author: KELLY, Judge:

text:
    533 A.2d 716
    Jerry M. BEARY, Appellee, v. CONTAINER GENERAL CORPORATION, a corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 9, 1986.
    Filed Oct. 1, 1987.
    Reargument Denied Nov. 25, 1987.

      Chester S. Fossee, Pittsburgh, for appellant.
    John R. Gavin, Oil City, for appellee.
    Before DEL SOLE, KELLY and POPOVICH, JJ.
   KELLY, Judge:

This appeal arises from the trial court’s denial of appellant’s (Container) motions for judgment n.o.v. and a new trial. We modify judgment and affirm.

The instant action commenced when appellee/plaintiff, Jerry Beary (Beary), filed suit sounding in trespass against Pennsylvania Electric Company and appellant Glass Containers Corporation, now Container General Corporation. Container joined Edwards Tank Erection, Inc. (Edwards), Beary’s employer, as an additional defendant upon a theory of contractual indemnity.

The first trial commenced October 19, 1981 and, at the conclusion of the testimony on October 23, 1981, the trial court directed the jury to return a verdict for Container and against Beary. On appeal to this Court, the trial court’s directed verdict was reversed, and the case remanded for a new trial. Beary v. Pennsylvania Electric Co. and Glass Containers, 322 Pa.Super. 52, 469 A.2d 176 (1983).

The second liability trial commenced November 13, 1984 and resulted in a jury verdict that Beary and Container were equally negligent. However, when the jury returned on November 20, 1984, after a recess, to decide the damages issue, the court declared a mistrial because several jurors had read a newspaper article concerning the case, contrary to the trial court’s admonition. The jury eventually impanelled to decide the amount of the damages returned a verdict of $500,000. The verdict was molded to $250,000 for Beary, plus delay damages of $133,424.27 pursuant to Pa.R.C.P. 238. On March 5, 1986, Container’s motion for new trial or for judgment n.o.v. was denied. Timely appeal to this Court followed.

Appellee Beary was injured in the course of his employment on September 13,1976. His employer, Edwards Tank, had entered a contract to construct a 100,000 gallon fuel tank on the premises of Container General Corporation. A mobile crane with an extendable fifty-five (55) foot boom was to be used in the construction of the tank. Steel plates were to be welded together to form the tank. Appellant was to provide the necessary electrical power for Edwards’ welding equipment. (N.T. at 56).

Before work could begin, a panel box weighing somewhere between 200 and 500 pounds had to be connected to the source of electricity located in the “batch house.” The batch house was located up a narrow gravel road, approximately 174 feet from the construction site. The Edwards crew used the boom of the mobile crane to transport the panel box uphill to the batch house, as was their standard practice (N.T. at 447); appellee Beary walked backwards alongside the box, holding the wires to steady the box while directing the crane operator up the narrow road. (N.T. at 132-135). Electrical wires were suspended 43 feet above the roadway, 130 feet from the construction site, between the construction site and the batch house. As Beary proceeded, facing the crane and walking backwards uphill, the boom of the crane came into contact with the electrical wires. Beary was severely injured as a result of his exposure to the electrical current.

On appeal, Container raises the following questions:

I. Was [Container] free of causal negligence so as to entitle it to a judgment n.o.v.?
II. Did [Edwards Tank] the independent contractor create a dangerous condition on the land of [Container] that [Container] was not required to anticipate so as to entitle [Container] to a judgment n.o.v.?
III. Did the lower court err in permitting [Beary’s] expert to testify on the basis of matters beyond the record to opinions on ultimate issues, which opinions were confusing, misleading and prejudicial to [Container] so as to entitle [Container] to a new trial?
IV. Did the lower court err in granting [Beary’s] points for charge Nos. 9, 13 and 15 when the evidence in the case failed to support said charges so as to entitle [Container] to a new trial?
V. Did the lower court err in granting [Beary’s] points for charge No’s, [sic] 6 and 18 when the evidence in the case failed to support said charges so as to entitle [Container] to a new trial?
VI. Did the trial court err in assessing Rule 238 delay damages during periods while [Container] had a directed verdict in its favor?

We shall address each question seriatim. Initially, we note that our sole duty on review of a denial of judgment n.o.v., or refusal of a new trial:

... is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner, [the appellee herein] the benefit of every favorable inference reasonably to be drawn from the evidence. All unfavorable testimony and inferences must be rejected. As to reviewing on appeal the grant or refusal of a new trial, we will not reverse the lower court’s action ‘absent an abuse of discretion or error of law which controlled the outcome of the case.’

McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982).

I.

Container first argues that the record is devoid of evidence establishing any causal negligence on the part of Container. Specifically, Container argues Beary failed to show that:

[Container] knew or should have known of the existence on its land of a condition which involved an unreasonable risk of harm to [Beary], that [Container] should have expected that [Beary] would fail to protect itself against the known danger, and that [Container] failed to exercise reasonable care to protect [Beary] against said danger.

(Container Brief at 10). Container’s argument is premised upon Beary’s alleged failure to demonstrate Container’s liability under Section 343 'of the Restatement of Torts, Second, which provides in part:

§ 343. Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
§ 343 A. Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Beary’s burden of proof in this matter was to set forth facts sufficient to establish by a fair preponderance of the evidence that Container had not met its duty of care under Section 343. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 540, 488 A.2d 21, 23 (1985). Our review of the record indicates that Beary demonstrated the electrical wires over the roadway were of high voltage (34,500) (N.T. at 101). Container’s chief electrician knew the high voltage nature of the power flow. (N.T. at 101). Neither he, nor any other of Container’s employees communicated this knowledge to Beary or other Edwards’ employees. (N.T. at 61, 76, 97, 445). Beary does not remember what, if anything, he was told about the wires, although his employer testified he warned Beary to look for the wires. Although the wires may have been obvious, or at least known, the nature of the current carried by the wires was not obvious. (N.T. at 447). See also Beary, supra, 469 A.2d at 179; Stimmel v. Kerr, 394 Pa. 609, 148 A.2d 232 (1959). None of Container’s employees considered turning off or deenergizing the lines. (N.T. at 83-84). The wires were not covered or insulated despite the availability of such precautionary covers. (N.T. at 82-83, 107). Nor were there signs posted to warn of the danger. (N.T. at 35, 102, 139). Container’s employees did not know who, if anyone, was in charge of briefing Edwards as to known safety hazards at the work site. (N.T. at 36-38).

Container’s employees were aware that a crane would be used in the construction process (N.T. at 34, 55, 57) and saw the specific crane in operation immediately before the accident. (N.T. at 71,102-103). Container knew the 500-pound panel box would have to be transported up the road, under the wires, to the batch house. None of Container’s employees, however, considered or planned for the possibility that the crane or its boom might be used to carry the box and thus would travel under the electrical wires. (N.T. at 72, 105).

A transmission line is a dangerous instrumentality and the law requires that the possessor of such instrumentality exercise a high degree of care. Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957) (emphasis added); accord Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 123 A.2d 636 (1956).

Enigmatic as is the basic element of electricity, no one with the slightest mentality is ignorant of its vast potentialities for destruction. The degree of care required to protect people from this devastating element is no less than that required to prevent poisonous reptiles from breaking loose from their restraining enclosures. As the proprietor of ferocious beasts may not, by pleading excessive cost for confining them, escape liability for the loss of life occasioned by his savage wards, so also the owner of high-voltaged electric machinery may not avoid re sponsibility for the devastation caused through his failure to adequately guard such uninhibited devices. This court has declared that when human life is at stake the rule of due care and diligence require everything that gives reasonable promise of its preservation to be done regardless of difficulties or expense.

Cooper v. Heintz Manufacturing Co., 385 Pa. 296, 304, 122 A.2d 699, 703 (1956). (Musmanno, J.). (Emphasis added).

We thus find that ample evidence of Container’s negligence was presented to the jury. The jury could reasonably infer from the evidence presented that Container knew that the wires posed a dangerous condition, and should have realized that the presence of dangerous high voltage wires, uninsulated, and with no warning signs posted nearby, when combined with the use of a mobile crane, would present an unreasonable risk of harm to Edwards’ employees. The jury could also infer that Beary might not recognize the extremely high voltage nature of the wires. Finally, they could infer that by neglecting to warn, to install insulating covers, or to post warning markers, Container failed to “exercise ... reasonable care to protect” Edwards and his workmen from the extreme degree of danger the wires posed. Restatement Torts, Second, § 343.

Moreover, in the alternative, the jury could infer from the evidence presented that, even if the electrical wires were obvious, Container should have anticipated that while working in the vicinity of the wires with its mobile crane and its boom, Edwards’ employees might be distracted and via the boom inadvertently come into contact with the wires. As Comment f to Section 343 A of the Restatement states, in part:

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invi tee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. (See §§ 466 and 496 D.) It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

Quoted in Skalos v. Higgins, 303 Pa.Super. 107, 117, 449 A.2d 601, 605-606 (1982). (Emphasis added). Thus the jury could also infer that Container failed in a duty of care owed under Section 343 A.

II.

Container’s second contention is that Edwards, as an independent contractor, created the hazard to its own employee, by causing its crane to be moved into the power line, and consequently, Container should be relieved from responsibility for Beary’s injury. Container cites Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 189 A.2d 271 (1963) in support of its contention. However, we deem Hader factually distinguishable from the facts herein.

In Hader, Coplay Cement Manufacturing Company had entered a contract whereby an independent contractor was to install a stone crusher and to erect a structure to house the crusher on Coplay’s property. While carrying some construction material, Hader, an employee of the independent contractor, slipped and fell some 35 feet through an open space in the construction. Coplay exercised no control over the work, or the premises where the work was to occur. In Hader, our Supreme Court noted that the owner of the land had delivered possession of his land to the independent contractor; therefore, the Court held that:

[a]n owner of land who delivers temporary possession of a portion of the land to an independent contractor owes no duty to the employees of the independent contractor with respect to an obviously dangerous condition on that portion of the land in the possession of the contractor.

Hader, supra, 189 A.2d at 277. (Emphasis added). See also Restatement of Torts 2d, § 328E.

Herein, there are several distinguishing factors. First, we have not found any evidence that Container delivered possession of any portion of their land to Edwards; certainly there was no delivery of that portion of land where the wires or the batch house were located, as Container remained responsible for providing electricity to power Edwards’ welding equipment. (N.T. at 56). Thus, the Hader rule of an independent contractor’s duty does not apply to our factual situation.

Second, the danger posed by installing a stone crusher in Hader is inherently different from the danger posed by electrical wires in the vicinity of the independent contractor’s work site. Whereas the installation of any machine may pose a limited danger, the presence of high voltage wires poses a high degree of danger. Thus the duty imposed on whomever controls the electricity must be correspondingly greater. Beary, supra, 469 A.2d at 180; Yoffee, supra; Cooper, supra. Because Container remained in control of the electricity and thereby responsible for the safety of all those to whom it presented a foreseeable danger, we find no factual predicate for relieving Container of its duty of care.

Third, Container was aware that Edwards would have to move the weighty panel box under the wires to the batch-house. Yet Container’s employees failed to anticipate or ascertain how the box was to be transported. Edwards did not unilaterally create the hazard by moving its crane; Container created the hazard by failing to warn Edwards not to move the crane under the wires. Accordingly, we agree that there was sufficient evidence to sustain the verdict, and Container is not entitled to a judgment n.o.v. on this issue.

III.

Container’s third contention is that the lower court erred in admitting the testimony of Mr. Alexander R. Chamberlin, who was qualified by the court to testify as an expert witness. Container argues that Chamberlin’s opinion testimony “was based on mere speculation and assumed facts never established of record.” (Container’s Brief at 23).

The law regarding the qualification of a witness as an expert is well-established.

When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is so distinctively related to some science, business or occupation as to be beyond the knowledge of the average layman and if answered in the affirmative, the next question the court should ask is whether the witness has sufficient skill, knowledge or expertise in that field as to make it appear that his opinion will probably aid the trier in his search for truth.

Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 35, 485 A.2d 408 (1984), appeal dismissed 508 Pa. 643, 500 A.2d 428.

Moreover, “[i]f a witness has any reasonable pretension to specialized knowledge on the subject under investigation, he may testify, and the weight to be given to his evidence is for the jury.” (Per Flaherty, J., with two Justices concurring and one concurring in the result). Rutter v. Northeastern Beaver County School Dist., 496 Pa. 590, 598, 437 A.2d 1198, 1201 (1981), quoting Kuisis v. Baldwin-LimaHamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). Finally, “the question of the qualifications of an expert witness is one for the discretion of the trial court.” Morris v. Moss, 290 Pa.Super. 587, 591, 435 A.2d 184, 186 (1981).

Beary’s expert, Chamberlin, was a certified professional engineer with more than forty years experience in the fields of mechanical and mining engineering. He was knowledgable of the standards for industrial safety, and had worked with and planned for the use of high voltage electricity in various construction projects. (N.T. at 210-11). There is no question that these engineering occupations are beyond the knowledge of the average layperson. His background, therefore, qualified him as an expert witness to aid the jury in its deliberations. Dambacher, supra.

However, Container maintains Chamberlin based his opinion on facts not of record. “Absent some basis in fact, opinion testimony is inadmissible and to admit such evidence would be an abuse of the trial court’s discretion.” Rose v. Hoover, 231 Pa.Super. 251, 254-55, 331 A.2d 878, 880 (1974). Accord, Palmeri v. Com., Pennsylvania State Police, 82 Pa.Cmwlth. 348, 474 A.2d 1223 (1984), affirmed 508 Pa. 544, 499 A.2d 278 (1985). (“While an expert’s opinion need not be based on an absolute certainty, an opinion based on mere possibilities is not competent evidence.”)

Specifically, Container cites Chamberlin’s alleged speculation as to the weather conditions at the time of the accident, the noise levels present at the scene of the accident, and other “distractions on a work site that can cause men to be hurt____” as facts not in the record forming the basis of Chamberlin’s opinion. (N.T. at 248, Appellant’s Brief at 24). Container also argues with Chamberlin’s ultimate conclusion: “[t]he fact that work was proximate to the 34,500 foot power line was a hazard____” (N.T. at 250).

A qualified expert may be permitted to assert relevant facts not generally known but known to him because of his special training and experience, but such special training and experience must be confined to technical knowledge which is beyond that of average men and to that which would be of assistance in determining ultimate issues in case.

Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967). (Emphasis added). See also Pirches v. General Acc. Ins. Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986). A statement of opinion is admissible if the witness has had an opportunity of personal observation and has obtained some impressions from observation. Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974).

We find, upon examination of the trial transcript, that when Chamberlin testified as to the weather conditions, he was not expressing an opinion as to actual weather conditions the day of the accident, but rather explaining his personal observations of the accident site, and his knowledge that:

... copper conductors when they are in the air for a comparatively short time they get a coating on the outside which is green in color____ They are virtually invisible, especially if you are against a bright sky where you have the sun in back of you, shining on it and they are green.

(N.T. at 232-33). (Emphasis added). Chamberlin did not say the day of the accident was a sunny day, but rather the wires were “virtually invisible” in any type of weather, “especially” sunny days. Chamberlin’s testimony was properly admitted, as founded both upon his special training and experience, and his personal observations.

Next, our examination of the trial transcript demonstrates that Container’s counsel forcefully objected to prevent Chamberlin from expressing any baseless speculation as to noise levels at the scene of the accident. (N.T. at 239, 240, 241). The trial judge sustained Container’s objections to impermissible, baseless speculation. (N.T. at 242). Thus, Container’s argument that speculation was permitted is not supported by the record. When Chamberlin stated the basis for his opinion as to distractions at the work site, he was limited to specifying those noise-producing machines known through previous testimony to be in operation at the time of the accident:

A. Gasoline powered Galion crane; the gasoline powered welder that was being used before the electrical welders were connected; the fact the trucks, tractor-trailers hauling sand drove along the road beside those tanks; the fact that immediately adjacent to the power lines in back of the first tank was a road that appears to be fairly heavily traveled by cars and trucks____

(N.T. at 243-244). (See N.T. at 128-129 for testimony providing factual basis). Thus, there was no error in permitting Chamberlin’s limited testimony. Rose, supra.

Finally, Container contends that Chamberlin’s opinion that the unmarked, uncovered powerline was dangerously “approximate” or “near” to the work site is not borne out by the facts in evidence. The work site was 130 feet from the power lines. (N.T. at 53). Chamberlin based his opinion (that 130 feet was “near”) on his expert knowledge of normal, acceptable work practice, and his knowledge of the speed and mobility of the crane involved in the accident. (N.T. at 260-290). Any speculative or baseless testimony expressed by Chamberlin was struck by the trial judge. (See N.T. 237, 240, 244).

While it is true that expert opinion on ultimate issues is not admissible where such testimony would confuse, mislead or prejudice the jury, Bessemer Stores v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 496 A.2d 762 (1985), we note that Chamberlin’s testimony did not serve to confuse, mislead, or prejudice but rather to aid the jury in the determination of complex issues beyond the ordinary ken of a layperson. Dambacher, supra; Reardon, supra.

Chamberlin’s testimony that, given the crane’s potential and actual operation, the wires were dangerously near the work site, was properly admitted as an opinion since it was premised on facts in the record and facts from his own area of expertise. Whether the wires presented an unreasonable danger was only one of the “ultimate issues” to be decided by the jury. The weight to be given Chamberlin’s opinion along with the other evidence presented on that issue, including the defense experts, was for the jury to determine. Rutter, supra; Kuisis, supra. The trial court did not abuse its discretion by permitting the jury to consider Chamberlin’s opinion. Container, accordingly, is not entitled to a new trial on this issue.

IV. and V.

Container’s fourth and fifth contentions involve allegations of trial court error in the jury instructions. Initially, we note our standard in reviewing such allegations. “A trial judge has wide latitude in charging the jury and may use any particular language provided the language used adequately and fully conveys the laws applicable to the facts of the case.” Seewagen v. Vanderkluet, supra, 488 A.2d at 26 (1985).

“A jury ‘charge should be clear and precise and so couched as to not confuse the jury.’ However, ‘contradictory instructions are not always reversible error. An erroneous statement of law in one portion of the charge can be rendered harmless by a subsequent correct statement of the same principles if the jury is clearly instructed that the latter statement ... is the correct statement.’ ” Dunlap v. Larkin, 342 Pa.Super. 594, 605, 493 A.2d 750, 756 (1985) (citation omitted). “Whether the jury should be instructed on a given point of law, of course, depends upon the facts and the issues in the case. It is axiomatic that where there is a dispute as to what the relevant facts are, this dispute must be submitted to the jury along with instructions on points of law which, with a view to the evidence in the case, are relevant.” Ferrick v. Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 190, 484 A.2d 744, 748 (1984). “In reviewing a trial judge’s charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.” Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, supra, 489 A.2d at 1305.

Container contends that it was error to give Charge No. 9 as it was not based on any evidence, it was improperly premised on the case of Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957), and it served to confuse and mislead the jury. That portion of the charge provided:

If you determine that the wires were not patently obvious to Beary and unknown to him as a business visitor, he is not required to make an independent survey to determine whether the possessor of the land has in fact performed his duty.

(N.T. at 458). However, our review of the record indicates there were factual disputes as to whether appellee Beary had seen or knew of the wires, and as to whether the wires were clearly visible. (N.T. at 364-367, 445, 232-33). This factual dispute was for the jury to decide. Ferrick, supra. Accordingly, the jury was properly instructed that, should they decide that Beary was unaware of the wires, the law would not require Beary to independently survey appellant’s land to find dangerous conditions such as wires. Furthermore, the charge was neither confusing nor misleading but an accurate statement of applicable law as to a landowner’s duties to a business invitee. The principle of law enunciated in Stark, supra, was applicable to the facts of this case. The jury had to determine appellant’s duties before finding a breach of that duty.

Jury Charge No. 13, Container contends, was not required by evidence in the record. We disagree. The trial court charged:

Our law of torts has traditionally required a higher degree of care in situations where the risk of injury is greater. Vigilence must always be commensurate with danger. A high degree of danger always calls for a high degree of care.

(N.T. at 458-459). As a matter of law, electricity is a dangerous instrumentality requiring “a high degree of care.” Yoffee, supra. “The degree of care required to protect people from this devastating element is no less than that required to prevent poisonous reptiles from breaking loose from their restraining enclosures.” Cooper, supra, 122 A.2d at 703. The learned trial judge prefaced his charge with a statement that, if the "jury determined that the location of the power line might be a source of peril, then the jury must also determine if “... [Container] met with its requirement of a higher degree of care.” (N.T. at 458). Since the possible breach of Container’s duty of care was an essential issue in litigation, and sufficient evidence was presented to demonstrate Container’s negligence, including evidence concerning the location of the powerlines, this charge was properly submitted to the jury.

Charge No. 15 again correctly restates the law, that power lines do not always constitute an obvious danger. Stimmel v. Kerr, supra. The charge read:

The presence of the power lines in and of itself did not indicate obvious danger. Plaintiff was not bound to know the degree of danger involved. Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, is not bound to know its degree in any particular case.

(N.T. at 459). Container argues this charge is not supported by the evidence. However, the charge is supported by the testimony of several employees that they were unaware of the amount of current conducted through the wires. (See N.T. at 139). Even several of Container’s employees did not know the voltage carried by the wires. (N.T. at 34, 53). Accordingly, we find no merit to Container’s arguments concerning Charge No. 15.

Container contends Charge No. 6 was error because “there is no evidence in the record whatsoever to indicate that [Container] had any reason to expect that [Beary] would be distracted and consequently injured,” (Container’s brief at 36), nor any evidence that distractions did occur. The instruction stated:

There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases, the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious or will forget what he has discovered, or fail to protect himself against it.

(N.T. at 457-58). (Emphasis added). Our review of the record disclosed there was testimony as to: the noise emanating from machines and passing trucks at the scene of the accident; an expert opinion given that such noises would constitute a distraction; and appellant’s employees were aware of the sources of the noise. (See N.T. at 128-129, 243-244). Accordingly, this charge was properly founded upon facts in the record. Moreover, it is not a confusing charge, read in the context of the charge as a whole, as it does tell the jury the significance of distractions in the context of Container’s duty of care. Reilly, supra.

Container contends that Charge No. 18 was improper because it was premised on Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963), a case with facts distinguishable from the facts herein. The charge, as delivered, stated:

There is evidence in the record that the plaintiff was warned of the high-tension lines. The area in which the plaintiff was engaged in his work at the time of the accident was in the vicinity of these lines. You must decide whether or not the plaintiff could become so engrossed in his work as to make him temporarily oblivious to any other surrounding danger.

(N.T. at 459). (Emphasis added). Specifically, Container argues that the decedent in Skoda was injured as a result of a danger totally unrelated to his usual job function, whereas Beary was injured in the performance of his job. Thus, Container argues, Beary, while performing his job, should not have become so engrossed. Beary, however, correctly states that the jury did ultimately find that he was contributorily negligent. Thus, Container does not and cannot demonstrate how this instruction was prejudicial. Where a party fails to demonstrate harm, we will not hold it to be reversible error. Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965).

Container also argues that charge 18 was confusing, and directs our attention to the jury’s subsequent question of the instruction: “You read something about a worker getting so involved in his job that something happens and we didn’t get the point of law.” (N.T. at 471). The trial court cured whatever confusion may have existed by its response to the question. The trial judge sent into the jury a copy of charge 6 (see reproduced supra) giving the point of law applicable. Any alleged error concerning Charge No. 18 was, therefore, rendered harmless. See Dunlap, supra; Reilly, supra. Accordingly, we find no merit to Container’s claims of error in this instruction.

Having reviewed the charge to the jury in its entirety, we find no error. The trial judge properly instructed the jury on all the relevant law. Dunlap, supra; Ferrick, supra.

VI.

Container’s final contention involves the trial court’s assessment of delay damages; the court molded the verdict to include delay damages in the amount of $133,424.27, pursuant to Pa.R.C.P. 238. The court below included delay damages from the date of filing the complaint through the judgment rendered at the second trial, inclusive. Container contends that the court erred in assessing delay damages during the period between the original directed verdict in Container’s favor, October 1981, and this Court’s reversal of that verdict, which Container erroneously dates as February 28, 1984.

Container properly cites Hawthorne v. Dravo Corp., et al, 352 Pa.Super. 359, 508 A.2d 298 (1986) in support of its argument. In Hawthorne, we held that no delay damages should accrue from the date of the entry of the first judgment, until that judgment was reversed on appeal. During that appeal period, the verdict winner is entitled to rely on the validity of the judgment. Hawthorne, 508 A.2d at 308. Thus Container’s argument has merit, and we conclude that any delay during the appellate process is not a matter for the trial court to consider when assessing delay damages under Rule 238.

The portion of the judgment which exceeds $250,000.00 is vacated and we modify the order such that no delay damages be awarded for the period from October 23, 1981, the date of filing the appeal from the first judgment in this case, through November 18, 1983, the date this Court awarded Beary a new trial. The amount of delay damages to be rescinded is $51,644.00.

As so modified, the judgment is affirmed.

      . PECO was granted an uncontested compulsory nonsuit.

      . The court bifurcated Beary’s claim against Container as to liability and damages. Container’s indemnification claim against Edwards was likewise bifurcated.

      . "The presence of the power lines in and of itself did not indicate obvious danger. Plaintiff was not bound to know the degree of danger involved. ‘Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case.’ ”
        Beary, supra, 469 A.2d at 179. (Emphasis added). Because evidence was presented that Container should have expected Beary would fail to realize the danger, there is no need to address Container’s argument that Beary failed to protect himself. § 343(b).

      . Our examination of the record reveals Container's counsel failed to object to Chamberlin’s statement at trial. In order to preserve an issue for appeal, a litigant must make a timely specific objection at trial. Failure to object leads this Court to conclude the issue is waived. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). We nonetheless will discuss Container’s contention.

      . Container argues that Deary's job, and not the law, required that he survey the land. However, Deary’s job function is not at issue with this charge; rather, that issue properly was covered in the instructions on contributory negligence. This charge was necessary to cover the law as to appellant’s duty under Restatement Torts, 2d § 343.

      . Container and Deary dispute whether this charge went to Deary’s contributory negligence or to Container’s liability. (Container’s brief at 33; Deary’s brief at 28). It goes to Container’s duty as possessor of the land. See note 5, supra. The trial court premised this instruction by noting: “an invitee in certain circumstances must be protected even from obvious dangers." (N.T. at 458).

      . We note Container incorrectly dates this Court’s previous award of the new trial as February 28, 1984. Our order in Beary v. Pennsylvania Electric Company, supra, which awarded Beary a new trial, was issued by the Superior Court Prothonotary on November 18, 1983. Appellee informs us that February 28, 1984 was the date the record was received in the lower court. (Appellee’s brief at 35). However, the date of issuance of the order by the Prothonotary of this Court is the effective date of the remand, rather than the date the record was received in the lower court. See Pa.R.A.P. 2521.

      . We note that since the filing of this appeal and our decision in Hawthorne, there have been intervening changes in the law of delay damages. In Craig v. Magee Memorial Rehab. Center, 512 Pa. 60, 515 A.2d 1350 (1986), our state Supreme Court reconsidered its previous mandatory rule of delay damages, and directed that, henceforth, delay damages should not be assessed without reference to the respective fault of the parties. Craig applies retroactively only where an appellant has properly preserved a Rule 238 due process challenge. Morgan v. Monessen Southwestern Ry. Co., 513 Pa. 86, 518 A.2d 1171 (1986); Bolus, et al. v. United Penn Bank, et al., 363 Pa.Super. 247, 525 A.2d 1215 (1987). Appellant did not raise any due process challenge in his appellate brief, but only a challenge based upon Hawthorne. Our analysis of Craig assures us that Craig does not change the point of law decided in Hawthorne; delay due to an intervening appeal is not to be considered by a trial court when molding a verdict in a second trial.

      . Container, relying erroneously on the date of February 28, 1984 instead of November 18, 1983, overestimates the amount of delay damages to be rescinded as $58,766.72. (See Container’s brief at 43). See footnote 7, supra.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    533 A.2d 727
    COMMONWEALTH of Pennsylvania, v. Richardo HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 14, 1987.
    Filed Oct. 8, 1987.
    Reargument Denied Dec. 3, 1987.

      Thomas J. Michael, Pittsburgh, for appellant.
    Pamela A. Runco, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

Richardo Harris was tried by jury and was found guilty on two counts of robbery and two counts of criminal conspiracy. Post-trial motions (and supplemental post-trial motions) were denied, and Harris was sentenced to serve two consecutive terms of imprisonment for not less than two and one-half (2V2) years nor more than ten (10) years. On direct appeal from the judgment of sentence, Harris argues that his identification as a result of a photographic display should have been suppressed because (1) it was suggestive and (2) the array was not fully preserved. He also contends that the trial court erred by (1) denying a motion in limine to prevent reference at trial to the fact that he had been identified from a photo array displayed less than an hour after the robberies and (2) denying a motion for mistrial following a statement by counsel for a co-defendant during closing argument to the effect that identification had been made by a witness who “went through the books.” Finding no merit in these arguments, we affirm the judgment of sentence.

At or about 6:30 p.m. on December 4, 1984, Debra Readel and Kimberly Ann Mellon arrived at the Elks Club in McKeesport, Allegheny County, to attend a Christmas party. As they approached the front door of the club from the parking lot, they were assaulted and their purses were taken by two black males. The area was well lighted, and one of the men came face to face with Mrs. Readel. He grabbed her, punched her on the side of the head, threw her to the ground, and grabbed her purse. The second man took a purse from Mrs. Mellon. After police had been summoned, Mrs. Readel went to police headquarters where she was shown a book containing more than two hundred photographs. From these photographs she picked Richardo Harris as her assailant. The best that Mrs. Mellon could do was select a photograph of one who looked like the man who had taken her purse. On the following day, after a photograph of Curtiss Porter had been added to the display, Mrs. Mellon identified him as the man who had grabbed her purse. The man tentatively selected on the prior evening as one who looked like her assailant had been the brother of Curtiss Porter.

Harris and Porter filed omnibus pre-trial motions requesting suppression of the testimony identifying them as the robbers, and a joint hearing was held thereon. Suppression, however, was denied. After a first trial had resulted in a mistrial, Harris filed a motion in limine to prohibit testimony at the second trial which would fix the time of the photo identification of him as between thirty minutes and an hour after the crime. This evidence, he argued, would suggest to the jury that he had a prior criminal record because the police had his photograph on file. This motion was also denied. Appellant and Porter were tried together, and both men were found guilty.

In reviewing an order denying a motion to suppress evidence, a reviewing court has a duty

‘... “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” ... In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’

Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984), quoting Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976) (citations omitted). See: Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987); Commonwealth v. DiNicola, 348 Pa.Super. 405, 409, 502 A.2d 606, 608 (1985).

Appellant contends that this Court’s decisions in Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974) and Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977) require the suppression of an identification made from a photographic display where the exact photo array from which his picture was identified has not been preserved. However, in Commonwealth v. Flynn, 314 Pa.Super. 162, 173-174, 460 A.2d 816, 822 (1983) this Court was faced with a situation in which the Commonwealth had been able to reproduce sixteen out of twenty-five photographs used in a photo array. Additionally, the Commonwealth produced testimony describing the photographic identification procedure and the victim’s immediate recognition of the appellant’s photograph. Evidence also showed that there had been neither suggestiveness nor coercion toward the victim who made the identification. The Court distinguished Jackson, where the Commonwealth had made no record as to what photos were shown to the victim and where the confrontation between the victim and the suspect had not been conducive to a positive identification. The Flynn court observed that, unlike Jackson, there had been a confrontation between the victim and the defendant which was conducive to a positive identification. On the basis of this factual difference, the Flynn court affirmed a trial court decision which had denied a motion to suppress the photographic identification.

The next year, in Commonwealth v. Cooper, 333 Pa.Super. 559, 563-566, 482 A.2d 1014, 1016-1017 (1984), the Superior Court reviewed a case in which the Commonwealth had been able to reproduce only eighteen of more than five hundred photographs used in a photo display. In affirming the trial court’s finding that the photographic identification was admissible during the defendant’s trial, the Court observed the different factual circumstances which had existed in Jackson and Hodge as follows:

Appellant, however, in attempting to apply Jackson and Hodge to the instant case, fails to consider the difference in circumstances between Jackson and Hodge, and the instant case, and, thus, misinterprets their applicability.
In the instant case the Commonwealth made available for review 18 photographs from the original array (including that of the appellant) which were shown to the complainant. In contrast, in both Jackson and Hodge the Commonwealth produced none of the photographs viewed by the witnesses. Moreover, in the instant case, Detective Wojciechowski (the officer who presented the photographic array to Mrs. Frazier), testified that all of the photographs, including those which were missing, were standard police photographs of adult black males. Mrs. Frazier, too, testified, explaining that there were no other pictures of the appellant among the photographs that she looked through and, also, that she stopped looking at the photographs the instant she saw appellant’s photo, and that she immediately recognized him without any doubt as being the man who had robbed her.

Commonwealth v. Cooper, supra, 333 Pa.Superior Ct. at 564, 482 A.2d at 1016. The Cooper court also observed that both Jackson and Hodge had been decided on the basis of facts which brought into question the fairness of the procedures being challenged. In Cooper, the Court determined, the array which had been preserved was sufficient to make it “possible to review the fairness of the procedures challenged.” Id., 333 Pa.Superior Ct. at 566, 482 A.2d at 1017.

The facts in the instant case are akin to those in Flynn and Cooper. Here, the Commonwealth was able to produce the book of photographs from which Harris had been identified, although the exact composition thereof had been altered. The evidence showed that a photograph of Curtiss Porter had been added; and that there may have been other changes in the book, since the police had continued to use the book in other cases. However, police testimony also showed that when Harris had been identified, the book had contained numerous pages, with six black and white photographs of black males on each side of a page, and that they had been arranged at random without names or dates attached to the photographs. The evidence was also that there had been only one photograph of Harris in the book, that the police had not assisted Mrs. Readel in making an identification, and that she had experienced no difficulty in selecting Harris as her assailant. Mrs. Mellon also testified at the suppression hearing that the book of photographs was substantially the same as when she had examined it following the robbery and that the police had neither assisted nor made suggestions during the period of time in which she and Mrs. Readel had examined it. Under these circumstances, we hold, the suppression court did not err by refusing to suppress the identification of Harris made by Mrs. Readel from the book of photographs.

In reviewing a claim that such identification testimony should have been suppressed on the grounds of suggestiveness “we must determine whether the identification procedure was so suggestive and conducive to irreparable mistaken identity so as to deny the accused due process.” Commonwealth v. Thomas, 363 Pa.Super. 348, 352, 526 A.2d 380, 381 (1987). See also: Commonwealth v. Voss, 333 Pa.Super. 331, 337, 482 A.2d 593, 596 (1984); Commonwealth v. Williams, 323 Pa.Super. 512, 524, 470 A.2d 1376, 1383 (1984); Commonwealth v. Linder, 284 Pa.Super. 327, 337, 425 A.2d 1126, 1131 (1981). In the instant case, the facts supported fully the suppression court’s finding that the photographic display had not been suggestive. These facts can be summarized as follows: (1) the Commonwealth introduced the photo book at the suppression hearing; (2) it contained 231 photographs; (3) all of the photographs were of black males; (4) the photographs had been randomly organized in the book; (5) all of the photographs were the same size; (6) there were no names or dates on any of the photographs; (7) there was only one picture of appellant in the book; (8) the police in no way sought to influence Mrs. Readel while she was looking at the photo book; (9) Mrs. Readel had no difficulty in picking appellant as her assailant; and (10) the identification was made approximately one hour after the robbery. These facts so unequivocally dispelled appellant’s contention of suggestiveness that the suppression court was moved to comment: “It is probably the most fair photo array possible.” We agree.

Having found that the photo array was not suggestive, we also reject appellant’s contention that Mrs. Readel’s in-court identification testimony was tainted by the photo array. Commonwealth v. Thomas, supra 363 Pa.Super. at 352, 526 A.2d at 381; Commonwealth v. Cooper, supra 333 Pa.Super. at 566, 482 A.2d at 1017.

The next argument urged by appellant is that the trial court erred by denying a motion in limine made prior to trial to eliminate all reference to the close proximity in time between the crime and Mrs. Readel’s identification of his photograph. Appellant reasoned that any such reference would permit the jury to infer that he had been involved in prior criminal activity. The standard by which to measure references to photographic identifications in determining whether they create an inference of past criminality is set forth in Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972) as follows:

The suggestion that any reference to a defendant’s photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected. We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference____ (Emphasis added.)

This standard was further explained in Commonwealth v. Reiss, 503 Pa. 45, 50, 468 A.2d 451, 453 (1983) as follows:

Where there is no indication, as was true here, that the photographs were “mugshots” or that they came from police files, it is not error for a witness to testify that he identified a defendant from photographs shown to him by police. Commonwealth v. Carlos, 462 Pa. 262, 341 A.2d 71 (1975). Additionally, the photographs were never displayed, marked or referred to at trial. See Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973). The testimony involved in this case consisted of three references to photographs of the accused during two days of trial. This court has consistently held that passing reference to photographs of the accused, which are not pursued by either counsel as the questioning of the witness continues, does not constitute grounds for a new trial. Commonwealth v. Craft, 455 Pa. 616, 317 A.2d 213 (1974). See also, Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981), (new trial was not mandated where the Commonwealth twice elicited witness testimony regarding photographic identification of defendant). (Emphasis added.)

See also: Commonwealth v. Bey, 294 Pa.Super. 229, 239, 439 A.2d 1175, 1180 (1982). The Court in Reiss, supra 503 Pa. at 50-51, 468 A.2d at 454, observed further that the jury’s awareness that the victim had been shown one hundred photographs was not alone sufficient to create an inference that the photographs were part of police files.

Essential to appellant’s argument is that, given the short period of time between the crime and the identification, the police could not have obtained the photograph of appellant from any place other than a mug book or their files. A similar argument was rejected in Commonwealth v. Reiss, supra at 50, 468 A.2d at 453-454, where the Court said:

Defendant would have us believe that the fact that his picture was in the possession of the police, without any explanation as to how it was obtained, would cause the jury to infer prior criminal conduct. We disagree. The jury could easily have believed that the police had photographs of individuals who had no criminal records, for example, the jury could have inferred that the photographs came from a neutral source; or the jury may not even have questioned the source of the photographs. To hold that the jury drew the inference that defendant had engaged in prior criminal activity on these facts alone would be an unreasonable and unsubstantiated conclusion.

See also: Commonwealth v. Brown, 511 Pa. 155, 512 A.2d 596 (1986). Moreover, as the trial court observed, the proximity in time between identification and the commission of the crime was far more likely to raise in the minds of the jury the permissible inference that such close proximity enhanced the credibility of Mrs. Readel’s identification, rather than raising the impermissible inference that appellant had a past criminal history. The trial court did not err by denying appellant’s motion in limine.

Appellant’s motion for mistrial was based upon a remark made by co-defendant’s counsel during closing argument. The precise comment which appellant challenged was “But, anyway, Officer Palestra also said that Debbie’s dad, who was a police officer, was present when she went through the books.” Appellant contends that this remark allowed the jurors to draw an inference that he had a history of criminal conduct.

A mistrial should only be granted when the jury “could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Commonwealth v. Shepherd, 269 Pa.Super. 291, 294, 409 A.2d 894, 895 (1979), quoting Commonwealth v. Allen, supra 448 Pa. at 181, 292 A.2d at 375. In the instant case, the reference to “books” was, without more, inadequate reason for granting a mistrial. In Commonwealth v. Reiss, supra 503 Pa. at 48, 468 A.2d at 452-453, both the victim and a police officer testified that the identification had been made after the victim had been shown two packets of photographs with fifty photos in each packet. The Court summarized the applicable law as follows: “Where there is no indication ... that the photographs were ‘mugshots’ or that they came from police files, it is not error for a witness to testify that he identified a defendant from photographs shown to him by police.” Id., 503 Pa. at 50, 468 A.2d at 453. So, too, in the instant case, the remark by counsel for the co-defendant did not refer to mugshots or police files, but only to books. This was no more likely to create an inference of prior criminal conduct on appellant’s part than the reference to the packets of photographs shown to the witness in Commonwealth v. Reiss, supra. The trial court did not err when it denied appellant's motion for a mistrial.

The judgment of sentence is affirmed.

POPOVICH, J., recused himself and did not participate in the consideration or decision of this appeal.


author: OLSZEWSKI, Judge:

text:
    533 A.2d 732
    COMMONWEALTH of Pennsylvania, Appellee, v. Dawn D. GRETZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1986.
    Filed Oct. 16, 1987.
    Reargument Denied Dec. 10, 1987.

      Richard S. Wasserbly, Doylestown, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence imposed following a guilty plea to a charge of driving under the influence of alcohol. The sole issue is whether the trial court erred in concluding that the Drunk Driving Act required that it impose a minimum sentence of thirty days imprisonment under the circumstances of this case. For the reasons which follow, we vacate judgment and remand for resentencing.

This matter involves two separate arrests for driving under the influence of alcohol (DUI). Appellant, Dawn Gretz, was first arrested and charged with DUI in Chester County, Pennsylvania, on May 2, 1984. She thereafter applied for and was accepted into the Accelerated Rehabilitative Disposition (ARD) program. While under the súpervision of that program, appellant was arrested and charged with DUI in Bucks County, Pennsylvania, on January 18, 1985. Following appellant's guilty plea to this second offense, the Honorable Kenneth G. Biehn of the Court of Common Pleas of Bucks County sentenced appellant to a term of forty-eight hours to one year imprisonment pursuant to the first offender provision of the Drunk Driving Act, 75 Pa.C.S.A. § 3731(e)(1)(i). Upon learning of this conviction, the district attorney of Chester County requested and obtained appellant's removal from the ARD program. Thereafter, on March 31, 1986, appellant appeared before the Honorable Thomas G. Gavin of the Court of Common Pleas of Chester County and pled guilty to the DUI charge that was first in time of arrest, but second in time for sentencing purposes. On the same date, Judge Gavin sentenced appellant to thirty days to twenty-three months imprisonment pursuant to the second offender provision of the Drunk Driving Act, 75 Pa.C.S.A. § 3731(e)(1)(ii). Appellant filed a motion to modify sentence which Judge Gavin denied. It is the latter sentence which appellant challenges in this appeal.

In sentencing appellant for the May 2, 1984 offense (1984 offense) at issue here, the trial court concluded that appellant had properly been sentenced as a first offender for the January 18, 1985 offense (1985 offense). Next, believing that appellant had “previously been convicted” in view of the guilty plea and sentencing for the 1985 offense, the court concluded that it was required to sentence appellant as a second offender for the 1984 offense. Upon review, we find that both conclusions were in error. We find specifically that appellant should have been sentenced as a second offender for the 1985 offense and as a first offender for the 1984 offense.

Sentencing for DUI convictions is governed by § 3731(e) of the Vehicle Code. That section provides in part:

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

75 Pa.C.S.A. § 3731(e). In concluding that appellant’s sentence for the 1985 offense was proper, the trial court interpreted these provisions to mean that only acceptance and completion of ARD shall be considered a first conviction. We recently rejected this interpretation in our en banc decision in Commonwealth v. Becker, 530 A.2d 888 (Pa.Super., 1987). In that case we held that the plain language of § 3731(e)(2) compels the conclusion that acceptance of ARD is sufficient to trigger an enhanced penalty upon sentencing for a subsequent offense. Id., at 890. Accordingly, the trial court in the case at bar erred in concluding that appellant’s sentence for the 1985 offense was proper and in relying on that conclusion in imposing the sentence at issue in this appeal.

We address next the trial court’s conclusion that it was required to treat appellant as a second offender in imposing sentence for the 1984 offense, which occurred first in time. In reviewing this conclusion, we must ascertain when a person “has previously been convicted of an offense under this section” so that an enhanced sentence is mandated by § 3731(e)(1)(ii). Specifically, we must determine whether one has been previously convicted for purposes of that provision where he is convicted on a subsequent DUI charge prior to sentencing, but after commission of the offense for which he is being sentenced (the principal offense).

In construing statutes, we are to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S.A. § 1921(a). When the language of a statute is clear and unambiguous, we are to construe its provisions in accordance with their plain meaning and common usage. Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). When the words are not explicit, however, the intention of the General Assembly may be ascertained by considering other matters. 1 Pa.C. S.A. § 1921(c). We find that the language of § 3731(e)(1)(ii) is not explicit as it does not indicate when a person must have been previously convicted in order to trigger its enhanced penalty. Accordingly, we may consider matters other than the language itself.

Appellant urges that we apply to the penalty provisions of § 3731 a principle relied upon in our decisions in Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435, allowance of appeal granted, 513 Pa. 640, 521 A.2d 932 (1986); and Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197, allowance of appeal granted, 511 Pa. 619, 515 A.2d 898 (1986). In those cases, we interpreted the guidelines promulgated by the Pennsylvania Commission on Sentencing, see 204 Pa.Code 303.6 reprinted at 42 Pa.C.S.A. § 9721, as conforming to the principle that “prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers.” Commonwealth v. Mourar, supra, 349 Pa.Super. at 592, 504 A.2d at 202. We found that this principle was central to most recidivist statutes.

Section 3731(e)(1)(ii) is an enhanced sentencing provision applied to recidivists. In our view, as we stated in Mourar and Wolfe:

Legislation authorizing the imposition of increased punishment on recidivists is directed at those who persist in criminality after having once been convicted of an offense. It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.

Commonwealth v. Mourar, supra, 349 Pa.Super. at 593, 504 A.2d at 203 (quoting 39 Am.Jur.2d Habitual Criminals § 6); Commonwealth v. Wolfe, supra, 349 Pa.Super. at 420, 503 A.2d at 438 (quoting 39 Am.Jur.2d Habitual Criminals § 6). As we further noted in those cases, when a criminal statute is susceptible of two constructions, both reasonable, it is not the construction that is supported by the greater reason that is to prevail but the one that operates in favor of the defendant’s liberty. Commonwealth v. Mourar, supra, 349 Pa.Super. at 595-96, 504 A.2d at 204; Commonwealth v. Wolfe, supra, 349 Pa.Super. at 418-19, 503 A.2d at 437. For these reasons, we apply the principle behind Mourar and Wolfe here and hold that the mandatory minimum sentence of § 3731(e)(1)(h) does not apply unless the previous conviction precedes commission of the principal offense.

In light of this holding, the trial court erred in concluding that it was required to impose a minimum sentence of thirty days in this case. As we noted in Mourar, however, “[i]t is only the logic behind the sentence and not necessarily the length to which we take exception.” Commonwealth v. Mourar, supra 349 Pa.Super. at 596, 504 A.2d at 204. The court’s sentence of thirty days to twenty-three months is well within the statutory maximum of two years for a misdemeanor of the second degree. Consequently, on remand, the trial court is free to impose the same sentence, provided that it is otherwise lawfully entered.

In view of the foregoing, we vacate the judgment of sentence and remand for resentencing in accordance with this memorandum. Jurisdiction is relinquished.

      . December 15, 1982, P.L. 1268, No. 289, § 9, 75 Pa.C.S.A. § 3731.

      . We note that Becker was filed subsequent to the trial court’s decision in this matter.

      . As we stated in Mourar, however:
      We do not deny the propriety of consideration by the court of other offenses in determining sentence. "Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized [in sentencing].” Common

        wealth v. Lupatsky, 341 Pa.Super. 338, 491 A.2d 845 (1985) (citation omitted).

        Commonwealth v. Mourar, supra, 349 Pa.Super. at 595-96, 504 A.2d at 204.


author: PER CURIAM: CIRILLO, President Judge,

text:
    533 A.2d 735
    COMMONWEALTH of Pennsylvania v. Deboe PICKERING, Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed Oct. 28, 1987.

      Carmela R. Presogna, Assistant Public Defender, Erie, for appellant.
    Tim Lucas, Assistant District Attorney, Erie, for Com., appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   PER CURIAM:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Erie County. After a jury trial, appellant Deboe Pickering was found guilty of five counts of delivery of marijuana and five counts of possession of marijuana. The court sentenced him to five consecutive terms of six to twelve months, finding that the other counts merged for sentencing purposes. We affirm.

The evidence presented indicates Pickering sold nickel bags of marijuana to an undercover police officer on five different occasions. At trial, the police officer testified she had destroyed her original notes in which she had recorded the transactions between herself and the defendant. She stated she used the notes to prepare her written reports which were made available to defense counsel.

Appellant presents two issues for our review: (1) whether the Commonwealth’s failure to produce the police officer’s original notes constituted a denial of the constitutional right to confrontation; and (2) whether the trial court abused its discretion in imposing an allegedly excessive sentence of two and one-half to five years confinement.

Appellant urges us to adopt a rule requiring the police to preserve original informal notes which are relevant to a criminal investigation. He argues that effective cross-examination is impossible without access to the notes and such a denial violates his right to confrontation. See U.S. Const. Sixth Amend.; Pa. Const., Art. I, § 9; Pennsylvania v. Ritchie, — U.S. —, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Appellant points out that some federal circuit courts have adopted this prophylactic rule. See, e.g., United States v. Vella, 562 F.2d 275 (3d Cir.1977); United States v. Harrison, 524 F.2d 421 (D.C.Cir.1975). See also Davis, An Approach to Legal Control of the Police, 52 Tex.L.Rev. 703, 712 (1974).

However, the federal cases are controlled by Federal Rule of Criminal Procedure 16 and the Jencks Act, 18 U.S.C. § 3500. These rules control the suppression and destruction of potential evidence in federal criminal prosecutions. In Pennsylvania, our rules have no such provision so the situation is controlled by Commonwealth v. York, 319 Pa.Super. 13, 465 A.2d 1028 (1983), and its progeny.

As a panel of this Court recently explained:
n order for the destruction of [a police officer’s] notes to be a violation meriting a mistrial, proof is required of the following: suppression of evidence by the prosecution after a request by the defense, the favorable character of the evidence for the defense; and the materiality of the evidence.

Commonwealth v. Haber, 351 Pa.Super. 79, 87-88, 505 A.2d 273, 278 (1986) (citing York, supra).

There was no evidence presented that any of the requirements were met in this case. The destroyed notes could not possibly be material because they were substantively incorporated into the officer’s typewritten report which was produced at trial. The handwritten notes would have merely been cumulative evidence.

Appellant’s right of confrontation has not been violated. See U.S. Constitution amend. VI; Pa.Constitution article 1, § 9. As the United States Supreme Court recently held, the Confrontation Clause is not “a constitutionally compelled rule of pretrial discovery.” Pennsylvania v. Ritchie, — U.S. —, —, 107 S.Ct. 989, 999, 94 L.Ed. 40, 54 (1987). The Court stated that the Clause guarantees a defendant “an opportunity for effective cross-examination.” Id. at —, 107 S.Ct. at 999, 94 L.Ed. at 55. As long as the requirements of York are met, the defendant will usually have been afforded such an opportunity.

Appellant has failed to demonstrate how he was denied the opportunity for effective cross-examination of the witness in question. He also failed to allege the notes were destroyed in bad faith. Because he was not denied such an opportunity, the York rule is constitutional as applied to him.

Appellant’s second issue presented for review is whether the trial court abused its discretion in sentencing appellant to two and one-half to five years confinement. He argues the trial court failed to give adequate weight to mitigating factors, resulting in the imposition of an excessive sentence, while also failing to state adequate reasons for the sentence imposed and relying on improper, if not illegal, considerations.

Initially, as this issue concerns the discretionary aspects of sentencing, we must review the appellant’s brief in light of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and Pa.R.A.P. 2119(f) which states:

(f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Tuladziecki requires that the briefing stage deal with the appropriateness of the appeal by showing that “[t]here is a substantial question that the sentence imposed is not appropriate under this chapter (Sentencing).” 42 Pa.C.S. § 9781(b). In this case, unless we are concerned primarily with technical headings rather than procedural compliance with the requirement of the rule, the appellant’s brief does provide, in its statement of questions involve, a substantial question, pursuant to 42 Pa.C.S. § 9781 for the court’s consideration prior to argument on the merits. See appellant’s brief, p. 19 (substantial question headed 2). Then, as required by Pa.R.A.P. 2119(f), a “concise statement of the reasons relied upon” was provided. See appellant’s brief, pp. 19-23 (statement of reasons).

Here, unlike Tuladziecki, the brief presented the issue in proper procedural sequence and in doing so, provides this Court with sufficient legal basis to review the merits of the issue which followed. In Tuladziecki, this Court was presented with the merits from which was gleaned the existence of a substantial question, nunc pro tunc, which was procedurally improper according to the rules. Here, the requirements of Tuladziecki were met in that procedurally the necessary gates were opened permitting a legally proper and logical consideration of the merits before the issues were properly raised. We do not read Tuladziecki to elevate form over substance and to require explicit headings such as “There Exists a Substantial Question” and “Concise Statement of Reasons” when, in fact, the brief contains them in proper stages and substance.

Appellant’s brief in this case is similar to that of appellant in Commonwealth v. Muller, 364 Pa.Super. 346, 528 A.2d 191 (1987), where we found appellant had properly alleged a substantial question (42 Pa.C.S. § 9781(b)) and a concise statement of the reasons relied upon for allowance of appeal (Pa.R.A.P. 2119(f)) even though the sections were not specifically labeled as such.

Here, as in Muller, we “believe the appellant’s statement ..., uncontested by the Commonwealth, [see Commonwealth v. Chase, 365 Pa.Super. 572, 530 A.2d 458 (1987) and Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 529 A.2d 1112 (1987) ] is sufficient within the Pennsylvania Rules of Appellate Procedure ... and in conformity with Tulad ziecki, supra, to permit us to accept this appeal and to consider appellant’s question on the merits.” Id. 364 Pa.Super. at 350, 528 A.2d at 193. Also see Commonwealth v. Lapcevich, 364 Pa.Super. 151 n. 2, 527 A.2d 572 n. 2 (1987).

Having determined the petition for allowance of appeal can properly be granted, we turn to appellant’s brief, where he challenges the discretionary aspects of sentencing and the case record to ascertain whether these issues have, in fact, been preserved for our review. The allegation that the trial court failed to give adequate weight to mitigating factors, thereby imposing an excessive sentence of two and one-half to five years confinement, has been preserved by appellant in his motion for sentencing reconsideration or modification. In that motion, appellant states: “The Court failed to enunciate its reasoning process concerning rejection of defendant’s strengths in terms of his care of his son, his boxing career, and his efforts to obtain vocational training.” (Record at document 12, p. 3.)

A review of the sentencing guidelines reveals a sentence well within the minimum range for each conviction. With a prior record score of “1” and an offense gravity score of “5”, the initial offense falls under the following guidelines:

Minimum 3-12

Aggravated 12-18

Mitigated 1½-3

The guidelines below are applicable to the remaining convictions:

Minimum 0-12

Aggravated 12-18

Mitigated non-confinement

While a minimum term of six months imprisonment on each of five convictions was imposed on appellant, an examination of the guidelines shows he could have been sentenced to a minimum of twelve months on each count without the trial court going beyond the minimum guidelines range. Additionally, we note that under The Controlled Substance, Drug, Device and Cosmetic Act the statutory maximum term of imprisonment for each of appellant’s convictions is five years, 35 P.S. § 780-113(f)(2). Appellant certainly cannot, therefore, claim his sentence is illegal; his sentence is just ten per cent (10%) of the possible maximum.

A review of the sentencing transcript reveals the trial judge did give adequate weight and consideration to the necessary factors to be used in the determination of an appropriate sentence. As this Court said in Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985),

It is well settled that Pennsylvania trial judges are vested with broad sentencing discretion with which the appellate courts will not interfere absent manifest abuse. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Black, 321 Pa.Super. 44, 467 A.2d 884 (1983). In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983); Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983). ‘A trial judge is required to state on the record his reasons for the particular sentence imposed and these articulated reasons should reflect the judge’s consideration of the sentencing code, the circumstances of the offense, and the character of the offender.’ Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246, 1250-51 (1983) (footnote omitted). The statement of the court at the sentencing proceedings need not specifically cite or include the language of the sentencing code; it need only demonstrate that the court has considered the factors specified in the code. Id., 315 Pa.Superior Ct. at 221, 461 A.2d at 1251; Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982).

Id., 341 Pa.Superior Ct. at 270, 491 A.2d at 257.

In the instant case, while the sentencing judge did not specifically address each of the mitigating factors set forth by appellant, he did refer to his consideration of the arguments of counsel (where the mitigating factors were argued), the sentencing guidelines and the presentence report including the defendant’s statement contained therein. Our careful review of the more than five pages of the sentencing colloquy and briefs, record and transcripts leads us to conclude the sentence imposed upon appellant was proper. He was sentenced within the minimum/standard guideline range and we conclude that sentence was not excessive under the totality of circumstances present.

Judgment of sentence affirmed.

CIRILLO, President Judge, filed a concurring and dissenting statement.

CIRILLO, President Judge,

concurring and dissenting:

I join in the majority’s result, as well as the majority’s analysis and disposition of the first issue. However, I respectfully dissent to the majority’s decision to address appellant’s second issue — whether the trial court abused its discretion in sentencing appellant to two and one-half to five years confinement. Appellant’s brief simply does not comply with Pa.R.A.P. 2119(f) or Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and this court therefore has no jurisdiction to review this issue on appeal.

      . As to applying the guidelines in this case, they would not be made irrelevant by Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), as footnote 2 therein provides:
      2 This ruling is applicable to cases where the issue [of constitutionality] has been "properly preserved at all stages of adjudication up to and including any direct appeal." Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).
      We note that the Supreme Court, in Sessoms, did not bar the trial court from considering the guidelines in determining an appropriate sentence. Also, Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987) provides at note 4, "Inasmuch as Samuels failed to preserve his challenge to the constitutionality of the sentencing guidelines, Commonwealth v. Sessoms, [supra] is inapplicable.”