author: OLSZEWSKI, Judge:

text:
    580 A.2d 769
    COMMONWEALTH of Pennsylvania v. Shane EDDOWES, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1990.
    Filed Aug. 13, 1990.
    Reargument Denied Oct. 19, 1990.

      Joshua M. Briskin, Philadelphia, for appellant.
    Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY, and JOHNSON, JJ.

         Kelly, J., did not participate in the consideration or decision of this case.

   OLSZEWSKI, Judge:

Shane Eddowes appeals from the judgment of sentence for first-degree murder, aggravated assault, conspiracy, and possession of an instrument of crime. He challenges the weight and sufficiency of the evidence, alleges prosecutorial misconduct, and asserts that the trial court erred in admitting evidence of prior bad acts. We find no error in the prosecutor’s comments or in the admission of evidence of prior bad acts. We further find the evidence sufficient with regard to all counts except possession of an instrument of crime.

On July 11, 1987, Dean Seiss and friends left a party near appellant’s home. They encountered appellant and a friend and a fight erupted between Seiss and appellant. Seiss chased appellant back to appellant’s home while appellant called out for his friends to help. Appellant entered his home, picked up a rifle, and returned. He waved the rifle and stated “I’m crazy enough to kill you.” Appellant then went back inside the house and returned with another object in his hand. He slashed Richard Hepp with the object and then stabbed Seiss with it.

Appellant’s friends arrived and chased Seiss into the street, where he collapsed. The friends beat and kicked Seiss until police arrived. Seiss died from the injuries he received that night.

Appellant was tried before a jury and found guilty of first-degree murder, aggravated assault, conspiracy, and possessing an instrument of crime. He filed timely post-trial motions, which were denied. This appeal followed.

Appellant asserts that the evidence was insufficient as a matter of law to sustain the verdicts. Upon reviewing the sufficiency of the evidence, we must view the evidence and all permissible inferences therefrom, in the light most favorable to the Commonwealth and determine whether the evidence is sufficient to prove the defendant’s guilt beyond a reasonable doubt. Commonwealth v. Ruffin, 317 Pa.Super. 126, 463 A.2d 1117 (1983).

Appellant first argues that there was insufficient evidence to establish that he was the one who committed the offense. We find that the evidence was sufficient to establish that it was appellant who killed Seiss. Testimony by Richard Hepp, a key Commonwealth witness, implicated appellant as having used a weapon upon on a vital part of Seiss’s body. Hepp testified that appellant slashed him across the stomach with a shiny object and then stabbed Seiss. N.T. at 248-249.

Moreover, other evidence also supports the conclusion that Seiss was stabbed by appellant, and began to flee but collapsed from the stab wound before the crowd caught up to him and beat him. Commonwealth witness, Andrew Hartman, testified that he saw appellant run at Seiss holding his right arm out from his body with his right hand clenched into a fist. N.T. at 377. He further testified that following the attack, Seiss seemed to be hurt since he appeared to be limping as he ran away. N.T. at 381-384. Tim Whatley, a defense witness, testified that he saw Seiss collapse before the crowd reached him. N.T. at 580. In addition, Dr. Catherman testified that a person with a stabbing wound such as Seiss’s would not be immediately incapacitated but would be able to run until the loss of blood pressure forced, him to collapse. N.T. at 501-504.

Based upon the above review in the light most favorable to the Commonwealth, we find that there was sufficient evidence to prove beyond a reasonable doubt that it was appellant who stabbed Seiss.

Next appellant argues that there was insufficient evidence to convict him of murder because evidence showed that he acted under provocation or imperfect self-defense so as. to negate the element of malice and reduce the crime to voluntary manslaughter.

Voluntary manslaughter is defined by the Crimes Code as a killing committed without lawful justification but “under a sudden and intense passion resulting from serious provocation.” 18 Pa.C.S. § 2503(a). To determine whether there is adequate provocation to reduce homicide to voluntary manslaughter, the test is whether a reasonable man confronted with this same series of events would become impassioned to the extent that his mind was incapable of cool reflection. Commonwealth v. McCusker, 448 Pa. 382, 389-390, 292 A.2d 286, 290 (1972).

We find that there was sufficient evidence to support the jury’s rejection of a voluntary manslaughter verdict. The evidence indicated that appellant retreated to the safety of his home and closed the door, but then returned with a rifle. After waving the rifle around, appellant returned to his home once again and reemerged with a shiny object which he used to slash Richard Hepp’s stomach and then stab Seiss. This evidence indicates that appellant had time to reflect upon his actions, and did indeed engage in such reflection.

Appellant also contends that the verdict is improper since he was acting under an unreasonable belief that his life was in danger. We find no merit to this contention. Statutory law provides:

A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing, but his belief is unreasonable.

18 Pa.C.S.A. § 2503(b). The evidence demonstrated that appellant was not acting under the unreasonable belief that he was in danger. Appellant chose to leave the safety of his home twice — first, to wave a rifle around and once again to stab Seiss. In addition, there was evidence that appellant and 10 to 15 of his friends chased the defendant and beat him until the police arrived. This does not show that appellant believed (either reasonably or unreasonably) that he was in danger.

In addition, appellant asserts that his state of intoxication negated the specific intent necessary for a conviction of first-degree murder, and instead warranted a conviction of third-degree murder.

The Pennsylvania Supreme Court has held that a defendant’s intoxication may prevent his actions from having the specific intent to kill which is required for murder of the first degree. Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971). In addition, 18 Pa.C.S.A. § 308 provides that evidence of intoxication may be introduced whenever it is relevant to reduce murder to a lower degree. This Court, however, has held that mere intoxication will not negate the specific intent to kill, but rather a defendant must be overwhelmed by alcohol to the point of losing his or her faculties before an act of murder will be reduced to murder in the third degree. Commonwealth v. Carter, 377 Pa.Super. 93, 113-15, 546 A.2d 1173, 1183 (1988). Despite conflicting evidence as to whether appellant was intoxicated, the evidence is sufficient to show that appellant was not so overwhelmingly intoxicated as to negate his specific intent to kill. The evidence showed appellant had the specific intent to kill because, while waving his rifle, he said, “I’m crazy enough to kill you.” Furthermore, the evidence demonstrated that appellant was not so intoxicated as to be losing his faculties since appellant returned to his home, put down his rifle, and reappeared with the shiny object he used to stab Seiss. In addition, evidence also showed that appellant chased and beat Seiss and fled as the police arrived. This indicates that the defendant was capable of reasoning and understanding.

For all of the reasons stated above, the judgment of sentence for first-degree murder is affirmed.

Appellant also asserts that the evidence was insufficient to find a criminal conspiracy. We disagree. The essence of a criminal conspiracy is the agreement to perform an unlawful act. Commonwealth v. Savage, 388 Pa.Super. 561, 569-71, 566 A.2d 272, 276 (1989); 18 Pa.C. S.A. § 903. This agreement need not be written or express; tacit agreement may be inferred from the circumstances. Id.

Commonwealth testimony established that appellant called his friends to help while Seiss was attacking him. N.T. at 242. While appellant attacked Seiss, a group of 10 to 15 people arrived and chased Seiss into the street, where they caught him and beat him. N.T. at 249. Appellant participated in the affray. N.T. at 440-441. These facts do not suggest spontaneous, independent yet contemporaneous assaults, as in Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982). On the contrary, the record shows a concerted effort indicative of a tacit agreement to assault Seiss. Accordingly, the judgment of sentence for criminal conspiracy is affirmed.

Appellant further alleges that the court did not have jurisdiction to enter a judgment for aggravated assault because the bill of information charged only simple assault. The record does not support his contention. Bill of Information 1758 charged four counts of assault, two of which were aggravated assault against Richard Hepp. Furthermore, the evidence was sufficient to support this conviction. Testimony showed that appellant pointed a rifle at Hepp and slashed at Hepp with the same instrument used to kill Seiss. N.T. at 246-248. The fact that appellant did not cause any serious injury is irrelevant, as the statute punishes attempts as well as completed assaults. 18 Pa.C.S.A. § 2702(a). Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978), cited by appellant, is completely inapposite, as that case turns on the question of intent, not the severity of the injury. The judgment of sentence for aggravated assault is affirmed.

The conviction for possessing an instrument of crime, however, must be reversed. Appellant contends that the evidence did not support a conviction for possessing an instrument of crime because the weapon used was a screwdriver. The Commonwealth does not dispute that the murder weapon was a screwdriver; and indeed, the evidence is insufficient to show that the weapon was anything other than a screwdriver. The only question, then, is whether a screwdriver is an instrument of crime in this context. We find that it is not.

Statutory law defines an instrument of crime as:
(1) Anything specially made or specially adapted for criminal use; or
(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

18 Pa.C.S.A. § 907. The mere fact that a particular item was used in the perpetration of a crime does not prove that the item is an “instrument of crime.” Commonwealth v. Rodriguez, 316 Pa.Super. 203, 214, 462 A.2d 1310, 1316 (1983).

The Commonwealth asserts that the screwdriver is an instrument of crime because it is commonly used in the crime of burglary and Eddowes’ use of it was not manifestly lawful. We reject this argument. To determine whether an object is an instrument of crime under the second statutory criterion, we must look at the context. An item may be an instrument of crime in one context, but not in another. Compare Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980) (finding that a tire iron is not an instrument of crime in an assault case) with Commonwealth v. McNeil, 388 Pa.Super. 108, 564 A.2d 1289 (1989) (finding that a tire iron is an instrument of crime in burglary). The Commonwealth has not shown that the screwdriver was used in the context of burglary, nor has it shown that screwdrivers are commonly used for assault and murder. Accordingly, the judgment of sentence for possession of an instrument of crime must be vacated.

Appellant also contends that the verdicts were against the weight of the evidence. We disagree.

Our Supreme Court has recently opined that “a challenge to the weight of the evidence is not appealable.” Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989), following Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728, 733 n. 3 (1987). Nevertheless, these cases do not expressly preclude us from addressing a weight of the evidence claim. Furthermore, neither of these cases involved a direct challenge to the weight of the evidence; therefore, this pronouncement is dictum rather than binding authority. This Court has traditionally reviewed weight of the evidence claims; accordingly, we will continue to address the merits of such claims until directed to the contrary by our Supreme Court.

A trial court may award a new trial if the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Hunter, 381 Pa.Super. 606, 616-18, 554 A.2d 550, 555 (1989). The decision to grant or deny a new trial on that ground will not be reversed absent an abuse of discretion. Id. After careful review of the record and transcript, we find that the verdicts of guilty of first-degree murder, aggravated assault and conspiracy are not so contrary to the evidence as to shock one’s sense of justice; accordingly, a new trial is not appropriate.

Appellant also claims that the prosecutor committed misconduct in his closing argument. He asserts that the prosecutor improperly appealed to the jury’s sympathy by stating that “Dean Seiss is six feet under the ground in a grave.” We find that the prosecutor’s comments were fair response to the defense’s argument; accordingly, we find no error.

The prosecutor’s comment must be viewed in context. In his closing argument, defense counsel said:

The thought of it, I have my own son. It’s horrible. There is nothing that can be worse than what occurred in this particular case.
Shane’s family, they are over there, his brother, his father, his brother, "his friends, his relatives. They have an interest in the outcome of this case also and that is that their son didn’t do it. He has been punished and accused in this particular case in this incident, and they have had to go through the worse type of torture or let’s just say that it is equal, believe me, knowing about it as I do, it is equal to the torture of having lost a child because they can lose their child just like that, the same thing, and I’m not going to minimize in any way what happened.

N.T. at 777-778.

In response to this plea for sympathy, the prosecutor said:

[A] large part of the defense, ladies and gentlemen, I submit to you has been an attempt to kind of twist the facts a little bit in terms of who Dean Seiss is and what he’s all about and who this defendant is and what he’s all about, in an attempt to make you feel sympathy, to decide this case on sympathy and portray Dean Seiss as something that he’s not quite, and portray the defendant as something that he not quite is.
It started in the opening argument, when Mr. Briskin said to you, and this is something that will be implanted on my brain for the next year. He said to you you are going to hear evidence that Shane Eddowes is as much a victim of this case as Dean Seiss is, as much a victim as Dean Seiss.
Dean Seiss is six feet under the ground in a grave, and [appellant’s] walking around. When [appellant’s] parents want to visit him, they go see him. When Dean Seiss’ parents want to visit him, they go to the graveyard, and they tell you that he’s as much a victim as Deán Seiss.

N.T. at 884-885.

In a vacuum, the prosecutor’s comments might be considered improper; however, our Supreme Court has given prosecutors greater leeway when they respond to defense pleas for sympathy. See, e.g., Commonwealth v. Perkins, 478 Pa. 116, 133-38, 373 A.2d 1076, 1085-1086 (1977); Commonwealth v. DeHart, 512 Pa. 235, 255-57, 516 A.2d 656, 667 (1986), cert. denied in 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). We find that the prosecutor’s comments in this case, viewed in context, do not justify a new trial.

Appellant further argues that the trial court erred in admitting testimony of a prior confrontation between appellant and Seiss. Appellant claims that this evidence of a prior bad act was unfairly prejudicial. The trial court found that this evidence was admissible, as it tended to show motive. We agree with the trial court.

Evidence of prior bad acts is ordinarily inadmissible; however, such evidence may be admitted to show motive or intent. Commonwealth v. Pacell, 345 Pa.Super. 203, 206-08, 497 A.2d 1375, 1377 (1985). This evidence may be admitted even if the prior act is somewhat remote in time. See Commonwealth v. Curry, 318 Pa.Super. 490, 465 A.2d 660 (1983) (prior confrontation between defendant and victim occurred two or three years before the assault in question).

In the present case, the Commonwealth called several witnesses to testify regarding a prior fight between appellant and Seiss. These witnesses reported that approximately six months before Seiss’s death, Seiss was at a bowling alley with friends. N.T. at 124-125. Seiss and appellant fought, and appellant threw a hammer at Seiss’s head. N.T. at 128-130. A few days after the fight at the bowling alley, appellant was still angry about the incident. N.T. at 199-200. On the night of his death, Seiss apparently picked the fight with appellant because of the incident at the bowling alley. N.T. at 243-244. This evidence was relevant to show motive; accordingly, the trial court did not abuse its discretion by admitting it.

Judgment of sentence for murder in the first degree, criminal conspiracy, and aggravated assault are affirmed. Judgment of sentence for possession of an instrument of crime is vacated.

      . Dr. Catherman described the fatal wound as atypical of knife wounds. The entry was jagged and rectangular, rather than smooth and elliptical. The wound was 1 centimeter long by .3 centimeters wide and 53A inches deep. The wound was consistent with the theory that Seiss was stabbed with a screwdriver. See N.T. at 493-494, 499-501.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    580 A.2d 776
    Wesley L. POMPOSINI, Appellee, v. T.W. PHILLIPS GAS AND OIL COMPANY, T.W. Phillips Gas and Oil Co., a Pennsylvania corporation, and B.D. Phillips, Jr., Appellants. Wesley L. POMPOSINI, Appellant, v. T.W. PHILLIPS GAS AND OIL COMPANY, T.W. Phillips Gas and Oil Co., a Pennsylvania corporation, and B.D. Phillips, Jr., Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed Aug. 31, 1990.
    Reargument Denied Oct. 17, 1990.

      Kenneth W. Behrend, Pittsburgh, for appellant (at 628) and appellee (at 787).
    Carolyn M. Branthoover, Pittsburgh, for appellant (at 787) and appellee (at 628).
    Before ROWLEY, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

When Wesley L. Pomposini acquired title in 1951 to a tract of 175 acres in Conemaugh Township, Indiana County, the tract was encumbered by a 1946 lease “for the sole and only purpose of drilling and operating for oil and gas, with the exclusive right to operate the same for the term of twenty years, and as long thereafter as oil or gas is produced in paying quantities, or operations for oil or gas are being conducted thereon, including the right to commence operations for drilling a well or other wells at any time during the term of this lease____” The lease required the lessee to pay rentals of $43.75 per quarter until it commenced operations, and thereafter the rent was to be determined according to a sliding scale based on gas pressure readings. T.W. Phillips Oil & Gas Co., the lessee, did not establish a producing gas well until 1953 and used it exclusively for production purposes for 62V2 days in 1954. Thereafter, the well was used primarily as a reservoir into which gas was injected and stored. As such, it produced little native gas. Most of the gas came from an interstate gas pipe line. Since 1981, however, the well has been used exclusively for the production of gas.

From 1954 until October, 1979, Pomposini accepted quarterly payments of $18.75 ($75.00 per year), apparently believing them to be payments for the production of gas. When he subsequently learned that the well was being used for storage purposes, he filed suit against the lessee, its predecessor corporation, and its president, B.D. Phillips, seeking compensatory and punitive damages for what he alleged to be unauthorized and fraudulent use of the well for the storage of gas. The complaint did not contain a demand for trial by jury and came on for trial without jury before the Honorable Maurice Louik. Following trial, Pomposini was awarded compensatory damages of $14,850.00, based on the fair rental value of the well during the period in which it was used primarily for storage purposes. Post-trial motions were denied, and both parties appealed from the judgment entered on the trial court’s adjudication.

Pomposini’s failure to demand a jury trial constituted a waiver of the right thereto under Pa.R.C.P. 1007.1. A request for a jury trial was not made until after thé trial without jury was in its fourth day and after an amendment to the complaint had been allowed. The request for jury trial.was denied by the trial court. This did not constitute an abuse of discretion.

. The written lease agreement does not expressly authorize the use of the land or the well thereon for the storage of gas. The lease was solely for the. “purpose of drilling and operating for oil and gas____” Storage can be permitted under such a lease only if it was the intent of the parties to include storage within the grant of authority to operate for oil and gas. The trial court deterniined that storage was not a use contemplated by the parties.

The parties’ intention must be gathered from a reading of the entire agreement. Stewart v. Chernicky, 439 Pa. 43, 49, 266 A.2d 259, 263 (1970), citing New Chapter Coal Co. v. McKee, 411 Pa. 307, 191 A.2d 830 (1963) and Mt. Carmel Railroad Co. v. M.A. Hanna Co., 371 Pa. 232, 89 A.2d 508 (1952). The agreement in this case was prepared by the lessee, which was accustomed to dealing with property of a speculative nature. It is appropriate, therefore, that any ambiguity in the written agreement be construed in favor of the lessor. See: Rusiski v. Pribonic, 511 Pa. 383, 390, 515 A.2d 507, 510 (1986); Ormond Realty v. Ninnis, 341 Pa.Super. 101, 105, 491 A.2d 169, 172 (1985). Therefore, “[a]ll rights claimed by the lessee that are not conferred in direct terms or by fair implication____are to be considered as being withheld by the lessor.” 38 Am.Jur.2d, Gas and Oil § 94 (1968). See also: Ray v. Western Pa. Natural Gas Co., 138 Pa. 576, 20 A. 1065 (1891).

The written agreement between Pomposini and his lessee does not disclose an implied intent to allow gas storage in the well or in the subsurface caverns underlying the same. It is revealing of their intent that the scheme for payment of royalties is based on gas pressure at any well “from which gas is marketed.” The lease does not establish any means for determining the amount of rent to be paid for use of the premises for gas storage. It seems reasonably certain, therefore, that the parties did not contemplate that the premises would be used for the storage of gas.

The Supreme Court of Pennsylvania has observed that, “the traditional oil and gas lease is far from the simplest of property concepts.” Brown v. Haight, 435 Pa. 12, 15, 255 A.2d 508, 510 (1969). A conveyance of the subsurface oil and gas results in a severance of the mineral interests from the surface rights and conveys to the grantee a corporeal interest in the oil and gas underlying the grantor’s property. Smith v. Glen Alden Coal Co., 347 Pa. 290, 299, 32 A.2d 227, 232 (1943); Barnsdall v. Bradford Gas Co., 225 Pa. 338, 343, 74 A. 207, 208 (1909). Here, however, Pomposini merely demised an interest in the oil and gas, albeit for as long as there remained oil and gas to be produced in paying quantities. The severance of the mineral rights under these circumstances must be narrowly construed. The right to extract gas did not include the right to use the cavernous spaces owned by the lessor for the storage of gas in the absence of an express agreement therefor. Cf. Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 296, 25 A. 597, 598 (1893); Emeny v. U.S., 188 Ct.Cl. 1024, 412 F.2d 1319, 1323, (1969). See also: Ellis v. Arkansas Louisiana Gas Co., 450 F.Supp. 412, 420 (E.D.Okla.), aff'd, 609 F.2d 436, cert. denied, 445 U.S. 964, 100 S.Ct. 1653, 64 L.Ed.2d 239 (1978) and McGinnis, Some Legal Problems in Under ground Gas Storage, 17 Institute on Oil & Gas Law & Taxation 23, 51 (1966) (right to store should not be implied or presumed in the absence of clear evidence of such intent). Because the lessee did not acquire an estate in the caverns and was not authorized to store gas on plaintiffs land, the trial court correctly held that the lessee was liable for the unauthorized storage of gas on Pomposini’s land.

We agree with Phillips, however, that the trial court erred when it imposed liability personally on the president of the corporate lessee. “[0]ne who deals with a corporation, knowing it to be such, cannot enforce an individual liability against the officers or agents who act for the corporation.” Bala Corporation v. McGlinn, 295 Pa. 74, 79, 144 A. 823, 824 (1929). This was not a case in which it was necessary to “pierce the corporate veil” in order to prevent the doing of injustice. Neither was it a case in which personal liability was to be imposed upon corporate officers because of active participation in tortious conduct. Indeed, the record does not disclose that the current president of the corporate lessee participated in the earlier decision to store gas or that the decision to do so was reached for the purpose of depriving Pomposini of his property wrongfully.

The trial court determined that the lessee’s unauthorized use of Pomposini’s land for the storage of gas was attributable to a bona fide misinterpretation of the lease agreement and was not an act of intentional fraud or trespass. This finding is supported by the evidence.

In view of the bona fide nature of the dispute, the trial court properly refused to award punitive damages. Pomposini argues that punitive damages were recoverable because the lessee fraudulently misrepresented the use which it was making of the well. He contends that fraud was demonstrated by evidence that the company always intended to use the well for storage but nevertheless represented that production was ongoing. For this reason, he argues, the lessee misrepresented the use of the well in a letter of January 12, 1954, announcing the completion of a “producing well,” and requesting a supplemental pipeline right of way. Fraud was also demonstrated, he argues, by the regular tender of royalty payments.

Fraud consists of anything calculated to deceive whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look, or gesture. See Frowen v. Blank, 493 Pa. 137, 143, 425 A.2d 412, 415 (1981); In re Thorne’s Estate, 344 Pa. 503, 511 n. 2, 25 A.2d 811, 816 n. 2 (1942). Traditionally, in order to [prove] a cause of action for fraud, the plaintiff was required to establish:

(1) a misrepresentation;
(2) a fraudulent utterance thereof;
(3) an intention by the maker that the recipient will
thereby be induced to act;
(4) justifiable reliance by the recipient upon the misrepresentation;

(5) damage to the recipient as the proximate result. See Pittsburgh Nat’l Bank v. Larson, 352 Pa.Super. 250, 507 A.2d 867 (1986), quoting Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 108, 464 A.2d 1243, 1252 (1983).

Woodward v. Dietrich, 378 Pa.Super. 111, 123-124, 548 A.2d 301, 307 (1988). The burden of proving fraud by clear, precise and convincing evidence in this case was on the lessor. Snell v. Commonwealth, State Examining Board, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980).

In this case, the trial court could readily find, as it did, that Pomposini had failed to prove an intentional misrepresentation by the lessee or its officers and agents. In January, 1954, the lessee had completed drilling a well which was then producing gas. When the lessor granted an additional pipeline right of way, the well was being used for production as the lessee had represented. Similarly, it is not possible to infer an intent to mislead from the tender of royalty payments. These payments were the only method of compensation established by the lease, and it is understandable, therefore, that such payments would be continued after the lessee began using the land for the storage of gas. Finally, the well, in fact, continued to be used to produce gas, albeit in small quantities. Moreover, the storage of gas was not concealed. It was reported to the Pennsylvania Department of Environmental Resources and constituted information available to the general public. We perceive no basis for disturbing the trial court’s refusal to find fraud entitling Pomposini to punitive damages.

The trial court awarded compensatory damages based upon the fair rental value of the underground space used for the storage of gas. We find no error in this measure of damages. In doing so, we expressly reject Pomposini’s contention that he should be allowed to recover as damages the profits derived by the lessee upon resale of the gas. The gas resold by the lessee was gas to which the lessee was rightfully entitled. The profits derived therefrom were earned by the efforts and business acumen of the lessee. Pomposini was not entitled thereto. His loss was to be measured by the unauthorized use of his land which impaired his own use thereof for personal or commercial purposes.

In addition to the fair market value for storage purposes, Pomposini was entitled to recover royalties in amounts specified by the lease for gas produced and sold by Phillips. The amount of the royalties, according to the lease, was to be determined according to the pressures exerted by native gas. Because the lessee used the well for storage purposes, however, both native and foreign gas were commingled. The trial court determined that the amount of gas injected into the well could not be separated with certainty from the amount of natural gas produced and stored. Under these circumstances, Pomposini was entitled to royalties based on the pressure exerted by the gas without regard to whether the gas therein was native or injected from a foreign source. See: Humble Oil Refining Co. v. West, 508 S.W.2d 812 (Tex.1974), cert. denied, 434 U.S. 875, 98 S.Ct. 224, 54 L.Ed.2d 154 (1977). From the amount of royalties thus determined, however, the lessee was entitled to a credit for all rents and royalties previously paid.

Finally, Pomposini argues that the lease terminated at the expiration of the original twenty (20) year term, after which title to all gas underlying the surface of his land reverted to him. As such, he contends, he is entitled to profits derived from all sales of gas thereafter. Although the trial court did not specifically decide this claim, it did make findings of fact which are determinative. The well continued to produce gas before and after 1974, while it was also being used to store additional gas. Thus, the trial court found that, “[i]n using the well for storage purposes, Phillips injected and withdrew gas from the well as it was needed.” The court’s findings are supported by the evidence.

In 1954, when gas was discovered in paying quantities, the lessee’s interest vested. That interest continues as long as gas can be produced in paying quantities or as long as “operations” for gas are being conducted. The lessee’s gas operations have continued uninterrupted since 1954, and, since 1981, the well is again being used solely for production purposes. By the terms of the written lease, therefore, the lessee’s right to extract gas has not terminated. Since 1981, Pomposini is entitled to be compensated according to royalties specified in the written agreement between the parties.

The judgment entered against B.D. Phillips, Jr., is reversed and set aside. The judgment against T.W. Phillips Gas and Oil Co. is vacated, and the case is remanded to the trial court for a determination of damages consistent with the foregoing opinion. Jurisdiction is not retained.

      . The sliding scale was established as follows:
      Should any well not produce oil, but produce gas in paying quantities, and the gas therefrom be sold off the said premises, the consideration to said first party for the gas from each well from which gas is marketed shall be as follows:
      At the rate of two hundred dollars per year while the well shows a pressure of 200 or more lbs., per square inch upon being shut in five minutes in two inch pipe or thirty minutes in larger pipe; at the rate of one hundred dollars per year while the well shows a pressure of 100 or more lbs. per square inch and less than 200 lbs. per square inch upon being shut in five minutes in two inch pipe or thirty minutes in larger pipe; at the rate of fifty dollars per year while the well shows a pressure of less than 100 lbs. per square inch upon being shut in five minutes in two inch pipe or thirty minutes in larger pipe; to be paid quarterly from completion until abandonment of well.

      . The original lessee, T.W. Phillips Oil & Gas Company, assigned the lease as part of a corporate reorganization in 1975 to T.W. Phillips Oil and Gas Co., which is sometimes referred to herein as "Phillips.”

      . Both parties filed post-trial motions. Plaintiff's post-trial motions were filed timely within ten (10) days. Defendants’ post-trial motions were filed twelve (12) days after plaintiffs post-trial motions. This was untimely under Pa.R.C.P. 227.1(c), .which permits defendants to file post-trial motions "within, ten days after the filing of the first post-trial motion[s]." The defendants’ post-trial motions, however, were considered on their merits by the trial court and were not stricken as untimely. The issues raised in these post-trial motions, therefore, have been preserved for appellate review. S.N.T. Industries, Inc. v. Geonopulos, 512 Pa. 330, 516 A.2d 705 (1986); Wittig v. Carlacci, 370 Pa.Super. 584, 586, 537 A.2d 29, 30 (1988).


author: CERCONE, Judge:

text:
    580 A.2d 781
    COMMONWEALTH of Pennsylvania v. Juan PEREZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 2, 1990.
    Filed Sept. 12, 1990.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

Following a trial before the learned court, sitting without a jury, appellant was convicted of Possession with Intent to Deliver a Controlled Substance, in this instance, cocaine. As a result of this conviction, appellant was sentenced pursuant to 18 Pa. C.S.A. § 7508 to a term of imprisonment of not less than one (1) year nor more than two (2) years in the county prison and to pay a fine of five thousand dollars ($5,000). Appellant was also ordered to pay costs in the amount of twenty-five ($25.00). We now have appellant’s timely filed appeal before us.

Appellant presents a single question on appeal, claiming that the trial court erred in sentencing him pursuant to 18 Pa. C.S.A. § 7508 as the Commonwealth failed to produce any evidence relating to an illegal “substance,” and in sentencing him contrary to a proper interpretation of § 7508. Appellant argues that the mandatory minimum sentence under § 7508 can only apply in this case if the substance seized is pure cocaine of the proscribed weight. Appellant argues that the cocaine or its derivatives cannot be “mixed” with another product in determining the total weight of cocaine or its derivatives. His argument is based on an alleged ambiguity present in the language of § 7508(a) which is as follows:

(3) A person who is convicted of violating section 13(a)(14) or (30) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to á mandatory minimum term of imprisonment and a fine as set forth ill this subsection:
(i) upon the first conviction when the amount of the substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity____

18 Pa. C.S.A. § 7508(a)(3)(i).

Appellant argues that the word “substance” in subsection (a)(3)(i) refers to pure cocaine and does not have any reference to a “mixture” of cocaine or its derivatives with any other product. He argues further that a criminal statute must be strictly construed and any ambiguity must be interpreted in his favor. The claim is based on that alleged ambiguity in the language of (a)(3)(i) so that it must be construed strictly and that only pure cocaine, or its derivative, of the proscribed weight can be considered in the sentencing process of that subsection. It is oúr opinion that there is no ambiguity in the language of § 7508 and its subsections. But even if ambiguity existed, the Supreme Court of Pennsylvania has determined that strict construction of the crimes code provisions is to be applied in conjunction with the requirement of 18 Pa. C.S.A. § 105 that such provisions must be construed according to the “fair import” of their terms. In Commonwealth v. Lurie, 524 Pa. 56, 63, 569 A.2d 329, 332 (1990), the court held, “it is clear from the explicit language of Section 105 that the ‘fair import’ principle of construction specifically applies to the provisions of the Crimes Code (Title 18).” See Official Comment to 18 Pa. C.S.A. 105. See also Commonwealth v. Rhodes, 510 Pa. 537, 545-46, 510 A.2d 1217 (1986) (explicating the purpose and interpretation of § 105); Commonwealth v. Frisbie, 506 Pa. 461, 466, 485 A.2d 1098, 1100 (1984) (same); Commonwealth v. Henley, 504 Pa. 408, 415, 474 A.2d 1115, 118-19 (1984) (same). There is nothing in this case as we shall point out to rebut the “fair import” of the language in (a)(3) and (a)(3)(i) of § 7508 supra, which is to punish drug traffickers who, in this case, distribute cocaine or its derivative mixed with another product in order to avoid detection of their obvious crime.

As to ambiguity, in a study of the two subsections of § 7508 we find clear, transitional language which ties together the “substance” referred to in subsection (a)(3) of the section with “substance” referred to in subsection (a)(3)(i) of the section. The language in subsection (a)(3) of § 7508 holds that anyone convicted of trafficking in cocaine, its derivatives or any mixture containing cocaine or its derivatives with other products shall “be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection____” The very next subsection is (a)(3)(i), which is the only penalty subsection to § 7508, and can only refer to the imposition of sentence for anyone convicted of trafficking in the substance referred to in subsection (a)(3). To interpret § 7508 in accordance with appellant’s view would allow all traffickers of cocaine to avoid the harsher penalties set forth in § 7508 by merely distributing cocaine or its derivatives with an amount of mixture of another product that would bring the weight of cocaine below the proscribed weight. The legislature in its study of this social problem was too aware of the realities in the subterfuge of drug dealers to intend the “fair import” of this legislation to be interpreted in appellant’s favor.

The other question in this case is whether extrapolation of the total weight of contraband from samplings is proper. At trial the Commonwealth presented a chemist’s analysis of the substance seized from appellant. The chemist analyzed two randomly selected packets of the twenty-two packets submitted and found that each of the two packets contained cocaine, or its derivatives with a mixture of another product and calculated the amount of cocaine in the twenty-two packets to be 2.21 grams. Appellant contends again that only the weight of pure cocaine may be considered by the court to meet the proscribed weight. This argument would require that each molecule of substance seized, whether in the form of grain, leaf or powder be analyzed to determine the presence of cocaine or its derivatives. We addressed this issue in Commonwealth v. Lisboy, 392 Pa.Super. 411, 573 A.2d 222 (1990) and in Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). We found in essence that when calculating the proper weight of a controlled substance for purposes of determining whether the mandatory minimum sentence was required to be imposed, the court must consider the combined weight of both the controlled substance and any product contained in the mixture.

We said in Commonwealth v. Minott, supra, 395 Pa.Superior Ct. at 559, 577 A.2d at 931, that “[t]he practice of testing representative samples of larger quantities of drugs and extrapolating therefrom the total narcotics content of an illegal substance is well accepted.” This method of detecting the quantity of substances in illegal drug trafficking was approved in Commonwealth v. Gorodetsky, 178 Pa.Super. 467, 115 A.2d 760 (1955) and allows for the total weight of “substance” to include the proscribed narcotics together with a mixture of any other product. In Gorodetsky, a chemist testified that his analysis of representative samples of eight tablets sold by defendant to a police informant permitted him to conclude that each of the tablets contained more than one-fourth (V4) gram of morphine. This evidence was held sufficient to sustain the defendant’s conviction of possessing or delivering more than the statutorily prohibited amount of the illegal substance. Other jurisdictions have also permitted the use of extrapolation in determining the quantity of illegal drugs. See, e.g., Mullins v. State, 277 Ark. 93, 639 S.W.2d 514 (1982) (trial judge could find from representative sampling and testing of ten of one hundred tablets seized and found to contain methaqualone that the other ninety tablets were identical); Pama v. State, 552 So.2d 309 (Fla.Dist.Ct.App.1989) (evidence that experienced law enforcement officer examined twenty bales of a seized substance and identified those bales as containing marijuana was adequate proof that at least twenty of the bales seized contained marijuana); Asmer v. State, 416 So.2d 485 (Fla.Dist.Ct.App.1982) (one thousand tablets weighing 795.7 grams were seized; one tablet was tested and found to contain methaqualone; appellant’s conviction of trafficking in more than two hundred grams of methaqualone upheld); Commonwealth v. Shea, 28 Mass.App.Ct. 28, 545 N.E.2d 1185 (1989) (no basis for reversal of conviction for cocaine trafficking where only five infrared and four ultraviolet tests were made on a total of nine bags seized); State v. Anderson, 76 N.C.App. 434, 333 S.E.2d 762 (1985) (evidence sufficient to support finding that defendant possessed more than four grams of heroin where fourteen packets were seized and random samples with a total weight of one gram were taken from three packets); State v. Mattox, 13 Ohio App.3d 52, 468 N.E.2d 353 (1983) (evidence that random sample of five tablets taken from ten tablets that defendant had sold police officer contained LSD was substantial evidence from which court could properly conclude beyond a reasonable doubt that all ten tablets contained LSD); State v. Selph, 625 S.W.2d 285 (Tenn.Crim. App.1981) (evidence sufficient to convict appellant of selling more than two hundred grams of methaqualone where five tablets of five thousand tablets seized were tested and found to contain methaqualone weighing a total of 1500 milligrams; total weight of tablets seized was 3,824 grams).

The extrapolation of drug quantities was approved in the context of the sentencing phase of a criminal process in United States v. Fuentes, 877 F.2d 895 (11th Cir.1989), cert. denied, — U.S. -, -, 110 S.Ct. 347 & 516, 107 L.Ed.2d 335 & 517 (1989). In that case, coast guardsmen observed brown objects being thrown from a vessel which they were pursuing. Approximately two hundred fifty to four hundred such objects were observed, and were characterized at trial as identically packaged bales. One of these bales, weighing 27.65 grams and identified as a mixture containing marijuana, was entered into evidence. The court concluded that the evidence supported a finding that appellant possessed a mixture containing marijuana well in excess of the statutory figure of one thousand kilograms. See The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 960 (1988) (setting forth updated mandatory minimum sentencing provisions of the Act).

Judgment of sentence is affirmed.

      . 35 Pa.S. § 780-113(a)(30).

      . Entitled Drug Trafficking Sentencing and Penalties; P.L. 262, No. 31, § 13, Passed Mar. 25, 1988, effective Jul. 1, 1988. Appellant was sentenced under Section (a)(3)(i) of the statute.

      . Principles of construction

        The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved. The discretionary powers conferred by this title shall be exercised in accordance with the criteria stated in this title and, in so far as such criteria are not decisive, to further the general purposes stated in this title.
      18 Pa. C.S.A. § 105.

      . Although an application for allowance of appeal has been filed in Commonwealth v. Lisboy, 480 E.D. allocatur Dkt.1990, we are satisfied at this point with our present holding.


author: HUDOCK, Judge: CAVANAUGH, Judge,

text:
    580 A.2d 784
    COMMONWEALTH of Pennsylvania, Appellant, v. Edward R. SANFORD, Appellee. COMMONWEALTH of Pennsylvania, Appellee, v. Edward R. SANFORD, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1990.
    Filed Sept. 10, 1990.
    Petition for Allowance of Appeal Denied Jan. 23, 1991.

      Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellant in No. 1850, and for Com., appellee in No. 1900.
    Shelley Stark, Public Defender, Pittsburgh, for appellant in No. 1900, and for appellee in No. 1850.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

The defendant, Edward R. Sanford, was charged with and, at the conclusion of a non-jury trial, convicted of attempted rape, indecent assault, and corruption of minors. In response to the defendant’s motion, the trial court granted a new trial. The defendant’s motion in arrest of judgment was denied. The Commonwealth appeals the order granting defendant a new trial, and the defendant cross-appeals from that portion of the order denying his motion in arrest of judgment. For the reasons set forth below, we affirm the order.

At the time of the incident giving rise to the criminal charges against the defendant, the victim was a girl of three years of age. After the victim arrived home from her neighborhood babysitter’s residence, her mother noticed that the child was following her from room to room. While the mother was using the bathroom, the victim entered and stated “Pap Pap kissed me, ... on my face with his tongue.” The victim knew the appellant, her babysitter’s husband, as “Pap Pap.” Upon questioning by her mother, the child also indicated the appellant had attempted to sexually assault her. The mother examined the child and discovered the child’s vaginal area was inflamed, as well as the presence of an oily substance. The child was taken by her parents to Children’s Hospital in Pittsburgh where she was examined by Dr. Scott Jaeger. Prior to conducting his physical examination of the child, Dr. Jaeger initiated a conversation with her. During the conversation, the child repeated her version of the incident concerning “Pap Pap” and, when asked, indicated that she had experienced pain in her vaginal area during the assault and that the defendant threatened her. At trial, the statements made by the child to both her mother and Dr. Jaeger were admitted over objection.

In its post-trial order, the trial court found the circumstances surrounding the child’s incriminating statements to her mother did not fall within the “excited utterance” exception to the hearsay rule and that the victim’s statements to Dr. Jaeger lacked sufficient indicia of reliability for the application of any hearsay rule exception recognized in Pennsylvania. The court concluded the error in allowing such testimony was prejudicial.

COMMONWEALTH’S APPEAL

APPEAL AT NO. 01850 PITTSBURGH 1988

The trial court apparently reasoned that there was no evidence that the victim was in shock or under the stress of excitement when she made the statements to her mother, therefore the admission of the mother’s testimony was reversible error. The defendant echos this analysis. The court reached this conclusion because the mother’s testimony suggested the child’s demeanor was unremarkable. The trial court recalled that the mother testified that the child appeared to be her “usual self” and even appeared to be “smiling.”

The Commonwealth argues the out-of-court statements made by the non-testifying three-year-old victim to her mother were unsolicited and, under the circumstances, contemporaneous; they were marked by a spontaneity born of excitement produced by an event of startling magnitude. Further, the Commonwealth asserts there is nothing in the record to suggest the statements were the product of reflection, premeditation or design, and there is substantial physical evidence corroborating the disputed statements. The Commonwealth concludes that there was sufficient indicia of reliability associated with the child’s declarations to her mother so as to permit their admission under the excited utterance exception to the hearsay rule.

Preliminarily, it is necessary to comment on the Commonwealth’s suggestion that the corroborating physical evidence discovered by the mother during her physical examination of the child can be viewed as further indicia of reliability of the truthfulness of the child’s statements. In a recent decision, the United States Supreme Court commented that

“the use of corroborating evidence to support a hearsay statement’s ‘particularized guarantees of trustworthiness’ would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility.”

Idaho v. Wright, — U.S. —, - — , 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638 (1990). The Wright court added that “the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless, rather than that any basis exists for presuming the declarant to be trustworthy.” Id. at - — , 110 S.Ct. at 3150-51. (Footnote omitted.) (Citations omitted.)

The question of whether hearsay statements possessed sufficient indicia of reliability so as to withstand scrutiny under the Confrontation Clause of the Sixth Amendment, thereby rendering such statements admissible at trial, was discussed at length by the Wright court. Recalling its earlier decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the court found that “admission [of a hearsay statement] under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded long standing judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” Wright at -, 110 S.Ct. at 3147. (Citations omitted.) “[I]f the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial.” Id. at-, 110 S.Ct. at 3149. “[Statements admitted under a ‘firmly rooted’ hearsay exception are so trustworthy that adversarial testing would add little to their reliability.” Id. The Wright court cited the excited utterance exception to the hearsay rule as an example of a firmly rooted exception where “the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous.” Id. (Citations omitted.) Thus, if it is determined that a statement qualifies as an excited utterance, it is not necessary to demonstrate any further indicia of reliability.

The excited utterance exception to the hearsay rule was explained in Commonwealth v. Pronkoskie, 477 Pa. 132, 137, 383 A.2d 858, 860 (1978) as follows:

... a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.

See also, Wright, supra (the basis for the excited utterance exception is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation.)

In considering the facts of particular cases where this issue has been raised, the courts have considered: 1) whether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so. Commonwealth v. Blackwell, 343 Pa.Super. 201, 211, 494 A.2d 426, 431 (1985). (Citations omitted) These considerations provide the guarantees of trustworthiness which permit the admission of a hearsay statement under the excited utterance exception. “It is important to note that none of these factors, except the requirement that the declarant have witnessed the startling event, is in itself dispositive. Rather, the factors are to be considered in all the surrounding circumstances to determine whether a statement is an excited utterance.” Id. See also, Wright, supra (particularized guarantees of trustworthiness must be shown from the totality of the circumstances.)

We have carefully examined the record of this case in light of the above enumerated criteria and conclude that the trial court erred in determining that the mother’s testimony concerning the statements made to her by the child were inadmissible hearsay. With regard to whether the child witnessed or participated in the startling event, the defendant asserts that simply because the child claims to have perceived the event does not establish that she, in fact, did perceive or participate in the event. We disagree. Although the child did not testify, and there were no other witnesses to the misconduct, the testimony of both the child’s mother and the examining physician, relating to their respective observations when they examined the girl, circumstantially established that the event itself did occur. Clearly then, the child had perceived or participated in “some unexpected or shocking occurrence.” Commonwealth v. Pronkoskie, supra. This is not a situation where the Commonwealth is attempting to use the excited utterance itself to prove the existence of an exciting event. See e.g., Commonwealth v. Barnes, 310 Pa.Super. 480, 456 A.2d 1037 (1983).

The fact that the child’s demeanor was unremarkable, even if true, is not (necessarily) singularly dispositive of our inquiry. We hasten to note that the trial court’s conclusion concerning the child’s demeanor is contrary to a fair reading of the record. At trial, it was clearly established that the child engaged in what can be considered ordinary casual conversation with her mother upon returning home, especially since she was not expecting her mother to be there, and even began watching television. It is equally true, however, that the child followed her mother from room to room and even entered the bathroom while her mother was using it. It is also true that the child offered her statement of what had occurred to her without solicitation. Lastly, the child’s mother testified that when the declaration was made, the child “had a different look on her face with a smile.... [W]hen she was telling me, it was like she didn’t know whether it was right or wrong.” (Trial Testimony at 53)

Earlier cases involving statements found to be inadmissible as excited utterances contained discussions of the fact that the declarant appeared to be calm and unemotional at the time the statement was uttered. See, Commonwealth v. Pronkoskie, supra; Commonwealth v. Summers, 269 Pa.Super. 437, 410 A.2d 336 (1979). But cf., Common wealth v. Nowalk, 160 Pa.Super. 88, 50 A.2d 115 (1946) (where Court noted that the child-declarant was visibly nervous and excited.) However, there is no requirement that the declarant be emotionally overpowered, but rather must be speaking under the stress of excitement. Packel & Poulin, Pennsylvania Evidence, § 803.2, p. 567. We find that the evidence in the case at bar sufficiently demonstrated that the child was speaking under the stress of excitement when she announced to her mother the devastating experience to which she had been unwillingly subjected.

The defendant’s reliance on this Court’s decision in Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986) as prohibiting admission of the child’s statements to her mother is misplaced. In Haber, our Court found error in the trial court admitting the testimony of the mothers of the two victims as to statements concerning the sexual assaults committed by the defendant, which were made to them by their children. In concluding that the mothers’ testimony did not come within any exception to the hearsay rule recognized in Pennsylvania, the Court focused the absence of any evidence demonstrating that the children’s statements were made under the stress of excitement caused by an exciting event or condition. The Court noted that the first relevant assertion was a comment made by one of the children during a conversation between his older brother and mother. The other assertions were made during interviews subsequently conducted by the mothers with their children. Id., 351 Pa.Superior Ct. at 82, 505 A.2d at 275. Because the record was silent as to the length of delay between the alleged criminal conduct and the children’s assertions to their mothers, it was impossible to determine whether the statements were made “under the stress of excitement caused by an exciting event or condition, as is required,” id., or whether the statements were the product of reflection or fabrication. The facts of the instant case warrant a different result.

We also do not find the fact that, except for her first statement that “Pap Pap kissed me ... ”, all other statements made by the child were done so in response to inquiries posed by the child’s mother reason enough to exclude the testimony relating to those statements. The weight of authority in this Commonwealth is that responses to questions are not, per se, excluded from consideration as excited utterances. This is true even though one might conclude that such a response requires the kind of reflection which would preclude it from being considered an excited utterance. See, Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975); Commonwealth v. Ross, 345 Pa.Super. 571, 498 A.2d 972 (1985); Commonwealth v. Von Smith, 303 Pa.Super. 534, 450 A.2d 55 (1982); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982).

However, in Commonwealth v. Kasko, 322 Pa.Super. 62, 469 A.2d 181 (1983), this Court found children’s statements in response to questions posed by their parents inadmissible because, among other reasons, the questioning itself demanded reflection. The children were observed by one of their mothers in what was thought to be sexual activity. Ultimately, the children inculpated the appellant therein as the individual responsible for teaching them that type of conduct. In vacating the judgment of sentence, the court focused on the fact that the crucial statements from the children came, not only after fifteen minutes of questioning by one parent had failed to produce the desired response, but after two undoubtedly upset parents together interrogated the children. The Court noted that while the fifteen minutes itself afforded time for reflection, the parental interrogation demanded that reflection.

The evidence presented in the instant matter regarding this issue simply does not reveal the type of questioning which called for reflection by the child-declarant. The record evinces that the mother’s questions were themselves asked in response to the child’s statement. The child’s statement was punctuated by occasional questions such as “what?,” “kissed you where?,” “where?,” “what else happened?,” and “he did what?.” This exchange does not appear to have been so unhurried or reflective as to render the statement inadmissible.

The defendant also argues that the statement lacked the contemporaneous nature required to be considered an excited utterance. The defendant maintains the only time the acts could have occurred was in the morning since that was the only time he was alone with the child. Yet, the child did not reveal the incident until after she arrived home. The defendant concludes that the lengthy opportunity for the child to speak, throughout the day, to her sitter (his wife), to her sister during the short walk home, and immediately to her mother upon arriving home, coupled with the time lapse between the alleged incident and her making the statements, render the statements stale. However, as we said in Commonwealth v. Nowalk, 160 Pa.Super. 88, 91, 50 A.2d 115, 116 (1946), “[n]o fixed time or distance from the event can be established____ Each case must depend on its own circumstances.” Additionally, our Supreme Court commented that a relaxation of the rule, that the statement be sufficiently contemporaneous with the event where the child-declarant is the victim of a sexual assault, “recognizes both the likelihood of a young child’s inability to comprehend the purpose of the assault and the possibility of the child’s hesitancy to discuss the matter for fear of incurring punishment.” Pronkoskie at 142 n. 9, 383 A.2d at 863 n. 9, citing Annotation, 83 A.L.R.2d 1361.

Examining all attendant circumstances, we believe it would be unreasonable to require the child to speak to her sitter, who is the defendant’s wife. Additionally, although the assault upon her occurred during the morning hours, the child remained in the defendant’s home (where the assault took place) for the entire day until her older sister arrived to escort her home. During this period, the child was unaware that her mother had not gone to work that day due to illness. What is reasonable, however, is to expect the child to be confused and uncertain in the aftermath of her experience. This confusion and uncertainty is demonstrated by the mother’s testimony regarding the child’s inconsistent demeanor, conduct and facial expressions when making the statement. Compare, Commonwealth v. Blackwell, supra (the combination of factors presented in Commonwealth v. Green, 487 Pa. 322, 409 A.2d 371 (1979) and Commonwealth v. Little, 469 Pa. 83, 364 A.2d 915 (1976) compelled the conclusion that the statements at issue in each case were not spontaneous.)

We conclude, therefore, that the child’s statement to her mother, concerning the assault upon her by the defendant, satisfied the criteria of the excited utterance exception to the hearsay rule and that the court erred in granting the defendant’s motion for a new trial on this basis.

Regarding the testimony of the treating physician, as to the child’s statements, the Commonwealth argues that the statements were properly admissible at trial since they were made for purposes of medical treatment, an exception to the hearsay rule recognized in Pennsylvania. Such an exception was recognized by the United States Supreme Court in Wright as being a well-rooted exception which was based on the belief that persons making such statements are highly unlikely to lie. Thus, if the statements qualify under this exception, no further guarantees of trustworthiness need be shown. Wright at-, 110 S.Ct. at 3147.

This exception was first recognized in this Commonwealth by the Pennsylvania Supreme Court in Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 291 A.2d 772 (1972), a worker’s compensation case. The Cody court expanded upon the then-existing law “that statements to a doctor were admissible insofar as they were necessary and proper for diagnosis and treatment and referred to symptoms, feelings and conditions”, id., 447 Pa. at 566, 291 A.2d at 776, to include statements to the physician on the cause of the accident as well. Id. The Cody court considered its resolu-

tion of the issue, that there was “pressing necessity” to admit the physician’s testimony recounting the victim’s explanation of the circumstances of his injuries, id., 447 Pa. at 567, 291 A.2d at 777, “consonant with the demands of justice.” Id. The Court, quoting McCormick, held that “ ‘statements as to external cause when relevant to treatment and made to a doctor employed for that purpose are [i.e., should be admitted as] evidence of the fact stated ... particularly in actions for death where there were no eyewitnesses other than the victim____’ Id.” Blackwell, at 215, 494 A.2d at 488. The Cody court reasoned that where “there are no circumstances casting suspicion on the genuineness of the utterances, statements as to cause clearly meet the trustworthiness test.” Cody at 566, 291 A.2d at 776.

The defendant argues, as the trial court found, that there is no evidence demonstrating the child’s understanding of the connection between truthful responses to the doctor’s inquiries and receiving proper medical treatment. “In fact, there was no evidence that [the child] even realized that she was injured or that she had a medical problem.” (Brief for Defendant at 24.) We agree that the very premise upon which the exception is based is that the “declarant’s purpose in making [the assertion] must have been to aid medical diagnosis or treatment.” Binder, Hearsay Handbook, 2d ed. § 6.01, at 125. “Conversely, if [the] declarant’s assertion was not made for the purpose of medical diagnosis or treatment, it does not qualify for this exception to the hearsay rule, even though it does, in fact, aid a physician in diagnosing or treating the patient’s ills.” Id. at 126. (Citation omitted) However, in all cases where the declarant is unavailable, usually because of death, we believe that the information communicated was thought by the declarant to be of some help to the physician in treatment. See Blackwell at 223, 494 A.2d at 437 (“the statements were made [by the patient who later died] so that his condition could be diagnosed and treated; and while they described the cause of his condition — his abduction and robbery — this description was immediately relevant to his diagnosis and treatment, which is to say, in giving it, he must have thought of himself as giving information that would enable the hospital to help him.”) See also, Wright at -, 110 S.Ct. at 3149 (“Likewise, the ... ‘medical treatment’ [exception] to the hearsay rule [is] based on the belief that persons making such statements are highly unlikely to lie.”) Thus, the more precise question which we must answer is whether this same belief is present when the assertions at issue are from the mouth of a three-year-old child. The Commonwealth submits that it does, and we agree.

In support of its position, the Commonwealth cites cases from other jurisdictions where such a position was adopted. In State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987), a five-year-old girl was sexually assaulted. The child was ultimately ruled unavailable to testify due to psychological trauma induced by the sexual abuse. The Robinson court expressed its concern with the vulnerability of such victims who “may not always grasp the relation between their statements and receiving effective medical treatment.” Id. at 809. The Robinson court acknowledged that the child-victim’s motive for making the disputed statements was not apparent, but nevertheless found them admissible because they were taken for the purposes of diagnosis and treatment, and there was nothing in the record to suggest an ulterior motive. Id.

Likewise, in the case at bar, the record does not indicate the child’s motive in making the statements, other than they were made in response to Dr. Jaeger’s questions. In Weinstein’s treatise, where it is emphasized that, regardless of the declarant’s motive, doctors customarily and reasonably rely on such statements, “ ‘a fact reliable enough to serve as a basis for diagnosis is also reliable enough to escape hearsay proscription Goldade v. State, 674 P.2d 721, 726 (Wyo.1983), quoting 4 WEINSTEIN’S EVIDENCE § 803(4)[01] p. 803-129.' While the record may not indicate the child’s motive for making the assertions, the record does indicate that the child had experienced a traumatic event, was physically examined by her mother, and taken to the hospital for further examination. Additionally, the statements were made to a physician while in the emergency room. We find these factors sufficient to believe that the child understood the need to be truthful in her responses to the inquiring physician.

The defendant also argues that the substance of the statements being considered are beyond the scope of the exception recognized in Cody because statements concerning identity and fault are outside the exception since they “are simply not pertinent to the medical treatment.” (Brief for Defendant at 26.) The Commonwealth argues the statements identifying the defendant as the perpetrator of the assault were highly relevant to treatment, implicating, as they did, concerns regarding the care of the child as well as reasonable efforts with respect to the identity and control of communicable, sexually transmitted diseases. Based on the record before us, we disagree.

It is true that Dr. Jaeger testified, at the hearing on the defendant’s habeas corpus petition, that the identity of the assailant was a relevant inquiry because of his concern for not only the likelihood of sexually transmitted diseases, but also for the psychological well-being and safety of the child. This testimony, however, was not incorporated as part of the trial record. Thus, although such testimony may have sustained the Commonwealth’s position, the absence of it renders that position untenable. See, State v. Nelson, 138 Wis.2d 418, 406 N.W.2d 385 (1987); State v. Vosika, 83 Or.App. 298, 731 P.2d 449 (1987); Goldade, supra.

Thus, the physician’s testimony regarding the child’s statements as to the events which gave rise to her visit to the emergency room was properly admitted at trial. However, that portion of the physician’s testimony concerning the child’s statements wherein she identified the defendant as her assailant should not have been admitted. Although the trial was conducted without a jury, we are not prepared to say that the admission of the doctor’s testimony relating to the child’s identification of the defendant was harmless error. “For an error to be harmless because of overwhelming evidence, ‘the untainted evidence relied upon must be uncontradicted.’ ” Commonwealth v. Whiting, 358 Pa.Super. 465, 477, 517 A.2d 1327, 1333 (1986), appeal den. 515 Pa. 606, 529 A.2d 1080 (1987). Accordingly, the defendant is entitled to a new trial.

DEFENDANT’S CROSS-APPEAL

APPEAL AT NO. 01900 PITTSBURGH 1988

[16] The first issue presented by the Defendant in his cross-appeal is a challenge to the sufficiency of the evidence. The standard of review for such challenges is well-established:

The sufficiency of the evidence must be evaluated upon the entire trial record. All the evidence must be read in the light most favorable to the Commonwealth [as the verdict winner below] and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove. Also, in passing upon such a motion, all evidence actually received must be considered whether the trial rulings thereon were right or wrong.

Commonwealth v. Strunge, 287 Pa.Super. 212, 216, 429 A.2d 1176, 1178 (1981). (Citations omitted) When viewed in this light, we conclude that the court below did not err in denying the defendant’s motion in arrest of judgment.

The defendant also argues that he was deprived of his constitutional right to cross-examine and confront his accuser since his conviction is based solely on hearsay evidence. This argument is meritless. It is well-settled “that the [Confrontation] Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause.” Wright at-, 110 S.Ct. at 3145. (citation omitted.) “The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Id. at-, 110 S.Ct. at 3146. (citations omitted.) Because we have determined that the child’s statements, with the exception of the statements to Dr. Jaeger identifying the defendant as the perpetrator of the assault against her, were properly admitted under firmly rooted exceptions to the hearsay rule, the Confrontation Clause was not violated. Wright, supra. Thus, we conclude that the trial court did not err in denying the defendant’s motion in arrest of judgment.

The order granting a new trial is affirmed. The case is remanded for further proceedings. Jurisdiction is relinquished.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting.

I respectfully dissent. I recognize that this case is another in a series of cases which demonstrate the tension between the desire to fairly and fully prosecute in cases involving child abuse on the one hand and allegience to long settled evidentiary principles on the other. However, I disagree with the reasoning of the majority with respect to both hearsay issues involved in this case. For reasons expressed in Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986), I would find that the child’s statements in this case, as testified to by her mother, are beyond the standards which must be met in order to admit a statement as excited utterance. Specifically, I believe that the time lapse and the interrogational nature of the mother’s conversation with the child are facts which remove this case from the ambit of the . excited utterance exception to the hearsay rule.

Secondly, I believe that in order to admit any statement to the physician who examined the minor victim, it is necessary to demonstrate that the declarant’s purpose in making the statement must have been an aid to . medical diagnosis or treatment. In this matter there is no evidence that such was the case and, in fact, the examining physician testified that he specifically elicited the identification information from the child by questioning in order to fulfill what he considered to be his medico-legal responsibilities. Moreoyer, there appears to have been no attempt to place evidence in the record in order to fulfill the obligation that the declarant be “unavailable” before a determination that alleged hearsay evidence may be received.

I join in the majority’s order that a new trial be granted since I do not believe that either the physician’s or the mother’s statement should have been admitted in evidence. It would seem to me, however, that upon retrial the Commonwealth will have available to it the provisions of recently enacted statute, 42 Pa.C.S.A. 5985.1. Since this is an evidentiary rule, I see no reason why it would not be available to the Commonwealth on the retrial of this case and if the provisions of the rule are satisfied, might make the child’s statements in this case admissible in evidence.

      . The parties make reference to the question of whether the defendant's misconduct, if it occurred, would amount to such an unexpected and shocking occurrence which would engender the emotional response permitted by the exception. Without hesitation, we believe . that such misconduct, when established, is unquestionably of the kind leading to overpowering emotions so as to satisfy that particular requirement.

      . As a result of the Wright, supra, decision, it is unnecessary to address the defendant’s assertion that Haber prevents the admission of hearsay statements where “the physical details ... lend an aura of reliability and trustworthiness to the out-of-court declarations^]” (Defendant’s brief at 21.)

      . The Court also found that the spontaneous utterance did not relate to the exciting event — being caught in the act of doing something wrong by one of the parents. The Court concluded that the act in which the children were caught was not the litigated fact to which their statements related. Cf. Commonwealth v. Haber, supra.

      . The child arrived home around 6:05 p.m. and waited "nearly 30 minutes” before making the statements to her mother.

      . Had such testimony been presented at trial, whether directly or by way of incorporation, our conclusion as to the child’s statements identifying the defendant as her assailant may well have been different.

      ." See, however, our comments in Commonwealth v. Haber, 351 Pa.Super. at 82-83, 505 A.2d at 275.


author: POPOVICH, Judge:

text:
    580 A.2d 794
    Timothy TOPPER, a Minor, by Lori Anne TOPPER, Appellee, v. Harrison KULP and Betty Kulp, h/w, Lori Anne Topper, George Hicks, Jr., a Minor, Richard C. Goodwin and Goodwin Homes, Inc. Appeal of Richard C. GOODWIN and Goodwin Homes, Inc.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed Sept. 18, 1990.

      Deborah L. Doyle, Allentown, for appellants.
    David M. Jakobi, Paoli, for Topper, appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Northampton County denying a motion to file amended pleadings by the appellants/defendants, Richard C. Goodwin and Goodwin Homes, Inc. We reverse.

The record, as herein relevant, reveals that on or about July 14, 1986, the then nine-year-old plaintiff (Timothy Topper) was riding a motorized minibike in a vacant lot owned by the appellants and situated across the street from the residence of his cousins (Harrison and Betty Kulp and their son, Chris). While the plaintiff (in the company of Chris) rode the minibike, he collided with a motorcycle driven by George Hicks and owned by Chris Kulp. The accident resulted in Timothy Topper sustaining facial and head injuries, and this prompted the filing of a four-count complaint against the Kulps, Hicks and the appellants seeking damages in excess of ten thousand dollars.

As to count IV of the complaint, the Toppers alleged that the appellants, as the landowners, were liable on theories of recovery premised upon “negligence” and “willful and wanton misconduct” leading to the injuries sustained by Timothy Topper. In response, Harrison and Betty Kulp joined Timothy Topper’s mother, Lori Anne Topper, as an additional defendant, and filed an answer and new matter denying any liability for Timothy Topper’s injuries. Likewise, Chris Kulp, represented by separate counsel, filed an answer with new matter denying accountability for the injuries incurred by Timothy Topper, and joining Harrison and Betty Kulp and the appellants as additional defendants.

Additional pleadings appear of record which need not be recounted to cause the matter to be resolved, albeit we do note that a praecipe in compliance with Pa.R.Civ.P. 237.1 was filed by the plaintiffs against George Hicks, and by stipulation of all parties Chris Kulp was dropped as a party to the suit. Further, in the appellants’ answer to the plaintiffs’ complaint, as is herein relevant, they denied failing to exercise reasonable care or acting willfully, maliciously and recklessly in regard to the property in question. See Paragraphs 23 & 24.

By order of court dated August 21, 1989, the pleadings were closed and each party was directed to complete discovery, including interrogatories and depositions, within three months from the date of the order. Thereafter, a rule was issued on November 21, 1989, and made returnable December 6, 1989, upon the plaintiffs to show cause, if any there be, why the appellants’ petition for leave to amend the pleadings to add the Recreation Use of Land and Water Act (RULWA), 68 P.S. § 477-1 et seq., to their new matter should not be granted.

The appellants asserted that, based on the depositions taken during discovery, they were immune from liability under the RULWA as owners of land on which the plaintiff — Timothy Topper “entered free of charge for recreational purposes.” Paragraph 4. And, because discovery was continuing and the matter was not set for trial in the foreseeable future, they would be prejudiced in the defense of their case if they were not allowed to amend their new matter. In a memorandum attached to the petition, the appellants averred that Pa.R.Civ.P. 1033 afforded them the chance to seek amendment of their pleading (“new matter”) “any time by leave of court.” Because the discovery process was still “ongoing”, this negated the presence of prejudice to the plaintiffs and, as a result, warranted the allowance by the court of the appellants’ request to amend to offer the bar and limiting effect of the RULWA. See Proposed Amendment to New Matter by the appellants at paragraph 10.

In response, the plaintiffs filed an answer claiming that the desired amendment was being sought to new matter “after the last scheduled deposition was completed.” They also “denied that none of the parties would be prejudiced by permitting Defendants to amend their New Matter.” Lastly, the plaintiffs charged that additional costs, further delay and the absence of any showing by the appellants that “their purported defense would be successful” justified the denial of the appellants’ petition to amend. In a memorandum attached to their response, the plaintiffs recounted how they had charged the appellants with the commission of negligence and/or willful, wanton and malicious misconduct resulting in the injuries to Timothy Topper. Next, the plaintiffs contended that the appellants’ petition to amend had been filed “less than one week before the scheduled termination of discovery on 11/21/89.” As a consequence, even though Rule 1033 permitted amendments to pleadings at any time with leave of court, they argued, where prejudice to the opposing party would result, the relief requested should be denied.

“Prejudice”, as defined by the plaintiffs and as exists in case law, stems from the “delay” in raising the amendment so as to affect the “substantive position of the adverse party.” See Plaintiffs’ Memorandum of Law at page 3, quoting Mann v. Upper Darby School District, et al., 99 Pa.Cmwlth. 276, 513 A.2d 528 (1986). Such prejudice is claimed by the plaintiffs, as recited in their Memorandum of Law at pages 4-5, to consist of added time, cash and effort required to be expended by them in having to conduct discovery a “second time” to inquire into the appellants’ claim of a new affirmative defense — RULWA. Those alleged “new” facts are refuted by the plaintiffs on the ground that such facts were clearly set forth in the plaintiffs’ complaint at paragraphs 9, 10 and 11 permitting the assertion of such a defense earlier in the pleading process. Thus, the plaintiffs argue that “[r]aising this [RULWA] defense ... after the discovery is complete ... clearly prejudices the Plaintiff because the effort to amend has been late.’’ Id. at page 5 (Emphasis in original).

In an order and statement of reasons issued by the court below on December 11, 1989, the appellants’ petition to amend was denied. This appeal followed.

Preceding our inquiry into the propriety of the lower court’s denial order, we need to decide (both parties having taken opposite views on the question) whether the order entered is interlocutory.

In this Commonwealth, it is quite evident that the jurisdiction of Superior Court to hear appeals is restricted to final orders; to-wit:

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742 (1981).

Generally, an order is not a “final order” unless it serves to put the litigant “out of court” either by ending the litigation or disposing of the case entirely. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). Further, an order does not put a party “out of court” unless it precludes proof of facts at trial, which if determined in favor of the pleader, would provide him with a complete defense to the action. Ventura v. Skylark Motel, 431 Pa. 459, 246 A.2d 353, 355 (1968).

In Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966), the trial court issued an order refusing the appellant’s request to amend its answer to assert a new affirmative defense. On review, the Supreme Court ruled that the pre-trial order was not interlocutory in nature and entertained the appeal. In doing so, the Court explained:

The plaintiff filed a motion to quash the appeal on the ground that the order appealed from is interlocutory. On this question, our language in the recent decision of Adcox v. Pennsylvania Mfgrs. Ass’n Cas. Ins. Co., 419 Pa. 170, 213 A.2d 366 (1965) is apposite. See also, Pellegrine v. Home Ins. Co., 200 Pa.Super. 48, 186 A.2d 662 (1962). The order is not interlocutory, and the motion to quash will be overruled. The new defense proposed is affirmative in nature and must be pleaded, otherwise it is waived. See, Pa.R.Civ.P. 1030, 1032, and Lang v. Recht, 171 Pa.Super. 605, 91 A.2d 313 (1952). The order involved effectively precludes proof at trial of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order appealed from puts the defendant “out of court”. It is, therefore, an appealable order.

421 Pa. at 23-24, 218 A.2d at 351. Accord Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987) (en banc), allocatur denied, 518 Pa. 643, 542 A.2d 1371 (1988).

In the instant case, under the Posternack rationale, we need to assess the possibility of a complete defense being lost to the appellants with the lower court’s order denying the petition to amend to assert the RULWA as a defense. The lower court’s and the plaintiffs’ positions to the contrary notwithstanding, we look to the recent ruling of Friedman v. Grand Central Sanitation, Inc., 524 Pa. 270, 571 A.2d 373 (1990), for direction.

In Friedman, stated succinctly, the high Court ruled that the pristine language of the RULWA “immunize[s] a landowner whose land is used for recreational purposes by the public without charge, whether or not he has invited or permitted the public to enter his land.” Id., 524 Pa. at 278, 571 A.2d at 376-377. Before such immunity can be accorded to a landowner, however, three conditions must coalesce; namely:

(1) the landowner must not have willfully or maliciously failed “to guard or warn against a dangerous condition, use, structure, or activity” on the land, 68 P.S. § 477-1; (2) the landowner did not charge the plaintiff for the recreational use of the land, id.; and (3) the injured plaintiff entered the land for “recreational purposes”, id. at § 477-3.

See Zackhery v. Crystal Cave Co., 391 Pa.Super. 471, 474, 571 A.2d 464, 465 (1990) (Citation omitted).

As is indicative in the pleadings of the plaintiffs, there is no assertion that the appellants charged a fee for entry onto the land, nor is there an allegation that the plaintiff— Timothy Topper entered the appellants’ land for “non-recreational purposes”. Therefore, the question for us concerns whether an allegation was made that the landowner willfully or maliciously failed to guard or warn the plaintiff — Timothy Topper against a dangerous condition, use, structure, or activity on the land. If such were the case, and it was denied in responsive pleadings, the appellants’ inability to amend their answer would foreclose the assertion of an affirmative defense, e.g., the plaintiffs’ contention of willful and malicious failure to warn or guard against a dangerous condition at the situs of the accident would constitute a genuine issue of fact to be resolved by the trier-of-fact; it would not be a subject that would receive treatment within the context of a motion for summary judgment. See Pa.R. Civ.P. 1035.

At bar, the plaintiffs have set forth in their pleadings that the appellants have engaged in willful and malicious misconduct taking them out of the immunizing sphere of the RULWA, and if established at trial, the appellants could not rely on the RULWA as a shield to repel the slings and arrows of liability thrust at them by the plaintiffs. See Plaintiffs’ Complaint, Paragraph 24(a)-(c), to which the appellants responded to in Answer at Paragraph 24 by denying the same. Further, the appellants contended in their Memorandum of Law, attached to their petition to amend that:

During the discovery process, [appellants] ha[d] learned through the deposition testimony of the various parties, that plaintiff’s injuries occurred when he was operating his minibike for recreational purposes free of charge on the unimproved property of Defendant Goodwin Homes, Inc.

This, in and of itself, would not justify the grant of the petition to amend given that the plaintiffs argued that their complaint put the appellants on notice of the facts purportedly learned only after the taking of depositions. See Plaintiffs’ Memorandum of Law attached to Answer To Petition For Leave To Amend Pleadings at page 4.

Rather, our own reading of the pleadings of record and the law of amendatory pleading would lead us to allow the appellants’ request to amend. For example, albeit the plaintiffs claimed that the appellants engaged in prohibited conduct (considered an exception to the immunizing effect of the RULWA), their failure to present evidence of such conduct at trial (which they claim would never occur) would preclude the appellants from offering the buffering effect of the RULWA because there had been no evidence submitted in the plaintiffs case-in-chief to require such a response. See Posternack, supra. As such, they could be held liable for engaging in negligent activity, the second prong of the plaintiffs’ attack upon the appellants — the first being willful and malicious conduct, which would succumb to the insulating effect of the RULWA if pleaded.

If the plaintiffs, in truth, intend only to pursue a cause of action premised on negligence, which they contend in their memoranda below and in their brief to us on appeal, then this is even more reason to allow the appellants to amend their answer to include the RULWA as a complete defense. No evidence of willful and malicious conduct and/or charge of entrance fee results in a complete defense to landowners sued by injured parties entering their land for recreational purposes. See Friedman, supra; Zackhery, supra.

Accordingly, in denying the appellants the opportunity to amend their answer to plead the RULWA, the order of court precludes proof at trial of what might possibly be a complete defense to the cause sued upon. See Posternack, supra. Thus, the order being appealed is found not to be interlocutory. See Bender’s Floor Covering Co. v. Gardner, 387 Pa.Super. 531, 564 A.2d 518 (1989).

As to whether the lower court abused its discretion in refusing the appellants leave to amend, it is well-established in this Commonwealth that such amendments should be liberally allowed except where surprise or prejudice to the other party will result, or where the amendment is against a positive rule of law. See Kilian v. Allegheny Co. Dis., 409 Pa. 344, 185 A.2d 517 (1962).

It is the position of the plaintiffs that they focused their discovery/depositions upon a claim premised upon the Attractive Nuisance Doctrine. See Plaintiff’s Appellate Brief at pages 6-7, wherein they assert:

The case as pled [sic] was based on liability ... commonly referred to as the Attractive Nuisance Doctrine____
Discovery was conducted with the intent in mind of meeting the standards set for recovery under the Attractive Nuisance Doctrine. Different types of questions and different avenues of discovery would have been followed had the counsel for the Child-Plaintiff-Appellee been on notice that the defendants intended to invoke the Recreation Immunity defense. This discovery would have been directed to revealing in detail the landowners’ wilful [sic] and wanton misconduct. Additional witnesses would have been deposed. Witnesses already deposed would have been asked more extensive questions concerning their knowledge about the property’s use by children and the steps they took to make it safe or to discover hazards.

(Emphasis added)

It is difficult for this Court to believe, with the plaintiffs’ initial contentions of willful and malicious misconduct attributed to the appellants/landowners in their complaint, and a denial of the same by the appellants in their answer, that the plaintiffs now admit of no intention of pursuing discovery intent on responding to the denial of and reveal the landowners’ claimed willful and malicious misconduct. See Plaintiffs’ Complaint, Paragraph 24(a)-(c); Appellants’ Answer, Paragraph 24. We find this to be disingenuous, for if such be the case, as discussed earlier, then the failure of the plaintiffs to attempt to prove that the appellants engaged in willful and malicious misconduct in regard to the site of the injury affords them the right to proffer the RULWA as a complete defense. With the preceding criterion absent from the scenario, when coupled with the recreational use by the complainant and the charging of no fee by the landlord for such use of the land, the RULWA’s insulating factor is activated and can be asserted as an affirmative defense.

The presence of this viable defense for the appellants undermines the lower court’s belief that it is of “dubious relevance” because supposedly further discovery would do little to uncover proof that the appellants directly or indirectly “donated” their land to the public to secure the immunizing effect of the RULWA. Quite the contrary is true.

In Friedman, the Court stated, unequivocally, that the RULWA “affords protection to owners whose land is used for recreational purposes free of charge, even though the landowner has not donated the land to the public for such purposes.” 524 Pa. at 271, 571 A.2d at 373 (Emphasis added). To the same effect see Gallo v. Yamaha Motor Corp., 363 Pa.Super. 308, 526 A.2d 359 (1987).

Further, we do not find merit in the argument that all previous depositions/discovery would be for naught because such steps would have to be retraced, this time to inquire of the witnesses (some nine individuals previously deposed over a period of one and one-half years) as to matters touching upon the willful and malicious misconduct standard under the RULWA.

The plaintiffs were well aware that the appellants intended to rebut any contention that they engaged in willful and malicious misconduct leading to the plaintiff’s injuries. The record is consistent with such an assessment. Consequently, the plaintiffs had every chance during their initial discovery to cover this ground. They failed to do so, and certainly should not use that as an excuse to deny the appellants the opportunity to amend their answer to permit proof at trial of a possible defense to the allegations made. See Posternack, supra; Zarnecki, supra.

Even if supplemental discovery is needed, we find that neither the additional expense to the parties nor the possible delay in the trial are reasons enough separately or in tandem to justify precluding the appellants from presenting fully their defenses and allowing the case to be decided on its merits. See Appellants’ Appellate Brief at page 18. Cf. Pastore v. Anjo Construction Co., et al., 396 Pa.Super. 58, -, 578 A.2d 21, 27 (1990) (“Because we find that Anjo was entitled to seek refuge under the cloak of the Workmen’s Compensation Act as a ‘statutory employer’, we see no reason not to affirm the amendment allowance of the court below — it did what it was permitted and required to do under the established law of amendatory pleading.”)

Order reversed; jurisdiction relinquished.

BECK, J., concurs in the result.

      . Because we are not dealing with an interlocutory appeal granted by permission (42 Pa.C.S. § 702(b); Pa.R.App.P. 312), or an interlocutory appeal as of right (42 Pa.C.S. § 702(a); Pa.R.App.P. 311), we restrict our review to a determination of whether the order is final for appeal purposes.

      . Parenthetically, if the facts were to the contrary, then the jury could be advised that if it found that the appellants did not engage in willful and malicious conduct, then, under the RULWA, the appellants would be entitled to be exonerated from any level of liability, despite the fact that negligence might have been attributed to the appellants. See
        Friedman, supra. These remarks are made in response to the lower court’s belief that the appellants’ defense is "of very dubious relevance.” See Lower Court Opinion at page 3. We think otherwise.