author:
WIEAND, Judge:
      WICKERSHAM, Judge,

text:
    452 A.2d 501
    Mara REICHMAN, Appellant at No. 2261 Phila. 1980, v. Edward WALLACH, M.D. and the Pennsylvania Hospital. Appeal of Edward WALLACH, M.D., at No. 2198 Phila. 1980 and No. 450 Phila. 1981.
    Superior Court of Pennsylvania.
    Argued May 28, 1981.
    Filed Oct. 29, 1982.
    Petition for Allowance of Appeal Denied March 14, 1983.

      William F. Sullivan, Jr., Philadelphia, for Wallach.
    James E. Beasley, Philadelphia, for Reichman.
    Before WICKERSHAM, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

In this medical malpractice case Mara Reichman sought damages for ulcerative colitis and neuroses, which she contended had been caused by stress resulting from a failure of a gynecologist and agents of a hospital to prevent and/or correct promptly internal bleeding which followed the performance of a hysterectomy. A jury returned a verdict for $429,960 against the gynecologist, Dr. Edward E. Wallach, and also against The Pennsylvania Hospital. The trial court subsequently set aside the verdict against the hospital and entered judgment n.o.v. in its favor. Dr. Wallach’s post verdict motions were denied, however, and he appealed from the judgment entered on the verdict. Mrs. Reichman appealed from the order entering judgment n.o.v. in favor of The Pennsylvania Hospital.

Mara Reichman consulted Dr. Wallach in October, 1973, after a routine physical examination had disclosed the presence of a pelvic mass. Dr. Wallach’s examination confirmed the presence of the mass, but it was not possible by examination to determine the precise nature of the tumor or whether it was malignant. This was explained to Mrs. Reichman. Dr. Wallach recommended that she undergo a laparotomy, with removal of the uterus, fallopian tubes and ovaries. Mrs. Reichman hesitated, but by November 13, 1973, the mass had increased in size and was palpable abdominally. Dr. Wallach again recommended a total hysterectomy. Still Mrs. Reichman hesitated. After consulting further with Dr. Yiner, her internist, who made a separate examination, Mrs. Reichman consented to surgery. According to her testimony, she instructed Dr. Wallach not to remove her ovaries unless they were diseased and “life-threatening.” Mrs. Reichman was admitted to The Pennsylvania Hospital on December 4, 1973, and on December 7 a total abdominal hysterectomy and bilateral salpingo-oopho-rectomy was performed.

Because Mrs. Reichman had a history of hypertension and high blood pressure, Dr. Viner requested that Dr. Troncelliti, chairman of the hospital’s anesthesia department and supervisor of the recovery room, administer a spinal anesthetic. Surgery began at 8:00 o’clock, A.M., and was completed without observed complications by 10:00 o’clock, A.M. Because the natural tendency of the spinal anesthesia administered to Mrs. Reichman was to paralyze the sympathetic nerves and dilate the vessels, thus lowering the patient’s blood pressure, her blood pressure was artificially elevated during and following surgery by the use of neo-synephrine. When its use was discontinued in the recovery room at or about 1:00 o’clock, P.M., Mrs. Reichman’s blood pressure fell precipitously. Consequently, the use of neo-synephrine was resumed, and Mrs. Reichman was monitored closely for signs that a normal blood pressure was returning. Because of the blood pressure condition, Mrs. Reichman was kept in the recovery room until it was closed at 6:00 o’clock, P.M. It was then unknown whether her inability to maintain normal blood pressure was attributable to the anesthesia or to internal bleeding. Dr. Troncelliti believed that the patient required continued careful monitoring, and he contacted Dr. Wallach, who, together with Dr. Viner, examined Mrs. Reichman. Because her failure to respond adequately to drugs, plasma, fluids and whole blood intended to stabilize her blood pressure suggested the possibility of internal bleeding, Drs. Viner and Wallach caused her to be placed in an intensive care unit. After Mrs. Reichman had spent a restless night in intensive care, surgery was performed to correct what was then believed to be internal bleeding. The source of the bleeding was determined to be a branch of the ovarian artery, approximately two inches above the site of the original dissection of the ovarian bundle, and it was doubly ligated to arrest the bleeding. A retroperitoneal hematoma, which had formed as a result of the bleeding, was also removed. Surgery was completed at 9:20 o’clock, A.M., and Mrs. Reichman was returned to her hospital room in what appeared to be satisfactory condition after one hour in the recovery room.

Post operatively, Mrs. Reichman developed abdominal pain, vomiting, nausea, diarrhea, and an inability to eat solid foods. She also lost weight, and an abnormality of her liver enzymes was discovered. These symptoms, she testified, continued after her discharge from the hospital on January 18, 1974. There followed a series of four hospitalizations during the next seven months, none of which disclosed the etiology of Mrs. Reichman’s symptoms. In February, she returned to Pennsylvania Hospital for five days with the same complaints. On March 6, she was readmitted, only to be discharged on March 11 without diagnosis. Her symptoms persisted, however, and she also developed a temporary swelling of the face and legs and hemorrhagic cystitis. On April 7, she was admitted to the Hospital of the University of Pennsylvania and remained there for nine weeks, during which numerous tests failed to disclose a physiological explanation. Mrs. Reichman testified, however, that her treating physicians suspected a hidden malignancy, which caused her to be placed in a “cancer ward.” Finally, on June 14, 1974, she entered Mt. Sinai Hospital in New York under the care of Dr. Zimmerman, a gastroenterologist. Here, an eleven week hospitalization, an exploratory operation and myriad tests also failed to disclose the cause of Mrs. Reichman’s symptomology, and she was discharged on August 19.

Mrs. Reichman continued thereafter under the care of Dr. Zimmerman and, on September 20, 1974, a sigmoidoscopic examination disclosed the presence of ulcerative colitis, a chronic, debilitating disease of the large intestine. Dr. Zimmerman and Dr. Rieger, an expert witness employed on Mrs. Reichman’s behalf, testified that there is no cure for ulcera-tive colitis, that persons suffering from the disease require medical care for the remainder of their lives, and that in some cases a colostomy is required during the later stages of the disease.

I. THE MOTIONS FOR JUDGMENT N.O.Y.

In order to establish the liability of the defendants, appellee was required to establish by competent evidence that the conduct of Dr. Wallach and the agents or employees of The Pennsylvania Hospital had fallen below the standards of reasonable medical practice, and that her injuries had been caused by their failure to provide such medical care. Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980); Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1285 (1978); Collins v. Hand, 431 Pa. 378, 383, 246 A.2d 398, 401 (1968); Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 270-271, 218 A.2d 303, 304 (1966); Donaldson v. Maffucci, 397 Pa. 548, 554, 156 A.2d 835, 838 (1959); Pratt v. Stein, 298 Pa.Super. 92, 120 n. 23, 444 A.2d 674, 689 n. 23 (1982); Ragan v. Steen, 229 Pa.Super. 515, 521, 331 A.2d 724, 727-728 (1974).

However, appellee was not required to establish that the negligent acts or omissions of the defendants were the sole cause of her injuries. It is now well settled that in a medical malpractice action to which Section 323(a) of the Restatement (Second) of Torts is applicable, once a plaintiff has established a prima facie case of professional negligence through the introduction of expert testimony, which negligence has increased the risk of harm, the issue of proximate cause is to be determined by the jury. “Once a plaintiff has introduced evidence that a defendant’s negligent act or omission increased the risk of harm to a person in plaintiff’s position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.” Hamil v. Bashline, supra, 481 Pa. at 269, 392 A.2d at 1286. A prima facie case of professional negligence under Section 323(a) can be established by “expert opinion testimony to the effect that defendant failed to exercise reasonable care in performing an undertaking to render services to a patient which the defendant should recognize as necessary for the other’s protection, that this failure increased the risk of physical harm to the patient, and that such harm did in fact result.” Gradel v. Inouye, 491 Pa. 534, 541, 421 A.2d 674, 677 (1980) quoting Hamil v. Bashline, supra, 481 Pa. at 262, 392 A.2d at 1283. Accord: Jones v. Montefiore Hospital, 494 Pa. 410, 416-417, 431 A.2d 920, 924 (1981); Hoeke v. Mercy Hospital of Pittsburgh, 299 Pa.Super. 47, 54, 445 A.2d 140, 144 (1982).

“[In] an appeal from the denial of a motion for a judgment n.o.v., the evidence must be viewed in a light most favorable to the verdict winner. Evidence supporting the verdict is considered, and the rest is rejected. All conflicts in the testimony are resolved in favor of the verdict winner, [Mrs. Reichman] herein. Rutter v. Morris, 212 Pa.Super. 466, 243 A.2d 140, 141 (1968).” Pratt v. Stein, 298 Pa.Super. 92, 105, 444 A.2d 674, 681 (1982), quoting Grubb v. Albert Einstein Medical Center, 255 Pa.Super. 381, 390-391, 387 A.2d 480, 484 (1978). Accord: Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Broxie v. Household Finance Company, 472 Pa. 373, 380, 372 A.2d 741, 745 (1977); Metts v. Griglak, 438 Pa. 392, 395, 264 A.2d 684, 686 (1970); Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 27, 434 A.2d 106, 112 (1981).

In determining the sufficiency of the evidence, we consider the evidence actually received, whether the trial rulings thereon were correct or not. Jones v. Treegoob, 433 Pa. 225, 229, 249 A.2d 352, 354 (1969); Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 497, 240 A.2d 71, 75 (1968); Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 134-135, 207 A.2d 843, 847 (1965); Rosche v. McCoy, 397 Pa. 615, 619, 156 A.2d 307, 309 (1959); Rodgers v. Sun Oil Company, 189 Pa.Super. 559, 563, 151 A.2d 673, 676 (1959); Hughes v. Hanna, 187 Pa.Super. 466, 469, 144 A.2d 617, 619 (1958). “However, where the evidence is insufficient to sustain a verdict against the losing party, a court will enter judgment n.o.v. in favor of the appellant despite a verdict to the contrary.” Szumski v. Lehman Homes, Inc., 267 Pa.Super. 478, 481, 406 A.2d 1142, 1143 (1979). Accord: Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 389, 421 A.2d 251, 254 (1980); Kolb v. Hess, 227 Pa.Super. 603, 323 A.2d 217 (1974).

It was Mrs. Reichman’s contention that Dr. Wallach had negligently performed the hysterectomy and had again violated medical standards by waiting until the following morning to perform a second operation to correct the bleeding ovarian artery. The evidence of negligence in performing the hysterectomy, although neither specific nor compelling, was sufficient to be submitted to the jury. Dr. George C. Lewis, Director of Gynecology at Jefferson Medical College, was asked: “Doctor, in the ovarian bundle branch area, if reasonable medical care is exercised, should there be an arterial bleed the size of the ovarian artery?” His answer was “no.” Although he conceded on cross-examination that arterial bleeds can and do occur from time to time under the best of care, he did not deviate from his earlier opinion regarding the exercise of reasonable medical care.

The opinion evidence that Dr. Wallach had been guilty of post operative negligence was clearer and more direct. Dr. Lewis testified that under the circumstances as then known, reasonable medical care dictated that corrective surgery be performed between 4:00 o’clock and 9:00 o’clock, P.M. on the same day on which the hysterectomy had been performed and that it was medical negligence to delay such surgery until the following morning. Dr. Zimmerman, appellee’s gastroenterologist, testified that although medical science is uncertain of the exact etiology of ulcerative colitis, in his opinion the formation of the hematoma, the length of time that she had been under close and prolonged monitoring, and the stresses resulting from the surgical procedures and during the post-operative periods were the factors which caused her to develop ulcerative colitis in August or September of 1974. Dr. Wolfgram Reiger, a psychiatrist who had been treating Mrs. Reichman since October 17, 1977, testified that Mrs. Reichman was suffering from marked depression, anxiety and traumatic neuroses, as well as ulcerative colitis, and said: “The post-operative course, and specifically the complications, represent the very trauma that caused these many neuroses that I have described and also directly caused the ulcerative colitis.”

We conclude, as did the lower court en banc, that this evidence was sufficient, if believed, to support a finding of causative negligence against Dr. Wallach. Consequently, the court correctly denied the doctor’s motion for judgment n.o.v.

The court’s entry of judgment n.o.v. in favor of The Pennsylvania Hospital was also correct. Although it was Mrs. Reichman’s contention that the hospital staff had failed to exercise reasonable medical care in monitoring her condition while she was in the recovery room, the evidence did not support that contention. Indeed, her own witness, Dr. Lewis, testified during cross-examination that Mrs. Reichman had been “adequately monitored” in the recovery room; and Mrs. Reichman herself testified that Dr. Troncelliti, the anesthesiologist in charge of the recovery room, “was all the time next to me. He attended all the time. He was very concerned.”

In support of her appeal from the order entering judgment n.o.v. in favor of the hospital, Mrs. Reichman relies on the following testimony of Dr. Zimmerman, her gastroenter-ologist:

Q. Doctor, taking into consideration the recovery room record, do you have an opinion based upon reasonable medical certainty as to whether Mrs. Reichman received reasonable medical care during the time that she was in the recovery room?
A. Yes, I do.
Q. And what is that opinion?
A. I think she had terrible medical care.
Q. Do you have an opinion as to whether the failure to exercise that reasonable medical care during the recovery-room period is the cause of her condition today?
A. Yes, sir.
Q. And what is that?
A. It is.
Q. Doctor, do you have an opinion based upon a reasonable medical certainty that if the patient had received proper recovery room care and had been reoperated before the establishment of the hematoma, whether she would have had an uneventful recovery?
A. I can answer the question, sir. I think she would have had a reasonable recovery.

N.T. 361(a), 363(a). (Emphasis supplied.)

It is impossible to ascertain from the witness’ opinion that Mrs. Reichman received “terrible medical care,” whether he was referring to the decisions made post-operatively by Drs. Wallach and Viner or whether the monitoring of Mrs. Reich-man’s condition by hospital personnel fell within the scope of his condemnation. Moreover, he furnished no reasons for his conclusion and identified no act or failure to act by Dr. Troncelliti or any other hospital staff member or . employee that breached applicable medical standards.

The lower court observed, and we agree: “The record fairly indicates that the general functions of the recovery room are threefold: (1) to monitor the patient’s vital signs; (2) to administer medical care in achieving post-operative recuperation; and (3) to advise the attending physician on any significant problems with respect to the patient’s condition of which the physician should be made aware. The evidence wholly fails to furnish a sufficient factual basis to enable reasonable minds to conclude that the hospital negligently failed to perform any of these functions.”

Dr. Zimmerman was not asked and expressed no opinion regarding the care exercised by Dr. Troncelliti or by any other member of the hospital staff assigned to the recovery room. His opinion that Mrs. Reichman “had terrible medical care” identified no person responsible therefor and was delivered in a total vacuum. It was not a response to a hypothetical question and was sustained by neither facts nor reasons.

“We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based.” Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 138, 153 A.2d 477, 479 (1959). Accord: Jones v. Treegoob, supra 433 Pa. at 229, 249 A.2d at 354; Warden v. Lyons Transportation Lines, Inc., 432 Pa. 495, 498, 248 A.2d 313, 314 (1968); Flaherty v. Pennsylvania Railroad Company, 426 Pa. 83, 85, 231 A.2d 179, 180 (1967); Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. 641, 646-647, 359 A.2d 440, 442 (1976), aff’d, 477 Pa. 445, 384 A.2d 241 (1978).

The evidence in this case was wholly insufficient upon which to base a logical conclusion that members of the hospital staff had been negligent in any identifiable way. A jury finding actionable negligence on the part of the hospital could base its verdict solely on speculation. Such a verdict cannot stand. The lower court en banc' properly entered judgment n.o.v. for the hospital.

II. DR. WALLACH’S MOTION FOR NEW TRIAL

In support of his motion for a new trial, Dr. Wallach argued in the court below that the trial court had committed error when it (1) sent out with the jury, over objection, the blackboard upon which Mrs. Reichman’s attorney had computed damages during his closing argument; (2) received evidence, over objection, pertaining to Mrs. Reichman’s being a survivor of the Holocaust; (3) permitted testimony, over objection, regarding the musical talents and accomplishments of Mrs. Reichman’s daughter; and (4) permitted Mrs. Reichman to testify, over objection, that when she was in the recovery room she overheard Dr. Troncelliti say to an unidentified person that she was in critical condition and that Dr. Wallach had failed to respond to numerous messages regarding her condition.

The blackboard containing damage computations placed thereon by plaintiff’s counsel during closing argument had not been received in evidence. However, it was allowed to go into the jury deliberating room upon the jury’s request. Whether to allow such a request rests largely in the discretion of the trial judge, although it is better practice to caution the jury that it is not evidence and should not be considered as such by the jury. See and compare: Phoenix Mutual Life Insurance Company v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 169, 266 A.2d 698, 703 (1970); Lancaster Redevelopment Authority Appeal, 425 Pa. 36, 41-42, 227 A.2d 827, 831 (1967); Solomon v. Luria, 45 D. & C.2d 291, 297-298 (1967), aff’d on the opinion below, 213 Pa.Super. 87, 246 A.2d 435, (1968). Here, the information contained on the blackboard has not been preserved, and we are unable to say that Dr. Wallach was prejudiced in any way thereby. Compare: Johnson v. O’Leary, 277 Pa.Super. 223, 230, 419 A.2d 742, 746 (1980), where we said: “It is the complaining party that has the duty to preserve the record, and, in this case, the appellant neglected to do so.” (footnote omitted)

“Generally, it may be said that any legally competent evidence which, when taken alone or in connection with other evidence, tends to prove or disprove a material or controlling issue or to defeat the rights asserted by one or the other parties, and sheds any light upon or touches the issues in such a way as to enable the jury to draw a logical and reasonable inference with respect to the matter or principal fact in issue, is relevant. As thus defined, relevancy means the logical relation between the proposed evidence and a fact to be established.” Commonwealth v. Vukovich, 301 Pa.Super. 111, 118, 447 A.2d 267, 270 (1982), quoting 29 Am.Jur.2d 302, 303, Evidence § 252. “The law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character.” Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954). See also: Commonwealth v. Duca, 312 Pa. 101, 107, 165 A. 825, 827 (1933); Ickes v. Ickes, 237 Pa. 582, 85 A. 885 (1912); Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981); Catina v. Maree, 272 Pa.Super. 247, 261, 415 A.2d 413, 420-421 (1979); Henry, Pennsylvania Evidence, p. 3. Much is left to the discretion of the trial judge. Abbott v. Onopiuk (Steel City Piping Company), 437 Pa. 412, 419, 263 A.2d 881, 884 (1970); Catina v. Maree, supra 272 Pa.Super. at 260, 415 A.2d at 419; Lewis v. Mellor, 259 Pa.Super. 509, 515, 393 A.2d 941, 944-945 (1978); Radogna v. Hester, 255 Pa.Super. 517, 520, 388 A.2d 1087, 1088 (1978); Cartmel v. Williams, 207 Pa.Super. 144, 147, 215 A.2d 282, 284 (1965); Wolfe v. Pickell, 204 Pa.Super. 541, 544, 205 A.2d 634, 635 (1964). “[T]he admission of irrelevant evidence is not always ground for reversal. It becomes so only when its tendency is to draw the minds of the jury from the issue and to confuse, prejudice or mislead them.” Henry, Pennsylvania Evidence, p. 4. See also: Ickes v. Ickes, supra 237 Pa. at 596, 85 A. at 889; Whistler Sportswear, Inc. v. Rullo, supra 289 Pa.Super. at 243, 433 A.2d at 47; Albert v. Alter, 252 Pa.Super. 203, 214-215, 381 A.2d 459, 465 (1977); Simpson v. Robinson, 238 Pa.Super. 555, 361 A.2d 387 (1976); Kolb v. Hess, 227 Pa.Super. 603, 610-611, 323 A.2d 217, 221-222 (1974); D'Allura v. Perri, 138 Pa.Super. 261, 264-265, 10 A.2d 124, 126-127 (1939).

We cannot say that the trial court erred in receiving evidence that Mrs. Reichman had survived the Holocaust. It was relevant, perhaps marginally, in view of the testimony that her ulcerative colitis had been caused by stress.

However, the evidence that her daughter had been a widely acclaimed child prodigy, held a master’s degree from Julliard, and was an exceptionally talented person was clearly irrelevant. It neither proved nor disproved a legitimate issue pertaining to liability or damages. It included oral testimony that the daughter had written musical compositions at the age of three, had played benefit concerts with Rubenstein, had performed at the White House, and had been labeled a genius by several newspapers. Her talents were documented by newspaper articles, a photograph with the president, letters of praise by other musicians, and even some of the musical compositions she had written as a child. All were received in evidence over objection.

The lower court’s opinion concedes that this evidence was irrelevant, but holds that the issue of its admissibility was not preserved for post-verdict review because counsel, after it had been received over objection, did not thereafter move to strike it. We disagree with this court imposed requirement. An objection to evidence distinctly made and overruled need not be repeated or renewed. 38 P.L.E. Trial § 81. See also: Hill v. Gerheim, 419 Pa. 349, 352-353, 214 A.2d 240, 243 (1965); Hachick v. Kobelak, 259 Pa.Super. 13, 17-18, 393 A.2d 692, 694 (1978); Sentz v. Dixon, 224 Pa.Super. 70, 74-76, 302 A.2d 434, 436-437 (1973); Schwegel v. Goldberg, 209 Pa.Super. 280, 286, 228 A.2d 405, 408 (1967).

A more difficult question is whether this irrelevant evidence, in the absence of other trial error, would require a new trial. Because there was additional, more compelling error, we find it unnecessary to decide this issue. Suffice it to say, that the evidence was irrelevant and should not have been received.

Mrs. Reichman was permitted to testify over objection that while she was lying in the recovery room, at or about 5:00 o’clock, P.M., she overheard Dr. Troncelliti yell into a telephone: “I have put five messages to Dr. Wallach’s office. None of them returned. I have Mrs. Reichman in critical condition.” The purpose of this testimony was explained in counsel’s opening statement to the jury as follows: “Mrs. Reichman .. . will tell you further that late in the evening the anesthesiologist was still trying to get ahold of Dr. Wallach. She was in critical condition. Suffice it to say she was taken out of the recovery room when it closed.” The jury was never instructed to consider the evidence for any purpose other than as substantive evidence against Dr. Wallach.

This testimony was clearly hearsay. It was what Mrs. Reichman said that she had heard Dr. Troncelliti say. Herr v. Erb, 163 Pa.Super. 430, 435, 62 A.2d 75, 78 (1948). It was secondhand evidence, not proceeding from the personal knowledge of Mrs. Reichman. Maglin v. Peoples City Bank, 141 Pa.Super. 329, 334-335, 14 A.2d 827, 829 (1940). It was evidence of an extra-judicial utterance offered as evidence of the truth of the matter asserted. Whitfield v. Reading Co., 380 Pa. 566, 570, 112 A.2d 113, 115 (1955); Klischer v. Nationwide Life Insurance Company, 281 Pa.Super. 292, 300, 422 A.2d 175, 179 (1980); Wagner v. Wagner, 158 Pa.Super. 93, 97, 43 A.2d 912, 914 (1945). It was not rendered admissible because Dr. Troncelliti was subsequently called as a defense witness and testified that he called Dr. Wallach’s office only once on the afternoon of December 7. See and compare: Herr v. Erb, supra 163 Pa.Super. at 433-434, 62 A.2d at 77; Dreibilbis v. Esbenshade, 6 Pa.Super. 182 (1897). Mrs. Reichman’s argument to the contrary misperceives the nature of and reason for the hearsay exclusion. For a hearsay statement to be properly admitted in evidence, the proponent must be able to point to a hearsay rule exception which will justify the court in departing from the rule excluding extra-judicial statements. There must be brought before the tribunal passing on a dispute those persons who know of their own knowledge the facts to which they testify. Johnson v. Peoples Cab Co., 386 Pa. 513, 514-515, 126 A.2d 720, 721 (1956).

Mrs. Reichman contends that Dr. Troncelliti’s statement was either (1) an excited utterance or (2) a declaration of a present sense impression and, therefore, admissible under the res gestae exception to the hearsay rule. In the alternative, she argues that the erroneous receipt of this evidence was harmless. The excited utterance exception to the hearsay rule has been defined as “a spontaneous utterance by an individual whose mind has suddenly been made subject to an overpowering emotion caused by some unexpected and shocking act or occurrence. The utterance is generated by, or springs out of the act, and the words are in a sense part of the act itself. Hence, the exciting events actually speak through the ‘verbal acts’ of the declarant. The words, which are in the nature of this emotional impulsive outburst, must be in the same continuous transaction with the acts, thus they are in a sense integrated into the acts. The utterance must be near in time to the occurrence and to insure trustworthiness it normally must be spoken to one of the first persons seen by the declarant after the act. The basis for the admission of the utterance is its spontaneity, thus all utterances which do not display the mandated instinctive naturalness must be excluded for fear that the words will emanate in whole or in part from the declarant’s reflective faculties. The declaration must be spoken under conditions which insure that it is not the result of premeditation, consideration or design, and it cannot be in the form of a narration or attempted explanation of past events, thus the process of the intellect can not have had an opportunity to be set in motion.” Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 568-564, 291 A.2d 772, 774-775 (1972) (footnote and citations omitted throughout). See also: Commonwealth v. Penn, 497 Pa. 232, 241, 439 A.2d 1154, 1159 (1982), cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 493-495, 240 A.2d 71, 73-75 (1968); Haas v. Kasnot, 371 Pa. 580, 583-584, 92.A.2d 171, 173 (1952); Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784-785 (1942); Carswell v. Southeastern Pennsylvania Transportation Authority, 259 Pa.Super. 167, 177, 393 A.2d 770, 775 (1978); Lininger v. Kromer, 238 Pa.Super. 259, 267-270, 358 A.2d 89, 92-94 (1976); Eller v. Work, 233 Pa.Super. 186, 193 n. 2, 336 A.2d 645, 649 n. 2 (1975).

Dr. Troncelliti’s declaration was not an excited utterance. It was not a spontaneous declaration made so near in time to an unexpected and shocking occurrence so overpowering as to make Dr. Troncelliti’s declaration a product of his reflective faculties. His statement, as related by Mrs. Reichman, was a narrative of past events and contained an opinion regarding Mrs. Reichman’s medical condition. In view of the fact that the declarant was a physician and the supervisor of the hospital recovery room, one searches in vain for the ingredients of an “excited utterance.”

Similarly, the statement was not admissible as a present sense impression. This exception allows the receipt of a person’s declarations concerning conditions or events which the declarant is observing at the time of his declaration. The rationale underlying this exception to the general rule is that the declarant will have no opportunity for reflection or calculated misstatement because his declaration has been contemporaneous with the occurrence of the event to which the declaration refers. It is “the reflex product of immediate sensual impressions, unaided by retrospective mental action.” Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974), quoting Morgan, Res Gestae, 12 Wash. L.Rev. at 96. (Emphasis supplied.) By definition, an utter-anee is a present sense impression only if it is spoken contemporaneously with the event to which it refers. Commonwealth v. Pronkoskie, 477 Pa. 132, 137 n. 4, 383 A.2d 858, 860 n. 4 (1978); Commonwealth v. Robinson, 273 Pa.Super. 337, 341, 417 A.2d 677, 679 (1979). It is apparent from the contents of Dr. Troncelliti’s alleged statement that (1) it was not spoken contemporaneously with the events to which it referred and (2) it was a product of retrospective mental action. Consequently, it was not admissible as a declaration of present sense impression.

It is argued finally that Dr. Troncelliti’s statement would have been admissible in rebuttal to contradict his direct testimony that the only time he called Dr. Wallach was shortly before 1:00 o’clock, p.m., to inform him that Mrs. Reichman would be remaining in the recovery room and that, therefore, the receipt of the hearsay statement on plaintiff’s side of the case was harmless error. This overlooks the fact that Mrs. Reichman not only offered the statement on her side of the case but offered it, as it was received, to show substantive negligence on the part of Dr. Wallach. If the anesthesiologist’s statement had been admitted as a prior inconsistent statement to impeach his credibility, the jury would have been cautioned of the limit; ed purpose for which it had been received and that it was not to be considered as substantive evidence. Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982); Commonwealth v. Russell, 456 Pa. 559, 565-566, 322 A.2d 127, 130-131 (1974); Wilson v. Pennsylvania Railroad Company, 421 Pa. 419, 431-432, 219 A.2d 666, 673 (1966); Dincher v. Great Atlantic and Pacific Tea Co., 356 Pa. 151, 156, 51 A.2d 710, 713 (1947); Commonwealth v. McGuire, 302 Pa.Super. 226, 234, 448 A.2d 609, 613 (1982); Westerman v. Stout, 232 Pa.Super. 195, 202-203, 335 A.2d 741, 745 (1975); Crawford v. Manhattan Life Insurance Company of New York, 208 Pa.Super. 150, 162, 221 A.2d 877, 884 (1966).

A majority of the court en banc which heard the post verdict motions concluded that the admission of the hearsay statement had been error but that the error was harmless. We are unable to agree with the assessment of harmlessness. Mrs. Reichman’s evidence of negligence by Dr. Wallach was far from overwhelming. Indeed, the evidence of causation between the operative and post operative care which she received from Dr. Wallach and the subsequent finding of a seemingly unrelated disease was relatively weak. The improper hearsay statement attributed to Dr. Troncelliti injected into the case an unsupported opinion that Mrs. Reich-man was in critical condition following performance of a hysterectomy. Moreover, it implied, without evidence, that Dr. Wallach had willfully ignored the needs of a critically ill patient. There are not many aspects of medical misfeasance that will more quickly influence, perhaps prejudice, lay jurors than for a physician to ignore a patient. To be told that a physician has abandoned a critically ill patient and left her to her chances will persuade the most hardened juror against such an uncaring physician. Here, the only evidence that Dr. Wallach was uncaring and had ignored calls for help came into evidence by an improperly admitted hearsay statement. Thus it was not merely cumulative. Mrs. Reichman’s evidence, as we have observed,. was not overwhelming. The introduction of this inadmissible and highly prejudicial hearsay statement under these circumstances was far from harmless. In view of the close and vigorously contested nature of the liability issues, the balance may well have been tipped in favor of Mrs. Reichman by this improper evidence. See: Carswell v. Southeastern Pennsylvania Transportation Authority, supra 259 Pa.Super. at 182-183, 393 A.2d at 777-778; Simpson v. Robinson, supra.

The judgment n.o.v. in favor of The Pennsylvania Hospital is affirmed. The judgment entered in favor of Mara Reichman and against Edward E. Wallach is reversed, and the case is remanded for a new trial.

WICKERSHAM, J., files a concurring & dissenting statement.

WICKERSHAM, Judge,

concurring and dissenting:

I concur with the majority in concluding that the entry of judgment n.o.v. in favor of The Pennsylvania Hospital was correct.

I dissent from the award of a new trial and the reversal of the judgment entered in favor of Mara Reichman against Edward E. Wallaeh. Mrs. Reichman’s testimony was, indeed, clearly hearsay . . . but Dr. Troncelliti was examined and cross-examined at great length. The jury could not have been misled. The error was harmless under all the circumstances. I would affirm the jury verdict which followed a four-week trial.

      . Section 323(a) of the Restatement (Second) of Torts provides as follows:
      § 323. Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm

      . Our review of the record has failed to turn up the same assessment of Mrs. Reichman’s condition by any physician familiar with the case.


source: Caselaw Access Project

author: POPOVICH, Judge: SPAETH, Judge,

license: Public Domain

text:
    452 A.2d 512
    COMMONWEALTH of Pennsylvania v. David ALMEIDA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1981.
    Filed Oct. 29, 1982.
    Petition for Allowance of Appeal Denied Feb. 24, 1983.

      Thomas A. Bergstrom, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before CERCONE, P.J., and SPAETH, HESTER, WICKERSHAM, BROSKY, JOHNSON, POPOVICH, DiSALLE and SHERTZ, JJ.

       DiSALLE & SHERTZ, JJ., did not participate in the consideration or decision of this case.

   POPOVICH, Judge:

This is an appeal from judgments of sentence for robbery, burglary, aggravated assault, and criminal conspiracy. Appellant argues that his rights under Rule 1100 were violated, and that the trial judge erred in instructing the jury on accomplice testimony.

On January 5, 1977, appellant and four others forcibly entered the residence of A. Charles Peruto at 1622 North 72nd Street in Philadelphia. Mrs. Josephine Peruto and her son, A. Charles Peruto, Jr., were inside. When one of the intruders grabbed Mrs. Peruto, and put a gun to her stomach and demanded her money, she screamed. (8/24/78 N.T. 19-22) Her son rushed upstairs from the basement to his mother’s aid. One of the intruders fired a shot at him, and then all five intruders fled. (8/28/78 N.T. 52-56)

On February 2, 1977, a complaint was filed against appellant. Appellant was arrested on March 10, 1978, and his trial began on August 17, 1978. He was convicted by a jury and after post-verdict motions were denied, was sentenced to 17 to 40 years in prison. This appeal followed. We affirm the judgment of sentence.

Appellant’s first contention, regarding his right under Pa.R.Cr.P. 1100 to be brought to trial no later than 180 days from the date on which the complaint was filed, was adequately addressed by the lower court in its opinion, and we need not comment on it any further.

Appellant’s second contention of error concerns the adequacy of the trial judge’s charge to the jury on accomplice testimony. At trial, Marie Rodriguez and Florence Gorman, two of the persons who broke into the Peruto residence with appellant, testified against appellant. Appellant’s trial counsel submitted the following points for charge regarding their testimony:

1. It is a rule of law that evidence or testimony from an accomplice, in this case Mary [sic] Rodriquez and Florence Gorman, is evidence and testimony from a corrupt and tainted source; that is, the law recognizes the fact that because these witnesses, Mary Rodriguez and Florence Gorman, are themselves guilty of this crime, they, as accomplices in general, often testify under a strong motive of favor or pardon. As such, the courts have withheld from them that faith which is accorded to the testimony of a disinterested and innocent witness.
2. This rule of law recognizes that it bears against the credibility of an accomplice witness, Mary Rodriquez and Florence Gorman, that they have participated in this crime and are testifying for the prosecution.
3. Because these witnesses, Mary Rodriquez and Florence Gorman, have agreed to testify in exchange for a sentence of 10 years’ probation, they are testifying under a strong motive of a self-serving and selfish nature, and their testimony should be carefully scrutinized as derived from a corrupt source and possibly affected by their own interest.
4. It is also a rule of law that an individual cannot be found guilty from the testimony of an accomplice, in this case Mary Rodriquez and Florence Gorman, unless that testimony is corroborated.
5. The testimony of one accomplice is not deemed to corroborate that of another. So that in this case, Mary Rodriquez’ [sic] testimony cannot be used to corroborate Florence Gorman’s testimony, and Florence Gorman’s testimony cannot corroborate the testimony of Mary Rodriquez.

In response to these points for charge, the trial judge ruled as follows:

“THE COURT: - No. 1, I will charge the jury that they are to scrutinize the evidence given by Marie Rodriquez and Florence Gorman with care because it comes from a corrupt source. So I will Give [sic] No. 1 in essence.
MR. SCHULGEN: Scrutinize carefully; right?
THE COURT: Right. So to the extent that I have not covered point No. 1 to the extent mentioned to me by point No. 1, you have an exception.
MR. SCHULGEN: Thank you.
THE COURT: No. 2 is refused.
MR. SCHULGEN: I take exception to that.
THE COURT: You have an exception automatically.

No. 3 I will not charge as given. I will charge that their testimony shall be scrutinized as being derived from a corrupt source, but I will not charge the ‘because’ part, because I don’t know. I don’t argue with the jury on becauses. So No. 3 I will charge in that fashion.

■ To the extent I don’t charge as given, you have an exception.

No. 4, that’s false, so I will not give it.
MR. SCHULGEN: I take exception.
THE COURT: Okay. I will charge to the contrary, as a matter of fact. You can take exception to that when I give it, because I will charge that he may be found guilty even though the testimony is not corroborated. The only requirement is that they be scrutinized.
MR. SCHULGEN: Okay.
THE COURT: When I give that, you can take your exception.
I will leave No. 5 open for the time being.” (8/28/78 N.T. 131-33)
The judge then charged the jury as follows:
“It is important, too, that you properly evaluate the testimony of Florence Gorman and Marie Rodriquez, both of whom testified for the Commonwealth and admitted that they were part and parcel of this crime, and that they pleaded guilty to the crimes eminating [sic] from this incident. When you come to assess their testimony, in your evaluation it is important that you are mindful of this that they are accomplices. The law requires that you scrutinize their testimony with care. The reason for this is that the testimony of an accomplice is deemed to be eminating from a corrupt or criminal source. In evaluating their testimony, you will also consider whether their testimony is corroborated from other sources. If you find that the testimony that they gave is corroborated from other sources and you find that in the other evidence, then your concern about their testimony is not as great. If you find corroboration from the other evidence, then you will not apply the special rule that you are to give special scrutiny and special care to their testimony. The ordinary standards of credibility then apply.” (N.T. 79-80, 8/29/78)

The judge then asked, in a sidebar conference, whether either counsel had any objections to the charge. This prompted the following exchange between the judge and defense counsel:

“MR. SCHULGEN: Okay. I also object to the corroboration parts.
THE COURT: The what?
MR. SCHULGEN: Corroboration parts.
THE COURT: Well, in what manner?
MR. SCHULGEN: Just noting my objection.
THE COURT: You can’t just do that. You can put it down, but it won’t do you any good. You have to tell me in what manner it was wrong. Anything else?
MR. SCHULGEN: No.”
(End of Sidebar Conference)
(8/29/78 N.T. 109)

Appellant now argues that the trial judge committed reversible error in failing to charge the jury, as requested in trial counsel’s submitted point for charge No. 5, that as the testimony of one accomplice may not be used to corroborate the testimony of another accomplice, Marie Rodriquez’s testimony should not be used to corroborate Florence Gorman’s testimony, and Florence Gorman’s testimony should not be used to corroborate Marie Rodriquez’s testimony.

This court, in Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273 (1976), outlined the prerequisites for preserving for appellate review a contention of error in the trial court’s charge:

“Error is preserved for appellate review in two ways. First, if a -written point for charge is submitted and rejected and raised in post-verdict motions that will be sufficient under the rule. [Rule 1119(b), Pa.R.Crim.P.] Second, if the court instructs the jury and counsel makes specific objections and renews that objection in written post-verdict motions, that will be sufficient to preserve error under the rule.” Id., 240 Pa.Superior Ct. at 283 n. 9, 362 A.2d at 276 n. 9.

In his post-trial motions, appellant raised the issue of the trial court’s refusal to give requested point for charge No. 5. If the trial judge would have refused point No. 5 when he ruled on the other requested points, the issue of the erroneous charge would clearly have been preserved for our review. However, in a meeting in chambers, the day before the jury was charged, it will be recalled that the trial judge did not specifically deny point No. 5, but instead told counsel, “I will leave No. 5 open for the time being.” After the charge, when counsel was asked if he had any objections, counsel replied, “O.K. I also object to the corroboration parts,” and when the judge asked, “Well, in what manner?”, counsel replied, “Just noting my objection.” Although the trial judge never expressly ruled on submitted point No. 5, his omission of this point from the charge, even after counsel objected to the corroboration parts of the charge, manifested a rejection of the point sufficient to preserve the issue for appeal. See Commonwealth v. Sisak, 436 Pa. 262, 269-270, 259 A.2d 428, 433 (1969), where the Supreme Court stated that,

“The formal submission of requested points for charge serves the same function as a request for additional or different instructions at the close of the court’s charge. Both procedures present the issue to the trial judge. Both enable the court to avoid error by charging on the issue presented.”

Appellant cites Commonwealth v. Bennett, 220 Pa.Super. 378, 283 A.2d 724 (1971) and Commonwealth v. Pressel, 194 Pa.Super. 367, 168 A.2d 779 (1961), for the proposition that it is reversible error for a trial judge to deny a request to instruct the jury on the point of corroboration by an accomplice. It is not disputed that the requested point for charge No. 5 is a correct statement of the law. However, contrary to appellant’s assertion, the Bennett and Pressel cases do not stand for the proposition that a trial judge cannot refuse a requested charge on the point of corroboration by an accomplice. In Commonwealth v. Fodero, 273 Pa.Super. 278, 417 A.2d 648 (1979), a case involving the testimony of a single accomplice, this Court stated: “It is settled that ‘a trial judge is not required to accept a requested instruction verbatim, even if legally correct and timely filed. The court is free to select it’s own form of expression, so long as the issue is adequately, accurately and clearly presented to the jury.’ ” Id., 273 Pa.Superior Ct. at 282, 417 A.2d at 650. Quoting Commonwealth v. Gardner, 246 Pa.Super. 582, 590, 371 A.2d 986, 989 (1977); see Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978); Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975). In Bennett, the trial court had instructed the jury that it was to scrutinize carefully the testimony of an accomplice to determine whether he was corroborated by the testimony of any other witness, necessarily including one witness who was herself a possible accomplice. Our Bennett court found error in this charge because it permitted the jury to find corroboration of one accomplice by another.

Here, instead of giving Point No. 5, the trial judge told the jury:

“In evaluating their testimony [i.e., the testimony of Marie Rodriquez and Florence Gorman], you will also consider whether their testimony is corroborated by other sources. If you find that the testimony they gave is corroborated from other sources, then your concern about their testimony is not as great.” (N.T. 79-80, 8/29/78) (Emphasis added.)

Looking at this portion of the charge by itself, it appears the judge treated the testimony of one accomplice as though it corroborated the testimony of the other. But, when examined in the context of this case, where the two accomplices participated in the robbery from start to finish and told nearly identical stories to the court, treating the testimony of two accomplices as a unit was not error. The judge admonished the jury to view “their testimony” with great scrutiny, and to determine whether it was corroborated by “other evidence” in the record. The court’s instruction did not permit the jury to do what the Bennett opinion forbids: allow the testimony of one accomplice to corroborate that of another.

In Pressel, supra, the trial judge charged the jury correctly on the subject of scrutinizing accomplice’s testimony with care, but failed to state, although specifically requested to do so, that the testimony of two named accomplices was not to be used to corroborate each other’s stories. This court granted a new trial to Pressel because of the trial judge’s complete refusal to charge on the subject of corroboration.

In an exhaustive search of other jurisdictions, we find that only the Supreme Court of Iowa has been confronted with a situation similar to the instant case. In Iowa v. Horn, 282 N.W.2d 717 (Iowa 1979), where two accomplices testified to the same facts, the trial, judge instructed the jury that, “A defendant cannot be convicted upon the evidence of accomplices, unless their testimony is corroborated by other evidence .. . . ” (Emphasis added). Defendant objected to the court’s charge and excepted to the court’s failure to change the instructions to read that, “The testimony of one accomplice cannot corroborate the testimony of another accomplice.” Defendant also requested that the specific names of the accomplices be used in instructing the jury to the same effect. Although our law allows a defendant to be convicted on the uncorroborated testimony of an accomplice, the point here is the same. The Iowa Supreme Court found that the instruction given adequately incorporated the concept of defendant’s request.

The reasoning of the Iowa Supreme Court is equally applicable to the law of Pennsylvania. The Bennett and Pressel cases stand for the proposition that it is reversible error for a trial judge to allow a jury to infer from his instructions, by negative inference or otherwise, that the testimony of one accomplice may be used to corroborate that of another accomplice. These cases are clearly distinguishable from the present case, where the trial judge instructed the jury that in order for them to treat the accomplice testimony as ordinary evidence, they must find that “the testimony they gave is corroborated from other sources.” Consequently, neither trial counsel’s requested point for charge No. 5 nor the trial court’s charge would permit the jury to allow the testimony of one accomplice to corroborate that of the other. Therefore, this court affirms the judgment' of sentence imposed by the lower court.

SPAETH, J., files a concurring and dissenting opinion in which CERCONE, P.J., and JOHNSON, J., join.

DiSALLE and SHERTZ, JJ., did not participate in the consideration or decision of this case.

SPAETH, Judge,

concurring and dissenting:

The majority holds, first, that we should consider appellant’s claim that the charge was erroneous. I think this claim has been waived. When the trial judge asked defense counsel what was wrong with the charge, counsel wouldn’t tell him. I shouldn’t let counsel tell us what he wouldn’t tell the trial judge. Next the majority holds that the charge was not erroneous because it “did not permit the jury to [use] the testimony of one accomplice to corroborate that of another.” Slip op. at 10. I think the charge in its most obvious meaning did permit this. It was at the very least ambiguous. But there was no need for any ambiguity. The trial judge had only to give either the unambiguous requested point for. charge or the approved standard form of jury instruction.

An unusual feature of this case is that appellant has filed a pro se brief arguing that his counsel was ineffective in waiving the claim that the charge was erroneous. When this case was argued before a panel of this court of which I was a member, I concluded, with Judge BROSKY concurring, that we should consider appellant’s pro se brief, and should grant a new trial because there could be no reasonable basis for counsel’s failure to preserve the claim that the charge was erroneous. On reargument before the court en banc, the Commonwealth has persuaded me that as a matter of policy we should not consider pro se briefs.

On this view of the case, the judgment of sentence should be affirmed, for the claim that Rule 1100 was violated is without merit, and the claim that the charge was erroneous has been waived. But the order affirming the judgment should not, as the majority’s order does, adjudicate the claim that the charge was erroneous. Instead, we should affirm without prejudice to appellant’s right to file a petition for post-conviction relief on the ground that his appellate counsel was ineffective for failing to make on appeal the claim that trial counsel was ineffective for failing to object properly to the charge.

-1-

In holding that appellant’s claim that the charge was erroneous was not waived and that we should therefore consider it, the majority relies on Commonwealth v. Wilds, 240 Pa. Superior Ct. 278, 362 A.2d 273 (1976), at 514-515, and Commonwealth v. Sisak, 463 Pa. 262, 259 A.2d 428 (1969), id., 240 Pa.Superior Ct. at 515. I quite agree that these cases hold that a claim that a charge was erroneous is preserved when counsel, has submitted a correct requested point for charge and the point has been “rejected” (Wilds) or “refused” (Sisak). Here, the requested point was not rejected or refused. Instead, when the requested point was submitted, the trial judge told counsel, “I will leave No. 5 open for the time being,” 8/28/79 N.T. 133, and he never thereafter ruled upon it.

The majority acknowledges that the trial judge never ruled upon the requested point, at 515 (“the trial judge never expressly ruled .... ”), but, it says, the judge “manifested a rejection of the point sufficient to preserve the issue ....,” id. I don’t find any such manifestation. To the contrary, the record is clear—the majority cites nothing to the contrary—that what the trial judge was manifesting was not rejection of the point but agreement with it: he recognized that the point was a correct statement of the law and believed that he had in his own words said the same thing the point said.

However, having stated the law in his own words, the trial judge found that counsel disagreed with the charge. Specifically, counsel said he “objected] to the corroboration parts.” 8/29/78 N.T. 109. The following colloquy ensued:

THE COURT: The what?
MR. SCHULGEN: Corroboration parts.
THE COURT: Well, in what manner?
MR..SCHULGEN: Just noting my objection.
THE COURT: You can’t just do that. You can put it down, but it won’t do you any good. You have to tell me in what manner it was wrong. Anything else?
MR. SCHULGEN: No.
Id.

I submit, the trial judge was right: You can’t just do that, and .if you do, it won’t do you any good. (Or at least until our decision today it wouldn’t have.) For you will be^held to have waived the objection that you are “[j]ust noting” and won’t explain. That is what we held in Commonwealth v. Whyatt, 235 Pa.Superior Ct. 211, 340 A.2d 871 (1975), which the majority doesn’t cite, much less distinguish. There we said:

In any event, although appellant did submit a correct point for charge, he neither specifically objected to that portion of the charge as given by the trial judge, nor did he ask the court to clarify its charge on testimony by an accomplice. In the absence of a specific objection, appellant is deemed to have waived this point. Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973).
Id., 235 Pa.Superior Ct. at 216, 340 A.2d at 874.

So here: Counsel submitted a correct point for charge; he did not specifically object to the charge as given; and he did not ask the court to clarify the charge. All counsel did was say that he “objected] to the corroboration parts.” When the trial judge found this objection unintelligible, counsel wouldn’t tell the judge what he meant.

To my mind, counsel’s refusal represented, in the most basic sense, a waiver of counsel’s right now to tell us what he meant. The principle that underlies the doctrine of waiver, and gave the doctrine birth, is that considerations of fairness to the trial judge and the efficient use of judicial resources all require that counsel must tell the judge what he meant. Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Can anyone doubt that here, if counsel had told the trial judge what he now tells us, the judge would have replied, “Oh, now I see what you’re objecting to. I didn’t mean that,” and then would have corrected his charge?

-2-

The law on the testimony of accomplice witnesses embodies four main principles. First, the testimony of an accomplice should be scrutinized with great care, as it comes from a corrupt source, that is, from one who has had a hand in the commission of the crime. See Commonwealth v. Thomas, 479 Pa. 34, 387 A.2d 820 (1978); Commonwealth v. Sisak, supra; Commonwealth v. Rhodes, 250 Pa.Superior Ct. 210, 378 A.2d 901 (1977); Commonwealth v. Vorhauer, 232 Pa.Superior Ct. 84, 331 A.2d 815 (1974); Commonwealth v. Darnell, 179 Pa.Superior Ct. 461, 116 A.2d 310 (1955). Second, if the testimony of an accomplice is corroborated, then the testimony may be considered more dependable, and received as ordinary evidence. Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973), citing Commonwealth v. Turner, 367 Pa. 403, 80 A.2d 708 (1951); Commonwealth v. Elliot, 292 Pa. 16, 23, 140 A. 537, 539 (1928). Third, a fact finder may convict a defendant even upon the uncorroborated testimony of an accomplice witness, if, after the testimony has been scrutinized with great care, it is found to be true. Commonwealth v. Gordon, 254 Pa.Superior Ct. 267, 385 A.2d 1013 (1978); Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972); Commonwealth v. Richbourg, 263 Pa.Superior Ct. 494, 398 A.2d 685 (1979); Commonwealth v. Didio, 212 Pa.Superior Ct. 51, 239 A.2d 883 (1968). Fourth, and finally, the testimony of one accomplice may not be used to corroborate the testimony of another accomplice. Commonwealth v. Bennett, 220 Pa.Superior Ct. 378, 283 A.2d 724 (1971); Commonwealth v. Jones, 213 Pa.Superior Ct. 504, 247 A.2d 624 (1968).

Here, the charge adequately instructed the jury on the first three of these four principles; the issue is whether it also did so on the fourth principle, that is, this is the issue, given the majority’s conclusion that it hasn’t been waived.

In considering this issue, it should first be noted that the trial judge did not give appellant’s requested point for charge No. 5. Had the judge given the point, there could be no question regarding the adequacy of the charge. Point No. 5 was both a correct and clear statement of the law. Had the point been given, the jury would necessarily have known that it was obliged to consider the testimony of each accomplice separately, that is, that it was to scrutinize the testimony of Mary Rodriguez, and then consider whether that testimony was corroborated by the testimony of any other witness not counting Florence Gorman, and that it was to scrutinize the testimony of Florence Gorman, and then consider whether that testimony was corroborated by any other witness not counting Mary Rodriguez. But instead of giving Point No. 5, the trial judge told the jury:

In evaluating their testimony [i.e., the testimony of Mary Rodriguez and Florence Gorman], you will also consider whether their testimony is corroborated by other sources. If you find that the testimony they gave is corroborated from other sources and you find that in the other evidence, then your concern about their testimony is not as great. If you find corroboration from the other evidence, then you will not apply the special rule that you are to give special scrutiny and special care to their testimony. The ordinary standards of credibility then apply.
(Emphasis added.)

The errors in this instruction may be seen if we put ourselves in the jury’s place and try to follow the instruction.

The jury was told to start by considering whether the testimony of the two accomplices was corroborated by other sources. That consideration, the jury was then told, would lead it to adopt one of two lines of thought. First, the jury might decide that the accomplices’ testimony was not corroborated by other sources. In that case, it was to apply the “special rule,” and “give special scrutiny and special care to their testimony.” Or second, the jury might decide that the accomplices’ testimony was corroborated by other sources. In that case, it was to apply the “ordinary standards of credibility.” Under this instruction, the jury would almost certainly go wrong, whichever line of thought it adopted.

Suppose the jury decided that the accomplices’ testimony was not corroborated and should therefore be given special scrutiny. That scrutiny would be directed to the accomplices’ testimony as a unit, for in his instruction the trial judge treated the testimony as a unit (he referred to it that way four times). But that was wrong. What the jury was supposed to do was to separate the accomplices’ testimony, and give special scrutiny first to the testimony of one accomplice, and next to the testimony of the other.

Or suppose the jury decided that the accomplices’ testimony was corroborated and should therefore be evaluated by the “ordinary standards of credibility.” But that was wrong too. The ordinary standards of credibility are matters of common sense—something a jury is supposed to use. One of the most ordinary of these ordinary standards is that when two eyewitnesses say the same thing, it is more likely to be true than when only one does. Here, that is exactly what the jury should have been told not to do. For when the two eyewitnesses are accomplices, the “ordinary standards of credibility” do not apply, even if the accomplices’ testimony is corroborated by other sources. Again, the jury must separate the accomplices’ testimony, taking the testimony of each accomplice by itself, and evaluating it without any reference to the testimony of the other accomplice. Here the trial judge precluded that approach, or at least made its adoption most unlikely, not only by his treatment of the accomplices’ testimony as a unit, but by his statement that if corroborated, the testimony could be evaluated by the “ordinary standards of credibility.”

Perhaps a figure of speech will illustrate the trial judge’s error. The testimony of an accomplice is said to come from a polluted source. Waters that come from a polluted source may be made cleaner, but only by other waters that come from a pure source, not by waters from another polluted source. In a case where more than one accomplice testifies, the jury must understand this. By whatever choice of words, the trial judge must make plain that the testimony of one accomplice cannot gain added stature, or persuasiveness—that its pollution cannot be lessened—because of what another accomplice said, and that this is always so, whether the testimony is or is not corroborated. No matter how generously read, the instruction here did not make that plain.

There was no excuse for this. The requested point for charge was correct and left no room for misunderstanding. It said in so many words that “Mary Rodriguez’[s] testimony cannot be used to corroborate Florence Gorman’s, and Florence Gorman’s cannot corroborate Mary Rodriguez.” Of course, the judge was entitled to use his own words. Commonwealth v. Musselman, 483 Pa. 245, 396 A.2d 625 (1979); Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977). But as Judge BROSKY pointed out in his concurring opinion for the panel:

When a point of law is clearly established, a trial judge has both a duty to know the law and to present it to the jury in a concise and accurate manner. As stated in the ABA, Project on Minimum Standards for Criminal Justice, Trial by Jury, “Approved Draft, 1968,” 4.6(a):
Commentary:
Section 4.6(a)
Instructions to jurors should be clear, concise, accurate and impartial statements of the law written in understandable language and delivered in conversational tone which will be helpful to jurors.” Devitt, Ten Practical Suggestions About Federal Jury Instructions, 38 FRD 76 (1966).

Emphasis added. This recommendation is equally applicable to state courts as it is to federal courts.

In the instant case, the requested instruction No. 5 was a clear statement of the law [Citation]. Nevertheless, the trial judge chose not to give that instruction but, rather gave another.

Panel Concurring Slip op. at 1-2.

The trial judge’s decision not to give the requested point was the more inexcusable in view of the fact that the Pennsylvania Standard Jury Instructions (Pennsylvania Supreme Court Committee) Crim.Law § 4.04 (May 15, 1972) exactly provide for the sort of case before the judge, that is, for a case in which more than one accomplice had testified. The instructions are:

First. The testimony of ( ) should be looked upon with disfavor as coming from corrupt and polluted sources.
Second. You should closely and separately examine the testimony of ( ) and ( ) and accept the testimony of each only with caution and care.
Third. You should consider separately whether the testimony of each is supported, in whole or in part, by other evidence aside from his own testimony, for if it is supported by independent evidence it is more dependable. However, you may not consider the testimony of ( ) as supporting the testimony of ( ). The testimony of each must be considered separately.
Fourth. You may find the defendant guilty abased on the testimony of ( ) alone or on the testimony of ( ) alone and even though the testimony of the witness on whom you rely is not supported by any independent evidence.
(Emphasis added.)

-3-

In its brief to the court en banc, the Commonwealth argues that the panel erred in considering appellant’s pro se brief. It is quite true that the panel did consider the pro se brief. In the panel’s view—as remains my view here—the claim that the charge was erroneous had been waived by counsel. The panel nevertheless considered the claim because it was made by appellant himself, in his pro se brief, where appellant argued that counsel had been ineffective in waiving the claim. Finding no reasonable basis for the waiver, the panel ordered a new trial.

The majority doesn’t respond to the Commonwealth’s argument that the panel erred in considering appellant’s pro se brief. Because it holds that counsel didn’t waive the claim that the charge to the jury was erroneous, it finds appellant’s pro se argument to be moot. At 512 n. 6. This ignores the fact that in his pro se brief appellant made five other allegations of ineffectiveness of trial counsel, which the majority does not address in any way. In any case, since I believe that trial counsel did waive the claim with regard to the charge to the jury, and because of the other claims raised in the pro se brief, I believe that it is necessary to decide whether the Commonwealth is right that we shouldn’t consider appellant’s pro se brief.

In the opinion I wrote as a member of the panel, I said that I saw no reason not to consider appellant’s pro se brief, adding that if we were to refuse to consider it, “most likely” appellant would file a petition for post-conviction relief alleging counsel’s ineffectiveness “for failing to make the argument he tried to make in his pro se brief. Thus it will avoid undue procedural confusion, and also avoid delay, to address the issue presented in appellant’s pro se brief now.” Especially did I think this so since the pro se brief “not only does not pose any danger to appellant, but benefits him by presenting another argument on his behalf.” Panel Slip op. at 16 n. 7.

On reargument, the Commonwealth has persuaded me that I was wrong, and that “[t]his Court should announce that it will not consider pro se pleadings until these are reviewed by counsel.” Brief for Commonwealth at 16. On reflection, I’ve concluded that the distinction between pro se arguments that “benefit[]” an appellant and those that “pose [a] danger” to him is unsound. Whatever the nature of the argument, by considering it we may, as the Commonwealth suggests, encourage other appellants to submit pro se briefs, which the Commonwealth “will have to decipher and respond to,” thereby “creating] a shadow docket of hundreds of appeals.” Id. It is not unusual for a judge to receive a pro se letter or petition of some sort from a defendant. The general practice is for the judge, or the prothonotary, to refer the letter to counsel who represents the defendant. I think we should follow the same practice with respect to pro se briefs, leaving it to the defendant to file a petition for post-conviction relief if, after we have decided his appeal, he continues to believe that counsel should have made, and we should have responded to, the argument he made pro se. It may be that sometimes this will, as I suggested in my opinion as a member of the panel, unduly prolong litigation. But on balance, I think, it will result in a more orderly and therefore more efficient administration of justice; and in most cases, at least, the defendant will not be prejudiced, for counsel will be able to consider the defendant’s pro se argument, and if it has any merit, present it to us or the lower court in one way or another.

-4-

Having reached the foregoing conclusions, I should decide the case as follows: I should hold, as does the majority, that appellant’s claim that Rule 1100 was violated is without merit. Next I should hold that appellant’s claim that the charge was erroneous has been waived. These conclusions would lead me to affirm the judgment of sentence, which is why this opinion is in part a concurring opinion. Finally, I should hold that appellant’s pro se brief should not be considered. That conclusion would lead me to affirm the judgment of sentence, but, and this is why this opinion is also a dissenting opinion, without thereby adjudicating ¿p-pellant’s pro se claim that his counsel was ineffective .for failing to preserve the claim that the charge was erroneous, and without prejudice to appellant’s right to file a petition for post-conviction relief on that ground.

CERCONE, P.J., and JOHNSON, J., join in this concurring and dissenting opinion.

      . This case was originally argued before a panel of this court. After a request for reargument by the Commonwealth, the case was ordered reargued before the court en banc.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3502.

      . 18 Pa.C.S. § 2702.

      . 18 Pa.C.S. § 903.

      . Appellant, in a pro se supplemental brief, raises as a third issue the effectiveness of trial counsel’s stewardship in regard to the preservation of appellant’s second argument for this appeal. Because we find that the issue of the trial judge’s charge on accomplice testimony has been properly preserved for the purposes of this appeal, appellant’s pro se argument is moot.

      . The four others were Florence Gorman, Marie Rodriguez, Frank Crutchley, and Ray Thompson. Thompson was tried separately, and his conviction was affirmed in Commonwealth v. Raymond Thompson, 274 Pa.Super. 44, 417 A.2d 1243 (1979). Gorman and Rodriquez entered negotiated guilty pleas, and were placed on probation. The record does not indicate the disposition of the charges against Crutchley.

      . Judge VAN der VOORT dissented, but on the ground that the charge was not erroneous, and that if it was erroneous, the error was harmless.

      . The claim is that in failing to find appellant for 401 days, the police did not exercise due diligence. The claim is without merit because we cannot be sure that had the police undertaken the interviews and investigations suggested by appellant, they would have found and apprehended him any sooner, and also, because in any event the police are only required to make reasonable efforts, not every conceivable effort, to find a defendant, and here their efforts were reasonable.


author: PRICE, Judge: WIEAND, Judge,

text:
    452 A.2d 521
    Albert SIRAVO v. AAA TRUCKING CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1981.
    Filed Nov. 5, 1982.

      Herbert Somerson, Philadelphia, for appellant.
    Joseph L. London, Philadelphia, for appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   PRICE, Judge:

This is a negligence action in which appellant contends that appellee’s evidence below was contrary to the “incontrovertible physical facts” doctrine of Lessig v. Reading Transit & Light Co., 270 Pa. 299, 113 A. 381 (1921). Since we conclude that appellant’s facts were neither evidence nor “incontrovertible”, we have no occasion to consider the applicability of the aforesaid doctrine and affirm.

The basic facts are not disputed. Appellee went to a diner at 10th and Russell Streets in Philadelphia on July 8, 1975 and parked his car on the west side of 10th Street. When appellee was leaving, a truck was stopped and seemingly parked alongside appellee’s car. As appellee walked in between the two vehicles to enter the driver’s side of his own vehicle, the truck allegedly moved, striking appellee in the back.

Appellant contends that it was physically impossible for the right rear of the truck to strike appellee while the truck was in the act of making a left turn. Brief for appellant at 5. By way of explanation, appellant further states:

It is a basic law of physics that a vehicle with fixed rear wheels and sterring [sic] on the front wheels, that a vehicle turning left will never cross over the right axis.

Brief for appellant at 5.

It is, however, an equally basic law of evidence- that statements by counsel in briefs are not themselves evidence and not of record. That, however, is the only repository of such statements on this appeal.

Appellant contended below that not only was appellant’s evidence “physical” and “incontrovertible,” but also that it was so well known and notorious throughout the community that the court could have and should have taken judicial notice of these matters. (N.T. 75). Thus, appellant presented no evidence either of the law of physics relied on, of the actual operation of the appellant’s vehicle, or of the application of the law of physics to the facts sub judice. Since, at most, the court below was permitted to take judicial notice of only the law of physics itself, we hold that appellant’s allegedly “incontrovertible physical evidence” was neither evidence nor incontrovertible.

The doctrine of judicial notice allows courts to dispense with the formal rigors of evidentiary proof regarding matters so well known and notorious throughout the community that even courts should not be ignorant of them until proven. In this case, appellant contended below that the court should have taken judicial notice of the impossibility of the actual occurrence of the accident complained of.

The doctrine of judicial notice simply does not extend this far. While the court could have taken judicial notice of the law of physics itself, to wit, that a vehicle with front and rear wheels and steered by the front wheels will not, in making a left turn, cross oyer the right axis, that would not by any means establish the applicability of that law to this case or the impossibility of the accident complained of. Rather, at most, taking judicial notice of the law of physics involved creates a conflict in the testimony as to the actual operation of the truck by the driver, the appellee saying that the vehicle was operated in such a fashion as to strike him and the driver saying that the vehicle was operated so that it did not strike appellee.

This was plainly a disputed issue of fact of which judicial notice could not be properly taken. Haber v. Monroe County Vocational Tech. School, 296 Pa. Superior Ct. 54, 61, 442 A.2d 292, 296 (1982); Chaplin v. Pelton, 282 Pa.Superior Ct. 487, 490, 423 A.2d 8, 9 (1980). As Professor Davis has so well stated:

Nothing short of bringing facts into the record, so that an opportunity is allowed for cross-examination and for presentation of rebuttal evidence and argument, will suffice for disputed adjudicative facts at the center of the controversy.

Davis, “A System of Judicial Notice Based On Fairness And Convenience,” Perspectives of Law (Pound ed. 1964).

That brings us to the second fallacy of appellant’s arguments, to wit, appellant’s evidence was simply not “incontrovertible” at all. Surely, it was for the trier of fact to determine whether the accident complained of in fact took place or not. If the trier of fact concluded, as it apparently did, that the accident did in fact take place, there was also evidence from which the trier of fact could have concluded that that event was not of a kind that ordinarily occurs in the absence of negligence, that other responsible causes (including the conduct of the appellee) were eliminated by the evidence, that the indicated negligence was within the scope of appellant’s duty to appellee and that therefore the doctrine of res ipsa loquitur applied, shifting the burden of proof. See generally, McGowan v. Devonshire Hall Apartments, 278 Pa.Superior Ct. 229, 420 A.2d 514 (1980). While the driver may well have testified that he was only going straight or turning left, the trier of fact was certainly free to disbelieve that testimony. The important point here is that the facts which the trier of fact found do not compel either conclusion. As this court said recently, quoting from the Pennsylvania Supreme Court:

... [N]o fact based on oral testimony is incontrovertible until it receives the imprimatur of a jury’s acceptance .... Vereb v. Markowitz, 379 Pa. 344, 348, 108 A.2d 774.

Densler v. Metropolitan Edison Co., 235 Pa.Superior Ct. 585, 596, 345 A.2d 758 (1975).

Judgment affirmed.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur with the majority that the evidence in this case was sufficient to permit an inference that appellant’s driver negligently struck appellee as he was about to enter his parked automobile. However, I am unable to join that portion of the majority’s opinion which holds that “res ipsa loquitur” is applicable to the facts of this case.

      . Sayward v. Denny, 158 U.S. 180, 183-184, 15 S.Ct. 777, 778-779, 39 L.Ed. 941 (1895); Schley v. Pullman’s Palace Car Co., 120 U.S. 575, 578, 7 S.Ct. 730, 731, 30 L.Ed. 789 (1887); In Re Legislative Route 1018, etc., 422 Pa. 594, 222 A.2d 906 (1966); Spitzer v. Phila. Transp. Co., 348 Pa. 548, 36 A.2d 503 (1944); Dile v. Dile, 284 Pa.Superior Ct. 459, 426 A.2d 137 (1981); Gee v. Eberle, 279 Pa.Superior Ct. 101, 420 A.2d 1050 (1981); Marine Bank v. Huhta, 279 Pa.Superior Ct. 130, 420 A.2d 1066 (1980); W.W. Grainger, Inc. v. W.C. Ruth & Sons, 192 Pa.Superior Ct. 446, 161 A.2d 644 (1960); Gontorski v. Grzyb, 148 Pa.Superior Ct. 506, 25 A.2d 839 (1942); Dougherty v. Wood, 105 Pa.Superior Ct. 1, 158 A. 203 (1931); City of Erie v. Pa. Pub. Util. Comm., 41 Pa.Commonwealth Ct. 194, 398 A.2d 1084 (1979); Laspino v. Rizzo, 40 Pa.Commonwealth Ct. 625, 398 A.2d 1069 (1979); 9 Goodrich-Amram, Standard Pa. Practice, Ch. 40, § 29 at 336, n. 19; 2 Penna. Law Encyclopedia, Appeals, § 261 at 390; and see generally, Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974).

      . While the parties stipulated below that the testimony of the driver “may also be submitted,” (N.T. 3), and while the trial court stated, at the close of the evidence that he had the originals of the driver’s deposition, (N.T. 79), it was not made a part of the record on this appeal. We assume that the driver testified that, at all pertinent times, he was either going straight or turning to the left and that he did not strike the appellee to the best of his knowledge.

      . McCormick On Evidence, § 328 at 757 n. 2 and §. 329 at 760.

      . In this posture, we do not find it necessary to decide whether the doctrine of “incontrovertible physical facts” was properly applicable to this case.

      . For example, in making the turn onto a small street, some drivers first turn slightly to the right to set up the left turn. Such activity, though we assume it was denied by the driver, would certainly explain the events recounted. The trier of fact was clearly free to conclude that something of this character occurred.


author: PRICE, Judge:

text:
    452 A.2d 524
    Kevin CASSIDY, in his own behalf and in behalf of others similarly situated, Appellant, v. MONTGOMERY COUNTY, William T. Nicholas, District Attorney of Montgomery County, John J. Newett, Clerk of Courts of Montgomery County.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Filed Nov. 5, 1982.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.

      Martin J. Cunningham, Jr., Norristown, for appellant.
    Logan M. Bullitt, IV, Norristown, for appellees.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   PRICE, Judge:

On April 5, 1977, appellant, Kevin Cassidy, was placed in the Accelerated Rehabilitative Disposition (“A.R.D.”) program in Montgomery County. After a hearing, and pursuant to Pa.R.Crim.P. 175 et seq., the court ordered that further proceedings be deferred, conditioned upon a two year period of probation, payment of the costs of prosecution, and payment of $300.00 “in restitution to the County for the cost of superintending the conditions.” (R. 16a). Appellant and his attorney agreed to these conditions at the hearing. On April 2, 1979, Mr. Cassidy petitioned the court to dismiss all criminal charges against him, contending that he had successfully performed all of the conditions of the A.R.D. order, and on April 4, 1979, the court ordered that the charges be dismissed.

Three weeks later, appellant filed this class action in equity, contending that the imposition and collection of the $300.00 amount by Montgomery County and the other appel-lees was in violation of Pa.R.Crim.P. 182(a), which prohibits the conditioning of an A.R.D. order upon payment of a fine. He seeks recovery for himself and all others who have paid such sums to Montgomery County as conditions of A.R.D., together with interest from the date of payment. He also seeks injunctive relief against the district attorney, as well as attorney’s fees and costs.

Appellees filed preliminary objections in the nature of a motion to strike and a demurrer, contending, inter alia, that the $300.00 collected was not a fine in violation of Rule 182(a), but rather a payment to the use of the county, and as such a permissible condition of A.R.D. Appellees’ preliminary objections were sustained by a court en bane, and the complaint dismissed for failure to state a cause of action.

Appellant maintains that a cost to the use of the county is not a' permissible condition of A.R.D. under Rule 182(a), and also argues that in characterizing the $300.00 payment as a cost to the use of the county, rather than a fine, the court below improperly resolved a question of fact against him to grant a demurrer. We disagree with both contentions and affirm.

Pa.R.Crim.P. 182(a) provides:
The conditions of the program may be such as may be imposed with respect to probation after conviction of a crime, including restitution and costs, and may include other conditions agreed to by the parties, except that a fine may not be imposed.

At the time this rule was adopted (Rule 182 became effective May 24, 1972), a body of case law existed to the effect that a fine could not be imposed as a condition of probation. Commonwealth v. Martin, 262 Pa.Superior Ct. 113, 119-120 n. 7, 396 A.2d 671, 674 n. 7 (1978); Commonwealth v. Rooney, 233 Pa.Superior Ct. 225, 335 A.2d 710 (1975); Commonwealth v. Peterson, 172 Pa.Superior Ct. 341, 94 A.2d 582 (1953). The rationale for this principle was that since a fine was deemed a sentence, the imposition of a prison term upon revocation of probation, would constitute an illegal imposition of two sentences for the same offense. Commonwealth v. Ferguson, 201 Pa.Superior Ct. 649, 193 A.2d 657 (1963); Commonwealth v. Peterson, 172 Pa.Superior Ct. at 345, 94 A.2d at 582.

Thus, the Act of June 19, 1911, P.L. 1055, as amended, 19 P.S. § 1051 (1964), in effect at the time of the adoption of Rule 182, which provided for terms and conditions of probation, including expressly “the payment of money for the use of the county,” specified that such a condition not be considered as the imposition of a fine or sentence. The cases under this statute upheld costs to the use of the county as conditions of probation, finding that such payments did not constitute fines and were not, therefore illegal. Commonwealth v. Martin, 262 Pa. Superior Ct. at 119-120 n. 7, 396 A.2d at 674 n. 7); Commonwealth v. Rooney, 233 Pa.Superior Ct. at 228-29, 335 A.2d at 712; Commonwealth ex rel. Kosele v. Keenan, 178 Pa.Superior Ct. 461, 116 A.2d 314 (1955).

Appellant argues that it is significant that the successor provision to 19 P.S. § 1051, 18 Pa.C.S. § 1354, in effect at the time Mr. Cassidy was placed on A.R.D., does not specifically list the payment of money to the use of the county as a permissible condition of an order of probation. This argument overlooks 18 Pa.C.S. § 1354(c)(13), which states that as a condition to its order of probation the court may require a defendant “to satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” This provision indicates that it is not necessary that a condition be specifically enumerated in the statute to be a valid condition of probation, but rather that the court has considerable discretion to fashion conditions appropriate to a particular case. Commonwealth v. Walton, 483 Pa. 588, 598, 397 A.2d 1179, 1184-85 (1979). Further, the language of Rule 182(a) affords even greater latitude for the design of an individualized A.R.D. program. An A.R.D. order may contain not only such conditions “as may be imposed with respect to probation after conviction of a crime,” but also “may include other conditions agreed to by the parties.” The only exception is the imposition of a fine.

Appellant argues that the exclusion of fines in Rule 182 reflects a determination by the Supreme Court that any payment other than restitution or the costs of prosecution could not serve a rehabilitative purpose in the context of A.R.D. We cannot agree. At the time the rule was adopted fines were not permissible in connection with probation because of the double sentence problem, not because of any lack of rehabilitative function. Further, at that time, costs to the use of the county were permissible conditions for probation. Had the Supreme Court intended to exclude such costs as conditions of A.R.D., the rule could easily have been drafted to do so specifically. The case law clearly indicates that a payment to the use of the county is not a fine, and is therefore not prohibited by Rule 182(a).

Appellant’s contention that the lower court improperly resolved a question of fact against him in characterizing the $300.00 sum as a cost to the use of the county, rather than as a fine, is also without merit. The record clearly shows that the A.R.D. order required the payment of $300.00 “in restitution to the county for the cost of superintending the conditions.” (R. 16a). While it is true that all well pleaded facts and reasonable inferences therefrom must be resolved against granting a demurrer, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970), a demurrer does not admit conclusions of law. Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964); Hoffman, supra. Appellant’s characterization of the $300.00 payment to the county for the cost of superintending the program as a “fine” presents no question for determination of fact. The question of whether such a payment constitutes a fine is ultimately one of law, as the cases dealing with such payments in the context of probation clearly illustrate. The court below properly concluded as a matter of law that such a payment does not constitute a fine in violation of Pa.R.Crim.P. 182(a).

Accordingly, the order sustaining appellees’ preliminary objections and dismissing appellant’s complaint is affirmed.

      . Appellees also raised issues as to Mr. Cassidy’s representation of the class as defined in his complaint, as well as asserting that appellant was guilty of laches and that he had an adequate remedy at law. The court below did not consider these questions. The decision was based solely on the ground that the $300.00 payment was not a fine, and that, therefore, appellant’s complaint did not state a cause of action.

      . Commonwealth v. Walton, 483 Pa. 588, 600 n. 16, 397 A.2d 1179, 1185 n. 16 (1979). This successor provision became effective on March 30, 1975.

      . Under 18 Pa.C.S. § 1354(c)(11), it is specified that a fine may be imposed as a condition of probation.

      . We see no merit in appellant’s contention that the handwritten words “fine and costs forthwith” appearing above Judge Moss’s signature on the A.R.D. order (R. 16a), raise a question as to whether the $300.00 amount was actually a payment to the county for the cost of superintending the conditions of the program. Such an abbreviated notation refers only to the proper time for the payments required by, and specifically listed in an order.

      . Appellant’s belated assertion that the $300.00 sum might not reflect the actual cost of superintending the program is misplaced. Mr. Cassidy and his attorney, Martin J. Cunningham, Jr., who also represents him in this matter, agreed to the $300.00 figure in negotiations with the district attorney and at the hearing at which the A.R.D. order was granted. Appellant obtained dismissal of criminal charges upon completion of his program without ever questioning whether the amount was appropriate. We fail to see why, three weeks after obtaining the benefits of his agreement, he should have been permitted to argue that the figure was arbitrary and therefore ought to be deemed a “fine”. Rather, appellant has waived any objections to the amount of his payment to the county, having accepted the full benefits of the A.R.D. agreement. See Commonwealth v. Walton, 483 Pa. 588, 600, 397 A.2d 1179, (1979) (defendant’s failure to object to the amount of restitution ordered as arbitrary at his sentencing hearing held a waiver of this issue, where the court had legal authority to enter a restitution order). See also, Commonwealth v. Preston, 488 Pa. 311, 319 n. 3, 412 A.2d 524, 528 n. 3 (1980); Commonwealth v. Shoemaker, 462 Pa. 342, 343, 341 A.2d 111 (1975).


author: SPAETH, Judge:

text:
    452 A.2d 528
    COMMONWEALTH of Pennsylvania v. Bernard KARASH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 5, 1982.
    Filed Nov. 5, 1982.

      Patrick J. Flannery, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for burglary entered pursuant to a guilty plea. Appellant was sentenced under the Youthful Offender’s Act to the State Correctional Institution at Camp Hill for an indefinite minimum term and a maximum term of five years. He argues that his sentence is invalid because the lower court considered television and newspaper stories that after his guilty plea, he had escaped. Appellant says that the court should not have considered the stories because he had not yet been tried for and convicted of escape. We agree, and therefore vacate the sentence and remand for resentencing.

A sentence is invalid if the record discloses that the sentencing court may have relied in whole or in part upon an impermissible consideration. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Commonwealth v. Schwartz, 275 Pa.Superior Ct. 112, 418 A.2d 637 (1980); Commonwealth v. Schwartz, 267 Pa.Superior Ct. 170, 406 A.2d 573 (1979); Commonwealth v. Cruz, 265 Pa.Superior Ct. 474, 402 A.2d 536 (1979). This is so because the court violates the defendant’s right to due process if, in deciding upon the sentence, it considers unreliable information, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (sentence based on three convictions, two of which were unconstitutional); Commonwealth v. Schwartz, 275 Pa.Superior Ct. 112, 418 A.2d 637 (1980) (ex parte communication from police that defendant was major drug dealer); Commonwealth v. Cruz, supra (testimony from detective that defendant was major drug dealer), or information affecting the court’s impartiality, Commonwealth v. Schwartz, 267 Pa.Superior Ct. 170, 406 A.2d 573 (1979) (judge “heard something about” defendant on television), or information that it is otherwise unfair to hold against the defendant, Commonwealth v. Bethea, supra (court considered fact that defendant had chosen jury trial).

Here the record discloses that in deciding upon the sentence, the lower court considered television and newspaper stories that after the guilty plea, on which he was being sentenced, appellant had escaped. At the sentencing hearing, the court said:

THE COURT: I’m further required to advjse you the reason the Court has imposed the total incarceration and that is based upon the crime that was committed warrants incarceration. You are definitely in need of rehabilitation because of the crimes committed here and the crimes committed in New Jersey of which you’ve been convicted and sentenced on and there’s a definite need for incarceration. I’ve also taken into consideration the crimes that you have committed in Pennsylvania since the time that, you returned here which show a lack of rehabilitation or learning on your part that the law must be complied with. This specifically, I guess, will be the escape and I believe the information that you took a vehicle during the course of that escape to ride around in. The Court feels, while I’m not sentencing you for those crimes, they have been part of the Court’s consideration in imposing this sentence yvhich the Court has just imposed. Again, there is a need for punishment for your criminal career and also a definite need of rehabilitation which you have not seemed to have grasped to date.
N.T. 8/17/81, 8-9 (emphasis added).

At the hearing on appellant’s petition to modify the sentence, the court further explained:

THE COURT: Okay. So the record reflects, I don’t know whether it’s in there or not, but the matter of Mr. Karash’s incident was on all of the local television channels and in all the local newspapers. It was the only source of the Court’s information, and actually showed pictures of Mr. Karash being apprehended in handcuffs at the scene, and the Court was aware that he was supposed to be in jail awaiting sentence and not to be out.
And if the Court didn’t say—didn’t acknowledge that it had knowledge of those incidents, I think would be improper, not to acknowledge that the Court was aware of it.
N.T. 10/16/81, 14.

The lower court was correct in disclosing its knowledge of the television and newspaper stories. Commonwealth v. Schwartz, 275 Pa.Superior Ct. 112, 418 A.2d 637 (1980). The court should not have relied upon the television and newspaper stories in deciding upon appellant’s sentence. Appellant had not yet been tried for the escape, and when asked about it before the lower court, he pleaded the fifth amendment. He therefore stood before the court presumably innocent of that crime. The court nevertheless stated that it “believe[d] the information [in the television and newspaper stories] [that appellant] took a vehicle during the course of that escape to ride around in,” and that that belief was “part of the Court’s consideration in imposing this sentence.” The court thereby denied appellant’s right to the presumption of innocence, and, in sentencing him as though he had been proved guilty of escape, his right to due process. Commonwealth v. Schwartz, 275 Pa.Superior Ct. 112, 418 A.2d 637 (1980); Commonwealth v. Schwartz, 267 Pa.Superior Ct. 170, 406 A.2d 573 (1979); Commonwealth v. Cruz, supra. In view of this, it is of no consequence that appellant’s sentence may have also been based on legitimate considerations. Commonwealth v. Bethea, supra.

The judgment of sentence is vacated and the case remanded for resentencing.