimony was corroborated by the medical records presented. Put differently, there was ample medical evidence — even excluding the one objectionable statement— from which the trial court could have concluded that the starvation and dehydration of the infants was protracted. Finally, as to the objectionable statement, the fact that Dr. Heilman was a forensic pathologist, rather than a pediatrician or expert in pediatric development, goes to the weight of the evidence rather than its admissibility.

Judgment of sentence is affirmed.

BECK, J., concurs in the result.

      . 18 Pa.C.S. § 2502(c).

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 4304.

      . At the time Taylor was decided, second degree murder contained the same elements as present in third degree murder. Taylor was also convicted of driving under the influence of alcohol.

      . Wc note that Appellant cites no authority for the proposition that, because the state of mind involving indifference to consequences and/or the value of human life applies equally to involuntary manslaughter and third degree murder, she should be given the benefit of the doubt and convicted only of the offense involving a lesser degree of culpability. Moreover, this statement ignores the distinction recognized above in Taylor, that conduct can rise above criminal negligence and constitute malice.
      We also note that Appellant cites several cases wherein the respective defendants were only convicted of involuntary manslaughter even though the facts would appear to be more egregious than the neglect of her daughters. Reliance on these cases is misplaced, however, because none of those defendants were convicted of third degree murder, and thus evidence of malice was not discussed. For much the same reasons, we find that several cases from our sister jurisdictions cited by Appellant are factually distinguishable.

      . Officer Hicks accompanied Appellant's other five children to the hospital for examination. He left Appellant with other members of the police and directed that she be taken to the Sex Crimes Unit. Upon cross-examination, Officer Hicks stated his belief that Appellant was not handcuffed for the ride down to police headquarters. Officer Hicks did concede that it was standard procedure for someone to be handcuffed when they were put in the police van and that he left no order that Appellant was not to be cuffed. Although defense counsel inquired as to whether, under these circumstances, Officer Hicks would expect that Appellant would be handcuffed, the question was twice objected to by the Commonwealth and the objection was twice sustained by the trial court. Upon further inquiry by the trial court, Officer Hicks stated that he had no specific recollection as to whether Appellant was handcuffed in the van.

        Appellant was twice arrested in the present case. As found by the trial court, Appellant was initially arrested after her conversation with Officer Hicks in November, 1990. Appellant was subsequently arrested in January, 1991, on homicide charges. The majority of defense evidence presented at the suppression motion concerned a statement made to the police after her second arrest; a statement that was ultimately suppressed. After cross-examination as to the alleged coercive nature of the second police interview, the Commonwealth asked Appellant if she was handcuffed when she first spoke with Officer Hicks at the Sex Crimes Unit. In response, Appellant ambiguously stated that she was handcuffed "at one time”; she did not clarify at what time she was handcuffed. (N.T., 5/20/91, at p. 177). We also note that Appellant did not testify that she was handcuffed at any time upon direct examination. The trial court found that Officer Hicks testified credibly. Thus, we can only conclude that the trial court found Appellant's statement upon cross-examination to be either too ambiguous or incredible.

      . In its opinion the trial court makes the following statement: "The facts sub judice illustrate the fine line that can sometimes separate ‘detention,’ and arrest.” Trial Court Opinion at p. 14. The trial court then cites to the cases of Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985) and Commonwealth v. Horner, 497 Pa. 565, 442 A.2d 682 (1978). Both of these cases discuss the time at which a police detention becomes a custodial interrogation such that a suspect is required to be given Miranda rights. Appellant’s claim is that she was under arrest as soon as she was transported to the Sex Crimes Unit. Moreover, it is undisputed that Appellant was informed of her Miranda rights prior to her first statement. The mere giving of Miranda warnings does not signal arrest, Commonwealth v. Rodriguez, 330 Pa.Super. 295, 479 A.2d 558 (1984). Thus, these cases, while analogous in some respects, do not address the actual issue on appeal.

      . We also note that the Commonwealth’s evidence at the hearing on the suppression motion included the fact that it took twenty-five minutes to complete the statement, and that Officer Hicks offered Appellant refreshment or a break during the course of the interview.
      Finally, we note that while Officer Hicks admitted, upon cross-examination, that he never informed Appellant that she was free to leave, contrary to Appellant’s assertion on appeal, Hicks never testified that Appellant was not free to leave. Moreover, Appellant’s own testimony at the suppression hearing does not indicate that she ever expressed a desire to leave or to end the interview.

      . The trial court agreed with Appellant that her warrantless arrest was in violation of Pa.R.Crim.P. 101, inasmuch as it was for a misdemeanor not committed in the officer’s presence — endangering the welfare of a child. But because it found that the first statement was made prior to the arrest, the illegality of the subsequent arrest did not require the suppression of that statement.

      . Other objections were made to the admission of photographs of the deceased infants and to the Commonwealth’s final question to Dr. Heilman as to whether the girls would still be alive if they were fed. The former objections were overruled by the trial court and the latter objection was sustained.


source: Caselaw Access Project

author: CAVANAUGH, judge:

license: Public Domain

text:
    627 A.2d 750
    Angelo and Jessie PASCALE, Appellants, v. HECHINGER COMPANY OF PA., Taylor Ramsey Corp., and Angelo Pascale.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1993.
    Filed June 28, 1993.

      Barry W. Krengel, Philadelphia, for appellants.
    Benjamin E. Zuckerman, West Conshohocken, for Hechinger, appellee.
    Paul J. Toolan, Philadelphia, for Taylor Ramsey, appellee.
    Albert P. Massey, Frazer, for Pascale, appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   CAVANAUGH, judge:

This appeal is from a judgment for appellees-defendants entered after a jury found in their favor. Appellant-Jessie Pascale fell from a set of stairs purchased from appelleeHechinger Company of Pennsylvania (Hechinger). The Paséales sued Hechinger on breach of warranty, strict liability and negligence grounds alleging that the component parts of the stairs were in a defective condition when the Paséales purchased them from Hechinger. Hechinger joined the manufacturer of the wood, Taylor Ramsey Corporation, as an additional defendant. Hechinger also filed a cross-claim against Angelo Pascale alleging that he installed the stairs in a negligent manner. After a three-day trial, the jury found that the wood was not defective and that Angelo Pascale was negligent and that his negligence was a substantial factor in causing the harm suffered by Mrs. Pascale.

The lower court’s opinion concisely described the circumstances surrounding Mrs. Pascale’s injury, as developed by the evidence presented:

On January 27, 1987 plaintiffs’ Jessie Pascale and her husband Angelo went to defendant Hechinger’s to purchase wood for the construction of a staircase. Mrs. Pascale was the chairperson of the Girl Scout cookie sale. The stairs would be used to gain access to a trailer which contained boxes of Girl Scout cookies. The trailer was parked in the driveway of the Pascales’ residence.
When Mr. Pascale arrived at Hechinger’s, he was directed to an area covered by a roof and enclosed by a fence. Mr. Pascale proceeded to examine the wood he would use in the construction of the steps. After checking for warps and defects, he purchased two pre-cut side sections and five treadboards. He constructed the steps and positioned the top step level with the trailer. The steps were not fixed to the trailer nor to the driveway, but just propped against the rear of the trailer.
Mrs. Pascale used the steps to enter the trailer for approximately two and one-half weeks without mishap. But on February 16, 1987 as she exited the trailer and placed her right foot on the center of the first step, she felt the stairs give way. Her body landed on the third step, splitting it upon impact. As a result of the fall, she sustained a back injury for which she underwent surgery.

Lower Court Opinion, September 10, 1992 at 1-2.

The following five questions are presented for our review:

1. Whether the Court erred in failing to charge the jury that a manufacturer or supplier of products is the guarantor of its safety.
2. Whether the Court erred in admitting into evidence the experiment conducted by defendant’s expert witness which was performed on the eve of his testimony.
3. Whether the Court erred in bifurcating plaintiffs’ counsel’s closing argument after conducting the entire trial without bifurcating any issues.
4. Whether the Court erred in failing to conduct an assessment of damages hearing against additional defendant Angelo Pascale because additional defendant Angelo Pascale failed to plead or raise the statute of limitations defense in his pleadings.
5. Whether the Court erred in prohibiting plaintiffs from introducing testimony concerning the defendants’ failure to warn and provide assembly instructions of the steps.

The first issue relates to the charge to the jury on strict liability. The Pascales argue that the lower court erred when it refused to charge pursuant to the Suggested Standard Jury Instructions that a manufacturer or supplier is a guarantor of a product’s safety. Relying upon the favorable citation to this instruction by the supreme court in Azzarello v. Black Brothers Company, Inc., 480 Pa. 547, 559-560 n. 12, 391 A.2d 1020, 1027 n. 12 (1978), appellants contend that the omission of the portion of the suggested instruction that the supplier of a product is the guarantor of its safety requires a finding that the charge failed to accurately portray the law.

As a general rule, refusal to give a requested instruction containing a correct statement of the law is grounds for a new trial unless the substance of it has been covered in the court’s charge. Ottavio v. Fireboard Corporation, 421 Pa.Super. 284, 285, 617 A.2d 1296, 1302 (1992) (en banc). Therefore, a jury charge must be examined in its entirety to determine if there was prejudicial error. Harkins v. Calumet Realty Company, 418 Pa.Super. 405, 416, 614 A.2d 699, 705 (1992).

The portion of the court’s charge dealing with strict liability is as follows:

Now, I’m going to instruct you concerning what we call strict liability and negligence. Let me take the strict liability issue first. That has to do with the defect claim here.
The sellers and manufacturers of a product are liable for the injuries caused to a plaintiff by a defect in the article which existed when the product left the possession of the seller. Such liability is imposed even if the seller has exercised all possible care in the preparation and sale of the product. The product, therefore, must be provided with every element necessary to make it safe for use and without any condition that makes it unsafe for use.
If you find that the product at the time it left defendants’ control lacked any element necessary to make it safe for use or contained any condition that made it unsafe for use, then the product was defective and the defendant is liable for all harm caused by that defect.
I have some points for charge. I am going to read eighteen and nineteen. A product is not in a defective condition when it is safe for normal use and handling. The manufacturer of a product is not liable for all injuries, only those caused by a product which is unsafe. An unsafe product is one which left the manufacturer’s control, lacking any element necessary to make it safe for its intended use.
Liability is not imposed on a manufacturer or a seller for failing to make an already safe product somewhat safer. Or for failing to utilize the safest of all possible designs. In other words, if the plaintiff was using the product in a way not intended by the manufacturer or the seller, you may consider this fact when determining whether the defendant; that is, the manufacturer and the seller are responsible for the plaintiffs injuries. It is important to bear in mind that the law does not require the manufacturer or the seller to make and sell a product which is incapable of causing harm.
A seller is responsible only for such defects as exist at the time the product leaves his control. The seller is not liable for defective conditions created by substantial changes in the product occurring after the product has been sold.

Notes of Testimony, October 25, 1991 at 276-278.

We find that the charge adequately expresses the law regarding supplier’s liability for defects. The one portion of the suggested instruction regarding the supplier’s status as a guarantor was properly omitted by the lower court since use of the term “guarantor” could cause confusion. The explanation of the law was complete and left no gaps simply because the word “guarantor” was not used.

The lower court properly relied upon Butler v. Kiwi, S.A., 412 Pa.Super. 591, 604 A.2d 270 (1992) for the proposition that it need not follow the standard jury instruction when the charge accurately and fairly apprises the jury of the relevant law. A new trial is not required on the basis of the jury charge.

The second issue is whether evidence of an experiment performed by a defense expert witness was properly admitted. Appellants posit two reasons for exclusion of the portion of Craig D. Clauser’s testimony relating to his conducting an experiment with pieces of wood on the night before he appeared in court. First, it is contended that the testimony exceeded the scope of the expert’s report; second, that Hechinger failed to properly authenticate the experiment.

Craig D. Clauser was presented as a defense expert witness by Hechinger. He had submitted a pre-trial report in which he took issue with the conclusion of plaintiffs’ expert that a defect in the stair side rail caused Mrs. Pascale’s fall. Mr. Clauser’s report concluded that a crack in the side rail was not the cause of the collapse of the stairs, but rather was a result of the collapse. Mr. Clauser’s report attributed the collapse to the stairs moving away from the trailer against which they were propped. Since the stairs were not secured at either the top or the bottom, they came away from the trailer and collapsed while Mrs. Pascale was on the top step.

At trial, Mr. Clauser testified consistent with his report. He went on to testify that if the accident had been caused by a crack in the side rail, the steps would not have been in the condition they were. Specifically, he pointed to the angle of a nail in the damaged step that would not occur if stress from a cracked side rail had caused the step to break. In an effort to demonstrate this disproof of the theory of plaintiffs’ expert, Mr. Clauser referred to a test on other wood he had performed the night before he testified in court. The following exchange then occurred:

[Mr. Clauser:] As part of my investigation here, I had gotten some wood identical — as close to — the same kind of side rails from Hechinger’s. I had them back at the lab. Last night, I took a piece—
MR. KRENGEL: Objection. That was not part of the report. This experiment was obviously just done last night.
MR. MAYERS: Your Honor, I believe Mr. Clauser is only using this piece of wood to demonstrate the nail hole which is part of his report and he’s basing it in part on Dr. Medoffs testimony yesterday. It was only being used for illustrative purposes. It certainly was covered in the report concerning the straightness of the nail hole.
MR. KRENGEL: It’s being used as a test to supplement the report at the last minute, which I cannot cross-examine or be prepared for. There was no test in that report, just observations and comments.
THE WITNESS: I can describe it, Your Honor.
THE COURT: What did you say?
THE WITNESS: I can describe what happens without this.
THE COURT: He seems not to need it. What’s your position? Do you want to pursue it or not?
MR. MAYERS: I would like to pursue it, Your Honor, if it’s going to be illustrated to the jury.
THE COURT: Then the motion is denied. The objection is overruled. Go ahead.
THE WITNESS: What I said wás that if this piece is forced downward and slides across here, that nail has to bend. All I was trying to say what I did this. I broke a piece off of the side rail I have in the lab, then put them beck together as they were in that hypothetical description of how it actually failed, and put the nail down through this surface into this surface, and then drove this piece downward so it slid across here. And what happens is the nail clearly bends quite a bit.
This is the portion of the nail that was down into the side rail. And it rips the nail hole almost a half an inch long rip here underneath. If you go and look at the underside of the nail hole on the similar piece on the incident steps, that hole is perfectly tight. It’s a round little hole. There’s only just a nail coming out of it and there’s no deformation to it (indicating).
So I guess I’m making a short story pretty long. It’s not possible that this fracture occurred while she was standing on the step. The fracture occurred when the steps fell down and the impact broke it. I’m sorry to be so long winded.

Notes of Testimony, October 25, 1991 at 194-196.

The admission of testimony is a matter entrusted to the sound discretion of the trial court. Dolan v. Carrier Corporation, 424 Pa.Super. 615, 623 A.2d 850 (1993). Absent an abuse of discretion or an error of law, allowance of a defense expert’s testimony to refute that offered by an expert for plaintiff will be upheld on appeal. Id. Experts may testify at trial about matters which are within the fair scope of a pretrial report. Dible v. Vagley, 417 Pa.Super. 302, 612 A.2d 493 (1992); Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc., 348 Pa.Super. 285, 502 A.2d 210 (1985). The avoidance of unfair surprise to an adversary concerning the facts and substance of an expert’s proposed testimony is the primary purpose of the rule requiring that testimony be within the fair scope of the pretrial report. Id.; Clemons v. Tranovich, 403 Pa.Super. 427, 589 A.2d 260 (1991).

The report submitted on Clauser’s behalf contained the following description of the physical evidence and critique of the report of plaintiffs expert, Howard P. Medoff:

I believe Mr. Medoffs opinion in this matter is incorrect and is not supported by the facts in evidence. Mrs. Pascale’s fall could not be a result of failure of the side rail, since that failure could not cause collapse of the stair set. The top step is constrained from moving in a downward direction, even with the weight of a person standing upon it, by the nail spanning the fracture. That conclusion is supported by the observations that neither the protruding nail on the right side nor the two nails on the left side of the top step were bent or showed any evidence of twisting. Furthermore, the lower fracture surface of the right side rail exhibited no damage to the nail hole or fracture surface itself which would be evidence of downward movement of the step.

This portion of the pre-trial report discusses the location of the nails supporting the top step and their condition subsequent to the collapse of the steps. The demonstration, i.e., display of a piece of wood with nails in it, at trial is within the fair scope of the pre-trial report. Appellees were aware of the opinion held by Mr. Clauser concerning the condition of the top step and the effect breaking in a downward direction would have upon the supporting nails. There was no surprise contained in Mr. Clauser’s trial testimony regarding his rejection of Mr. Medoffs theory of causation and his reasons for doing so.

The use of the piece of wood at trial was permissible as an illustrative tool to demonstrate the basis for Mr. Clauser’s opinion. It was within the fair scope of the pre-trial report and did not prejudice the appellant’s counsel in the cross-examination of Mr. Clauser.

The second basis propounded for the exclusion of Mr. Clauser’s testimony concerning the piece of wood is that the wood and nails were the subject of an experiment the night before presentation of Mr. Clauser’s testimony and the results were not authenticated. Appellants argue that the record does not establish that conditions under which Mr. Clauser tested the wood and nails were substantially similar to the staircase involved in the accident.

Generally, demonstrative evidence is admissible if its probative value outweighs the likelihood of improperly influencing the jury. Leonard by Meyers v. Nichols Homeshield, Inc., 384 Pa.Super. 1, 557 A.2d 743 (1989); Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986). Conditions must be sufficiently close to those involved in the accident to make the probative value of the demonstration outweigh its prejudicial effect. Leonard, supra.

In support of their position, appellants cite inter alia, cases involving chemical and electronic laboratory procedures. In re: Clover Bar, Inc., 203 Pa.Super. 11, 198 A.2d 366 (1964) involved the chemical analysis ^ of whiskey. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990) excluded a videotape of an EEG obtained through laboratory-induced intoxication. These instances are not comparable to an expert’s demonstration at trial using a piece of wood and nails. Although a jury may not be familiar with the precise engineering concepts involved in analysis of stress on steps caused by weakness in the component wooden parts, the physical properties of a set of wooden steps are more likely to be a matter within their knowledge than the chemical composition of whiskeys and interpretation of an EEG. The jury was presented with sufficient facts to determine if the demonstration by Mr. Clauser adequately resembled the wooden steps involved in the accident. Experiments showing general properties of materials are admitted without confining the experiments to conditions surrounding the litigated conditions. Leonard supra, 384 Pa.Super. at 9, n. 6, 557 A.2d at 747, n. 6. Whether a nail bends up or down or remains stable in a piece of wood is not a matter of such technical intricacy that requires a finding that the authentication requirement has not been fulfilled in this case. Mr. Clauser testified that he used wood of the same type as that in the staircase. Given the purpose of the demonstration, i.e., to show the effect on the nails of a wooden board breaking downward, we find that the conditions employed by Mr. Clauser were sufficiently similar to the actual occurrence to allow admission of this evidence.

The third issue for review is whether the trial court erred in bifurcating the trial at the close of the testimony. The court bifurcated closing argument so that the issues relating to liability were argued without reference to issues of damages. After closing arguments, the jury retired for deliberation of special interrogatories relating to liability. Since the verdict was in favor of the defendant-Hechinger and additional defendant-Taylor Ramsey and since the verdict on the cross-claim against Angelo Pascale was ruled barred by the statute of limitations, the damages issues were never presented to the jury.

Appellants argue on appeal that because both the liability and damage issues were pursued at trial with evidence admitted on both issues, it was an abuse of discretion to bifurcate at the closing argument stage of trial. Appellants recognize that bifurcation, pursuant to Pa.R.Civ.P. 213(b), is a matter of discretion of the trial court. Coleman v. Philadelphia Newspapers, Inc., 391 Pa.Super. 140, 570 A.2d 552 (1990). Under Rule 213(b) bifurcation of any separate issue may be ordered by the court on its own motion in the furtherance of convenience. Bifurcation is strongly encouraged where separation of issues facilitates the orderly presentation of evidence and judicial economy. Coleman, supra. Where liability and damage issues are not interwoven, bifurcation may be used as a means to insure against taint of the jury through sympathy occasioned by knowledge of the severity of the injury. Ptak v. Masontown Men’s Softball League, 414 Pa.Super. 425, 607 A.2d 297 (1992).

The unusual aspect of the bifurcation in the instant case is its being ordered after presentation of evidence on both liability and damages. The trial judge reasoned that the jury’s deliberation process would be simplified if it decided the liability issues first, and independent of, the damages issues. We do not conclude that the decision to bifurcate before closing argument was an abuse of discretion.

The liability questions were not interwoven with the damages questions. Rather than submit to the jury the complicated and potentially unnecessary law of damages and contribution among tortfeasors, the court limited consideration initially to the attribution of liability among the parties who were sued and counter-sued as defendants. Appellants have not persuaded us that the presentation of their case suffered prejudice as a result of this procedure. Their concern that the jury would speculate that there were no damages since the issue was not before them, is not substantiated. The judge instructed the jury on the law necessary to answer the four special interrogatories relating to liability. The judge told the jury that it was to apply only the rules of law upon which it was instructed by the court. Absent any support in the record, we do not find that the jury disregarded the court’s instructions. There was no abuse of discretion in the restriction of closing arguments to liability questions only.

The fourth issue for review is whether the lower court erred in not conducting an assessment of damages hearing against Angelo Pascale. The lower court held that application of the statute of limitations on the claim against Angelo Pascale obviated the need for an assessment of damages. On appeal, Mr. Pascale argues that since the statute of limitations defense was not pled, he waived it. The parties and lower court presumed throughout the trial that no recovery could be obtained against Mr. Pascale on the basis of the statute of limitations. The defect in not pleading the statute of limitations defense was first raised in appellants’ amended motion for post-trial relief.

The lower court found that the amended post-trial motion was not timely filed. Additionally, it noted that throughout the trial, plaintiffs made no objection to the ruling that the statute of limitations barred the claim against Mr. Pascale. On the first basis of denial, appellants had ten days after the receipt of the trial transcript within which to file amended post-trial motions. The transcript was available on December 6, 1991. The amended motion was filed on January 8, 1991. This was in violation of Montgomery County Local Rule 252. Since the lower court treated the amended motion as untimely and did not address its contents, appellants’ reliance upon Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) and Com. v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (table) (1988) is misplaced. These two cases stand for the proposition that a trial court may overlook the late filing of an amended or supplemental post-trial motion and proceed to decide the merits of the issues raised in the late-filed motions. If this occurs, the issues contained in the amended or supplemental motions will not be treated as waived for appellate review purposes. Here, the lower court did not accept the untimely motions and did not address the merits. We find no abuse of discretion in the lower court’s refusal to disregard appellants’ failure to comply with the timing requirements of post-trial procedure.

Further, assuming arguendo, that the matter of the waiver of the statute of limitations defense were properly raised in the amended motion, it is without merit. The lower court allowed (defense) counsel for Mr. Pascale to raise the affirmative defense of the statute of limitations at trial. No other party objected to this. Therefore, the failure to raise the defense in the pleadings is a defect which has been waived. Since the lower court allowed pursuit of the defense at trial, its actions are tantamount to a tacit allowing of amendment of the pleadings. Cf. Dilauro v. One Bala Avenue Associates, 419 Pa.Super. 191, 615 A.2d 90 (1992) (lower court instruction to jury on defense of assumption of risk which was not raised in New Matter is considered court’s permitting amendment of answer on its own motion); Meridian Oil and Gas v. Penn Central Corporation, 418 Pa.Super. 231, 614 A.2d 246 (1992) (lower court’s allowing defendant to raise affirmative defense of collateral estoppel for first time at pre-trial conference treated as tantamount to allowing amendment of pleadings.) Therefore, the fourth issue on appeal is without merit.

The final issue is whether the lower court erred in not allowing testimony from appellants on the failure to warn or provide assembly instructions. The lower court disallowed this testimony because this theory of recovery was not in the complaint. Appellants argue that their averments of defect in the complaint are broad enough to cover failure to warn and failure to provide assembly instructions. They point to paragraph 21 of the complaint as encompassing this claim:

21. Defendant is liable to plaintiffs for all their damages pursuant to § 402A of the Restatement, Torts Second in that the lumber was in a defective condition, unreasonably dangerous and without adequate warning to the purchaser or to the ultimate user, including plaintiffs.

Complaint at 4.

These general allegations are not sufficient to put the defense on notice that a defect in the nature of the failure to provide assembly instructions is being averred. The defect alleged in the complaint was the physical condition of the wood. Evidence of other theories of defect was properly excluded.

Appellants discuss the Uniform Contribution Among Joint Tortfeasors Act, 42 Pa.C.S. § 8322 et seq. in support of their claim that the issue of comparative causation should have been posed to the jury. Appellants overlook the fact that the jury was adequately charged on the theories of liability that had been properly pled and tried and that it rendered a verdict finding only one party tortiously liable. There was no issue of joint tortfeasor liability once the jury rendered a verdict finding Hechinger and Taylor Ramsey not liable in strict liability and Mr. Pascale liable 100% in negligence. No further inquiry on joint tortfeasor liability was necessary.

Judgment affirmed.

      . 8.02 (Civil).

      . See discussion infra.

      . The injury occurred on February 16, 1987. Mr. Pascale was named in the cross-claim filed by Hechinger on May 30, 1989.


author: OLSZEWSKI, Judge.

text:
    627 A.2d 757
    COMMONWEALTH of Pennsylvania v. John W. MARR, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed June 28, 1993.

      John Woodcock, Jr., Public Defender, Hollidaysburg, for appellant.
    John M. Daley, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before McEWEN, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the order entered on November 10, 1992, in the Blair County Court of Common Pleas denying appellant John Marr’s motion to dismiss. On June 21, 1990, Marr was issued a citation for operating a truck weighing 74,690 pounds over a bridge with a posted weight of 40,000 pounds. Following a hearing, the district magistrate found Marr guilty and directed him to pay a total fine of $9,927.50. Marr appealed to the court of common pleas, where he was again found guilty. On February 14, 1991, the trial court ordered Marr to pay the fine and “to arrange through Blair County Costs and Fines for a schedule of payment, granting to Costs and Fines the latitude to arrange such a schedule that will be reasonable in light of [Marr’s] economic circumstances.” Trial court opinion, 2/14/91, at pp. 5-6. The Fines and Costs Office established a $100.00 monthly payment plan. On August 12, 1992, Marr filed a motion to dismiss, arguing that the two-year statute of limitations for motor vehicle summary offenses prohibited the continued collection of monthly payments. The trial court denied his motion, and this timely appeal followed. We affirm.

Marr argues that continued collection of payments is barred by the two-year statute of limitations for Title 75 summary offenses:

Disposition of proceedings within two years. — No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.

42 Pa.C.S.A. § 5553(e). Marr presumes that the collection of fines is a “proceeding” or “action taken” as used in section 5553. We disagree. These terms are defined at 42 Pa.C.S.A. § 102. An “action” is “any action at equity or law.” Id. The legislature has defined “proceeding” as including “every declaration, petition or other application which may be made to a court under law or usage or under special statutory authority, but the term does not include an action or an appeal.” Id. As defined, fine collection is neither a proceeding nor an action. Thus, the case was completed on February 14, 1991, when the trial court entered judgment against Marr. This was less than a year after Marr was issued the citation. Accordingly, section 5553(e) was not violated.

Even if section 5553(e) applied to fine collection, the present situation does not violate the statute of limitations. This Court has held that any period of delay attributable to the accused tolls the two-year limitations period for motor vehicle summary offenses. Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991), alloc. denied, 529 Pa. 619, 600 A.2d 535 (1991). Here, Marr was directed to arrange a payment schedule with the Blair County Office of Costs and Fines. Because of his poor economic circumstances, the office established a $100.00 monthly payment plan. Marr now tries to argue that he cannot be attributed with causing any delay; the Costs and Fines Office arranged the payment schedule and, therefore, the delay in collection was caused by the office. Marr contends that if the office wanted to continue to collect the money which he owed, the district attorney should have moved for an extension. His argument is meritless.

Contrary to what he argues, Marr is solely responsible for the delay in collection of the fines imposed. The payment schedule was arranged to accommodate his economic circumstances, not for any court or prosecutorial benefit. We will not permit Marr to forge the trial court’s leniency into a double-edged sword. As this Court held in Quinn, “[w]e will not attribute to the legislature an intent that an accused be allowed to take advantage of a delay he has caused.” Id. at 488, 592 A.2d at 1317. Marr’s inability to pay the fine in its entirety resulted in extended collection and tolled the two-year statute of limitations. Accordingly, continued collection of the fine payments does not violate section 5553(e).

For the reasons set forth above, we affirm the order denying Marr’s motion to dismiss.

      . 75 Pa.C.S.A. § 4902.

      . 42 Pa.C.S.A. § 5553(e).


author: PER CURIAM: WIEAND, Judge,

text:
    627 A.2d 759
    COMMONWEALTH of Pennsylvania, Appellant, v. Scott Charles DEWALD, Appellee.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1993.
    Filed June 28, 1993.

      Emily Smarto, Asst. Dist. Atty., Greensburg, for Com., appellant.
    Timothy P. Dawson, N. Huntingdon,' for appellee.

      Before WIEAND, CIRILLO and MONTGOMERY, JJ.
   OPINION

PER CURIAM:

This is a Commonwealth appeal from an order of court which served as an acquittal. For the reasons below, we quash the appeal.

Appellee, Scott Charles Dewald, was charged with possession with the intent to deliver a controlled substance, possession of a controlled substance, possession of a small amount of marijuana and criminal conspiracy. The trial court granted a demurrer to the criminal conspiracy charge. The jury returned not guilty verdicts on the charges of possession with the intent to deliver a controlled substance and possession of a controlled substance. The jury returned a guilty verdict on the charge of possession of a small amount of marijuana. The trial court then ordered a judgment notwithstanding the verdict on the possession of a small amount of marijuana charge. The present appeal followed.

The sole issue raised on appeal is whether the trial court erred by reversing a verdict of guilty because his authority is limited to the consideration of posttrial motions. The Commonwealth is correct in that the granting of a judgment notwithstanding the verdict does not extend to criminal prosecutions. Commonwealth v. Blassingale, 398 Pa.Super. 379, 581 A.2d 183 (1990). The trial court concedes that the entering of a judgment notwithstanding the verdict was not the proper procedure. The order states that the court found appellee not guilty and the opinion states that the court reversed the jury’s decision and acquitted appellee. It is apparent that the trial court’s action was the equivalent to the granting of a motion for acquittal.

The trial court may grant a motion for a judgment of acquittal at the close of the evidence or reserve its decision until the jury returns a verdict. The Pennsylvania Rules of Criminal Procedure provide as follows:

“(c) If a defendant moves for a judgment of acquittal at the close of the evidence, the court may reserve decision until after the jury returns a guilty verdict or after the jury is discharged without agreeing upon a verdict.”
Pa.R.Crim.P. 1124(c).

Presently, appellee did move for an acquittal at the close of the evidence. This motion was denied. After the jury was discharged the trial court acquitted appellee. The previous denial does not preclude the trial court’s ability to reconsider the motion because:

“... The denial of a motion for judgment of acquittal at the close of all the evidence does not preclude later consideration of a motion for judgment of acquittal after discharge of the jury or a motion in arrest of judgment.” Pa.R.Crim.P. 1124(d).

Because the trial court granted an acquittal, the present action is not reviewable. A judgment of acquittal based upon a ruling by the court that the evidence is insufficient to convict, even if mistaken, is not reviewable. Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978); Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986). Therefore, the instant appeal is barred and must be quashed. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986); Commonwealth v. Trader, 354 Pa.Super. 583, 512 A.2d 693 (1986).

Appeal quashed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. Wliere, as here, a trial court sua sponte has reversed a verdict of guilty duly returned by a jury, I would not, as does the majority, equate such action with an acquittal for double jeopardy purposes. Rather, I would view the trial court’s action as a post-verdict determination that the evidence was insufficient to support the verdict. That such a ruling is subject to appellate review is clear.

[W]here a trial court has found post-verdict that the evidence was insufficient as a matter of law to support the verdict, that determination is subject to appellate review, for an order by an appellate court reversing such a conclusion and reinstating the verdict does not require a second trial. Therefore, there is no violation of principles of double jeopardy. Commonwealth v. Rawles, 501 Pa. 514, 519-520, 462 A.2d 619, 621 (1983). See also: United States v. Singleton, 702 F.2d 1159 (D.C.Cir.1983) (collecting cases at 1161-1162 n. 8); Commonwealth v. Macolini, 503 Pa. 201, 469 A.2d 132 (1983) (Superior Court’s reversal of judgment of sentence on grounds of insufficiency of evidence reversed by Supreme Court).

Commonwealth v. Smalis, 331 Pa.Super. 307, 314, 480 A.2d 1046, 1050 (1984) (en banc), rev’d, Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), rev’d, Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). See also: Commonwealth v. Parker, 305 Pa.Super. 516, 520-521, 451 A.2d 767, 769 (1982). Consequently, I am unable to join the majority’s decision to quash this appeal.

At the close of the evidence in this case, the defendant moved for a judgment of acquittal. This motion was denied by the trial court. When the jury thereafter found the defendant guilty of possessing a small amount of marijuana, the trial court sua sponte entered a judgment n.o.v. It did so before any post-trial motions had been filed by the defendant. The order, as the trial court now concedes, was inappropriate. It can only be construed as an attempt by the trial court to arrest judgment on the jury’s verdict. However, such an attempt was also improper. The trial court, except for limited reasons, could not sua sponte set aside the jury’s verdict and substitute therefor its own judgment.

A similar situation was before the Superior Court in Commonwealth v. Parker, supra. There, after returning verdicts of guilty in a non-jury trial, the trial court sua sponte entered an order by which it purported to change the verdicts to not guilty. On appeal, the Superior Court reversed the trial court’s order, reinstated the original verdicts of guilty and remanded so that the defendant would have the opportunity to file post-trial motions. The Court reasoned as follows:

A trial judge has no more authority over a verdict in a non-jury trial than he does over a jury verdict. Commonwealth v. Meadows, 471 Pa. 201, 205, 369 A.2d 1266, 1268 n. 5 (1977); Commonwealth v. Brown, supra [192 Pa.Super. 498, 162 A.2d 13 (1960) ]; See Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128 (1948); Pa.R.Crim.P. 1102(a). As we have stated, the authority of a trial judge following the recording of a verdict in a non-jury trial is limited to consideration of post-verdict motions in arrest of judgment or the granting of a new trial. Commonwealth v. Meadows, supra; Commonwealth v. Brown, supra. The standard of review for the trial court as it passes upon a motion in arrest of judgment, is limited to a determination of the absence or presence of that quantum of evidence necessary to establish the elements of the crime. Commonwealth v. Meadows, supra 471 Pa. at 208, 369 A.2d at 1269; Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981); Commonwealth v. Ponder, 260 Pa.Super. 225, 393 A.2d 1235 (1978). Had defendant moved for an arrest of judgment, the trial court would have been required to view the evidence in the light most favorable to the Commonwealth as verdict winner and could not have altered the verdicts based upon a redetermination of credibility or a re-evaluation of the evidence. See Commonwealth v. Meadows, supra; Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981); Commonwealth v. D’Angelo, 282 Pa.Super. 1, 422 A.2d 645 (1980); Commonwealth v. Kirkman, 264 Pa.Super. 170, 399 A.2d 720 (1979); Commonwealth v. Ponder, supra.

Commonwealth v. Parker, supra at 523-524, 451 A.2d at 770-771 (footnote omitted).

For the same reasons, the trial court in this case was without authority to reverse sua sponte the verdict of the jury after it had been recorded. The court could only arrest judgment or grant a new trial for reasons raised in post-trial motions filed by the defendant.

This has not been altered by Pa.R.Crim.P. 1124. Rule 1124(a) recognizes and adopts that which has always been the practice in Pennsylvania. Rule 1124(a)(4) permits a motion in arrest of judgment within ten (10) days after a finding of guilt; and Rule 1124(a)(3) permits a motion for judgment of acquittal where the jury has been unable to agree upon a verdict. Rule 1124(d) changes the prior practice which required a written motion for a directed verdict as a condition precedent to a post-verdict motion in arrest of judgment. The rule now permits a post-verdict motion in arrest of judgment or for a judgment of acquittal even where the defendant failed to move for a judgment of acquittal at the close of the evidence. This subsection also provides that the denial of a motion for judgment of acquittal during trial does not bar a post-verdict motion in arrest of judgment or for a judgment of acquittal.

Rule 1124(c), it must be conceded, permits a trial court to defer action on a motion for judgment of acquittal while it submits the case to the jury for verdict. If the jury thereafter finds the defendant guilty or is unable to agree upon a verdict, the court may thereafter act to grant the motion for judgment of acquittal. If the court does thereafter grant a motion for judgment of acquittal, however, it can do so only on the basis that.the evidence was insufficient to support a finding of guilt. See: Pa.R.Crim.P. 1124(a). It follows that a trial court cannot merely substitute its judgment for that of the jury. Moreover, when the trial court finds the evidence insufficient and enters a judgment of acquittal, its action in doing so is subject to review. Appellate review is not precluded by principles of double jeopardy, for a reversal will result in a reinstatement of the jury’s verdict and will not require a second trial. Commonwealth v. Smalis, supra.

In this case, the trial court did not defer action on the motion for judgment of acquittal made by defendant during trial. It acted immediately to deny the motion. After the jury had returned a finding of guilt, therefore, there was no viable motion remaining before the court to be decided. Thus, it is clear that the trial court acted sua sponte to enter the judgment of acquittal. This was improper.

The trial court’s reason for entering a judgment of acquittal was also inappropriate. The trial court reasoned that because the jury’s verdicts finding appellee not guilty of possessing LSD and possessing LSD with intent to deliver were inconsistent with its verdict finding him guilty of possession of marijuana, it would not be fair to permit a compromise verdict. Contrary to the court’s reasoning, however, it is well settled that the inconsistency of verdicts in a criminal case provides no basis for post-trial relief. See: Commonwealth v. Purcell, 403 Pa.Super. 342, 349-350, 589 A.2d 217, 221 (1991); Commonwealth v. Blassingale, 398 Pa.Super. 379, 397, 581 A.2d 183, 191 (1990).

For all of these reasons, I would reverse the order of the trial court which purported to grant a judgment notwithstanding the verdict and would reinstate the jury’s verdict of guilty on the charge of possession of marijuana. On remand, however, I would permit appellee to file a post-trial motion for new trial and/or arrest of judgment within the time allowed therefor. Because the majority has concluded otherwise, I respectfully dissent.

      . Following the decision of the United States Supreme Court, the original order of the Superior Court was reinstated. See: Commonwealth v. Smalis, 511 Pa. 229, 512 A.2d 634 (1986).