author: KELLY, Judge.

text:
    665 A.2d 514
    John W. FILLMORE, Appellant, v. Howard HILL, Appellee.
    Superior Court of Pennsylvania.
    Argued June 22, 1995.
    Filed: Sept. 29, 1995.

      Marvin J. Rudnitsky, Selinsgrove, for appellant.
    Joey A. Storaska, Sunbury, for appellee.
    Before ROWLEY, President Judge and BECK and KELLY, JJ.
   KELLY, Judge.

In this opinion, we are called on to determine whether a trial court may properly deem waived an issue relating to a jury’s problematic, but not inconsistent, verdict because a party failed to object to the verdict prior to the jury’s dismissal by the trial court judge. We hold that under such circumstances, a party’s failure to object prior to the jury’s dismissal does not result in the issue’s waiver. Accordingly, for the following reasons, we reverse the order of the trial court and remand for proceedings not inconsistent with this opinion.

This appeal involves a challenge to the trial court’s denial of appellant’s, John W. Fillmore’s (“Fillmore”), motion for a new trial based on the fact that Fillmore waived the issue contained therein by failing to object to the jury verdict prior to the jury’s dismissal. The relevant facts and procedural history are as follows. On September 21, 1991, Fillmore and appellee, Howard Hill (“Hill”), were involved in an automobile accident. After coming to an abrupt stop in order to avoid hitting a car in front of him, Fillmore was struck from behind by Hill, who was travelling behind him. (N.T. 10/10/94 at 2). Fillmore subsequently filed a complaint in negligence against Hill, alleging Hill’s negligence to be the cause of his injuries.

During a three day trial, Fillmore’s expert witness testified that Fillmore suffered various personal injuries, including a disc herniation in the lumbar area. The expert also testified that to a degree of medical certainty, the car accident caused these injuries. (N.T. at 62). Fillmore claimed that, as a result of the accident, he has become permanently disabled, incurred a loss of income and will endure significant pain and suffering in the future. Additionally, Hill’s expert testified that even though Fillmore had previous lower back complaints, Fillmore’s lower back problems were reasonably related to the accident. (N.T. at 77).

At the close of the case, the jury returned the following verdict. The first interrogatory, which asked whether Howard Hill was negligent, was answered ‘Yes”. The second interrogatory, which read: “Was Howard Hill’s negligence a substantial factor in bringing about John Fillmore’s harm?” was answered “Yes”. However, the jury also found that Fillmore was contributorily negligent, and that his contributory negligence was a substantial factor in bringing about his harm. The jury then attributed fifty percent of the causal negligence to each party. Lastly, the jury found that the total compensable damages sustained by Fillmore from the accident was zero. (Verdict Slip, 5/19/94.)

When the foreperson read the verdict, the trial judge noticed that one of the jurors seemed uncomfortable and he suggested that the jury be polled. Fillmore’s counsel made a formal request and the jury was polled. The jury confirmed the verdict and was then dismissed. Fillmore’s counsel did not object to the jury’s verdict. (N.T. 10/10/94 at 4).

Fillmore filed a motion for post-trial relief on May 26, 1994 in which he sought a new trial on the basis that the jury’s damages award of zero was against the weight of the evidence. In an opinion filed October 10, 1994, the trial court denied relief, concluding that Fillmore waived his right to a new trial by not objecting to the verdict before the jury was dismissed. This timely appeal followed.

Fillmore raises the following issues for our review:

A. THE APPELLANT DID NOT WAIVE HIS RIGHT TO OBJECT TO THE JURYS VERDICT AWARDING ZERO DOLLARS IN DAMAGES.
B. A NEW TRIAL SHOULD BE GRANTED BECAUSE THE JURYS AWARD OF ZERO DOLLARS IN DAMAGES IS AGAINST THE WEIGHT OF THE EVIDENCE AND AGAINST THE LAW OF COMPARATIVE NEGLIGENCE.

Appellant’s Brief at 8 and 17.

Fillmore alleges that he did not waive his right to object to the jury’s verdict concerning its award of zero dollars in damages. Specifically, he argues that the cases relied upon by the trial court to support waiver are not controlling because they are significantly distinguishable from the instant case. Fillmore therefore contends that he properly raised the verdict issue through a post-trial motion and concludes that the trial court erred in declaring this issue waived. We agree with Fillmore that the waiver rule is not applicable to the instant ease, and reverse for proceedings consistent with this opinion.

Initially, we note that in order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Boyle v. Steiman, 429 Pa.Super. 1, 10, 631 A.2d 1025, 1030 (1993), alloc. denied, 538 Pa. 663, 649 A.2d 666 (1994). Failure to timely object to a basic and fundamental error, such as an erroneous jury instruction, will result in waiver of that issue. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 258, 322 A.2d 114, 116 (1974). On appeal, the Superior Court will not consider a claim which was not called to the trial court’s attention at a time when any error committed could have been corrected. Noecker v. Johns-Manville Corp., 355 Pa.Super. 463, 471, 513 A.2d 1014, 1018 (1986). The principle rationale underlying the waiver rule is that when an error is pointed out to the trial court, the court then has an opportunity to correct the error. Dilliplaine v. Lehigh Valley Trust Company, supra, 457 Pa. at 258, 322 A.2d at 116; see also Takes v. Metropolitan Edison Co., 440 Pa.Super. 101, 106, 655 A.2d 138, 141 (1995) (en banc) (Dilliplaine waiver rule inspired in part by effort to motivate trial counsel to be diligent and assist court in preventing error at trial stage where it could be corrected). By specifically objecting to any obvious error, the trial court can quickly and easily correct the problem and prevent the need for a new trial. Id. 457 Pa. at 258, 322 A.2d at 116. Additionally, the appellate court should not be required to waste judicial resources correcting a problem that the trial court could have easily corrected if it had been given the opportunity to avoid the necessity of granting a new trial. Id. at 259, 322 A.2d at 117.

Recently, Pennsylvania courts have extended this waiver rule to include cases involving inconsistent verdicts. In City of Philadelphia v. Gray, 534 Pa. 467, 633 A.2d 1090 (1993), the appellant failed to object during trial to inconsistent answers to interrogatories in the verdict. The case involved two defendants, SEPTA and the City of Philadelphia. The jury returned the following verdict. The first interrogatory asked: “Do you find that the defendant, SEPTA driver, was negligent in the operation of his vehicle?” and the jury answered: ‘Tes.” Id. at 471, 633 A.2d at 1094. The question also asked if the “SEPTA driver’s negligence was a substantial factor in the plaintiffs accident and her injuries resulting from that accident?” The jury answered “No” to this question. The second question asked about the City of Philadelphia. The jury answered ‘Tes” the City was negligent and that its negligence was a substantial factor in bringing about the plaintiffs injuries.

However, when asked to divide the causal negligence between the two defendants, the jury assigned 25% to SEPTA’s negligence and 75% to the City’s negligence. Id. at 471, 633 A.2d at 1094. The jury then determined the damages sustained by plaintiff to be $20,000 for injuries and $18,000 for pain and suffering. Neither party objected to the verdict or requested that the jury be polled. Id. On appeal, our Supreme Court, applying the Dilliplaine waiver rule and its rationale, deemed any claim arising from this inconsistency to have been waived. City of Philadelphia v. Gray, supra, 534 Pa. at 477-78, 633 A.2d at 1095.

Shortly thereafter, this Court, in a plurality opinion addressing the issue of waiver, decided Curran v. Greate Bay Hotel and Casino, 434 Pa.Super. 368, 643 A.2d 687 (1994) (en banc), alloc. denied, 539 Pa. 678, 652 A.2d 1323 (1994). The court required an appellant to specifically object during trial to an inconsistent verdict or suffer the consequence of waiver. Id., 434 Pa.Super. at 376, 643 A.2d at 691. That case also involved a similar inconsistency between two defendants: Sands Hotel and Eastern Engineering. Interrogatories one and two asked about the first defendant. Regarding the first and second interrogatories, the jury concluded: “Sands was negligent, but that the negligence of Sands was not a substantial factor in causing harm to plaintiff.” To the third and fourth interrogatories, the jury concluded that Eastern was negligent and its negligence was a substantial factor in causing harm to the plaintiff. However, the jury attributed thirty percent of the casual negligence to Sands and seventy percent to Eastern. See Curran v. Greate Bay Hotel and Casino, supra at 372, 643 A.2d at 688. Recognizing that the waiver rule would not apply in the absence of an inconsistent verdict, the plurality stated:

“It is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury’s findings which can only be defeated when there is no reasonable theory to support the jury’s verdict.” Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 440, 539 A.2d 871, 875 (1988).

Id. at 372, 643 A.2d at 688. However, the Court determined that the jury’s responses to the interrogatories could not be reconciled and thus concluded that because appellant failed to timely lodge an objection, the waiver rule applied. Id. at 374, 643 A.2d at 689.

Several months later, in Picca v. Kriner, 435 Pa.Super. 297, 645 A.2d 868 (1994), alloc, denied, 539 Pa. 653, 651 A.2d 540 (1994), this Court again applied the waiver rule when a party failed to object to a jury verdict. In Picca v. Kriner, supra, the defendant admitted that he caused at least some of the plaintiffs injuries, but in response to an interrogatory which asked if defendant’s negligence was a substantial factor in bringing about the harm to the plaintiff, the jury answered: “No”. Id. at 300, 645 A.2d at 870. The jury was never asked exactly what percent of the injury was attributed to the defendant. This Court observed that because the defendant admitted that he caused at least some of the plaintiffs injuries, it would be incredible for the jury to find that he caused none of the injuries and thus the grant of a new trial would be warranted. Id. However, the appellant did not timely object. Thus, the panel concluded that the appellant’s failure to object prior to the dismissal of the jury constituted waiver. Id. at 302, 645 A.2d at 871. The panel went on to explain that the trial court, by simply explaining to the jury why a decision is problematic, can allow a jury to re-deliberate in order to return an error-free verdict. Id. The panel further noted that this guidance would not be considered an invasion of the province of the jury but merely a request that the jury reconsider their decision in light of these additional instructions. Id.

Once a jury returns its verdict, a trial court judge has the ability to point out the problems and explain that the verdict is flawed because the jury must return a verdict which is both free from ambiguity and clearly understandable. Palmer v. Foss Motors, Inc., 458 Pa. 535, 327 A.2d 80 (1974).

When a jury reaches an ambiguous or improper verdict, one proper remedy is to permit them to correct the mistake or ambiguity, Ason v. Leonhart, 402 Pa. 312, 165 A.2d 625 (1960); Anstine v. Pennsylvania Railroad Co., 342 Pa. 423, 20 A.2d 774 (1941). Pniewski v. Kunda, 237 Pa.Superior Ct. 438, 352 A.2d 462 (1975).

Goertel v. Muth, 331 Pa.Super. 179, 185, 480 A.2d 303, 306 (1984). By the same token, the trial court may not, in its additional instructions, “injeet[ ] itself into the deliberation and encourage a basic change in the intended verdict of the jury. The court in sending the jury back to correct their findings should not suggest a substantive change in their findings.” Robinson v. Brown, 195 Pa.Super. 384, 388, 171 A.2d 865, 868 (1961). The court “must not throw the weight of [its] influence into the deliberation of the jury as to matters exclusively within their province.” Id. (citing 53 American Jurisprudence, “Trial” § 1099).

Instantly, the trial court cited Dilliplaine v. Lehigh Valley Trust Company, supra, and certain of its progeny, City of Philadelphia v. Gray, supra; Curran v. Greate Bay Hotel and Casino, supra; Picca v. Kriner, supra, as controlling and dispositive of the instant case. In the above-mentioned cases, the appellants waived their right to request a new trial by failing to object to an inconsistent verdict during the trial. City of Philadelphia v. Gray, supra 534 Pa. at 477-78, 633 A.2d at 1095 (failure to object to obviously inconsistent verdict will waive right to request new trial in post-trial motions); Curran v. Greate Bay Hotel and Casino, supra 434 Pa.Super. at 376, 643 A.2d at 690 (same).

Here, after weighing both the credibility of the parties’ testimony, along with the conflicting medical expert testimony, the jury found that each party contributed to Fillmore’s injuries by fifty percent, but concluded that Fillmore suffered a zero dollar amount in damages as a result of the accident. (Trial Court Opinion, 10/18/94 at 1). By very definition, this verdict is not inconsistent. See Curran v. Greate Hotel and Casino, supra at 372, 643 A.2d at 688. The jury could have made both the conclusions together without necessarily being inconsistent. Simply because the jury found each parties’ negligence a substantial factor in causing Fillmore’s injuries does not mean that the jury could not simultaneously conclude that the compensable damages amounted to zero dollars. If the jury believed the evidence supported zero damages, then there is a reasonable theory to support this verdict. See e.g. Gallagher v. Marguglio, 429 Pa.Super. 451, 632 A.2d 1309 (1993), alloc. denied, 538 Pa. 612, 645 A.2d 1316 (1994) (new trial not granted when jury found defendant’s negligence a substantial factor in bringing about plaintiff’s injuries but concluded damages were valued at zero dollars); Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984) (jury not required to award any amount of damages where it obviously believed any injury suffered was insignificant). Therefore, the jury’s findings are not inconsistent. Accordingly, the cases relied upon by the trial court to support its conclusion of waiver are inapplicable and thus not controlling. See Curran v. Greate Hotel and Casino, supra, 434 Pa.Super. at 372, 643 A.2d at 688.

Additionally, the instant case is further distinguishable from Picca v. Kriner, supra. In that case, the verdict, on its face, was inconsistent. The jury found that the defendant’s negligence was not a substantial factor in bringing about the plaintiffs harm, even though the defendant admitted that he caused at least some of the plaintiffs injuries. Picca v. Kriner, supra, 435 Pa.Super. at 300, 645 A.2d at 870. The jury could have found that the defendant caused no injury at all (which would have been incredible) or they could have found that the defendant caused such as small amount of injury that it could not qualify as “substantial,” which would be entirely reasonable. Id. The appellant, Picca, could then have objected to the verdict in order to clarify exactly what the jury found. If the jury found that the appellee, Kriner, caused an insubstantial amount of injury, then the trial court judge could have then instructed the jury to state exactly how much injury the appellee caused, which would have enabled the jury to correct the ambiguous verdict, and obviate the need for a new trial. See Goertel v. Muth, supra. This simple guidance would not have invaded the province of the jury because it would have only pointed out a flaw in the verdict and would not have suggested a substantive change.

Instead, in Picca v. Kriner, supra, the appellant waited until after the trial court dismissed the jury to raise an objection. Because the trial court could no longer re-instruct the jury in order to clarify the verdict, a new trial would be required. The right to ask for a new trial was thus waived because the appellant failed to timely object when the problem could have easily been corrected. Id. at 301, 645 A.2d at 871 (citing Dilliplaine v. Lehigh Valley Trust Co., supra). See also Holliday v. Page, 440 Pa.Super. 490, 656 A.2d 136 (1995) (failure to object to ambiguous or flawed jury verdict prior to jury’s dismissal results in waiver of claim on appeal).

Here, however, Fillmore had no reason to object to the verdict before the jury was dismissed. Objecting during trial to the verdict would not have prevented the need for a new trial. Most recently, this Court in Henery v. Shadle, 443 Pa.Super. 331, 661 A.2d 439 (1995), this Court rejected application of waiver under Picca v. Kriner, supra in a similar case.

In Henery v. Shadle, supra, an action brought by a husband and wife for damages for personal injuries arising out of a motor vehicle accident, the jury found that the appellee, Schadle, was negligent, but that her negligence was not a substantial factor in the injuries suffered by appellant, Charles Henery. The jury thus awarded zero damages. Appellant subsequently moved for a new trial, asserting, inter alia, that the jury’s verdict of zero damages was against the weight of the evidence, which was denied. On appeal, appellee argued that under Picca v. Kriner, supra, appellants waived their right to object to the jury verdict because they failed to lodge an objection prior to the dismissal of the jury. This Court rejected application of the waiver rule under Picca v. Kriner because the verdict in that case revealed that the jury misinterpreted overly broad language contained in a specific interrogatory. In Henery v. Shadle, supra, however, the trial court issued a clear, concise jury charge, and even polled the jury on its “zero” damages verdict. Thus, this Court concluded that “[i]t would, therefore, have been specious for appellants to have pointed out any inconsistency, irrationality, or problem with the verdict.” At 336, 661 A.2d at 441. This Court went on to suggest, and we believe properly so, that the waiver rule as applied by Picca v. Kriner, supra “is more prudently restricted to verdicts of obvious inconsistency and clear, certain irrationality.” Id. at 336, 661 A.2d at 442 (emphasis provided).

Here, the trial court judge did not have the option of sending the jury back to re-deliberate because there was no ambiguity or evidence of a misunderstanding. See Robinson v. Brown, supra, 195 Pa.Super. at 384, 171 A.2d at 865. A judge is not at liberty to suggest that the weight of the evidence did not support a damage award. See Robinson v. Brown, supra. The trial court polled the jury, which confirmed the verdict. (N.T. 10/10/95 at 4). This confirmation clarified that the jury did in fact intend the conclusion it reached. Absent an inconsistent or ambiguous jury verdict, the trial judge was powerless to correct any other problems that might have existed. See Goertel v. Muth, supra. Objecting to the verdict would not prevent the possibility of requiring a new trial. Thus, Fillmore timely preserved the issue through post-trial motions, which was the first opportunity he had to ask the trial court to correct the problem. Therefore, we hold that the waiver rule in the instant case is not warranted by the facts.

Appellant’s second issue asserts that the jury’s verdict was against the weight of the evidence. Specifically, he contends that the jury’s zero damages award was not reasonably related to his proven damages. Thus, appellant concludes that a new trial is warranted. We agree.

A jury verdict is set aside as inadequate when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff.

Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994). A new trial is required when the jury’s verdict is so contrary to the evidence so as to “shock one’s sense of justice.” Id.

Instantly, both appellant’s and appellee’s medical experts agreed that appellant’s lower back injury was reasonably related to the accident. Notwithstanding this uncontradicted evidence of damages, the jury awarded appellant a zero damages amount. Thus, because it is clear that the amount of the verdict bears no reasonable relation to the loss suffered by appellant, a new trial must be granted. See Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995) (where evidence of pain and suffering is uncontradicted, jury award of zero damages bears no reasonable relation to evidence at trial, thus warranting new trial); see also Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982) (where fifty percent causal negligence is attributable to defendant and zero damages are awarded for plaintiff, trial court’s denial of new trial constitutes abuse of discretion).

Based upon the foregoing analysis, we conclude that the waiver rule is not applicable in the instant case. Additionally, because the jury’s verdict as to damages was against the weight of the evidence, we reverse and remand to the trial court for a new trial.

Order reversed. Case remanded. Jurisdiction is relinquished.

      . We note Curran v. Greate Bay Hotel and Casino, supra does not represent controlling precedent on the issue of waiver because only four judges found waiver in that case. The fifth judge concurred in the result only and not on the issue of waiver. See McDermott v. Biddle, 436 Pa.Super. 94, 115 n. 8, 647 A.2d 514, 524 n. 8 (1994).

        . The instant case is additionally distinguishable from the cases on waiver relied upon by the trial court because this issue involves the amount of damages. In the three cases regarding waiver and a jury verdict, the problem existed in the answer regarding the apportionment of liability and not the award of damages. City of Philadelphia v. Gray, supra; Curran v. Greate Bay Hotel and Casino, supra; Picca v. Kriner, supra. Appellant does not allege that he deserves a new trial because of the jury’s answers to the interrogatories concerning the apportionment of liability. He only questions the weight of the evidence regarding the damages. Thus, this additional distinguishing factor provides further support for our conclusion that the cases which the trial court used to establish waiver are not dispositive of the instant appeal.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    665 A.2d 813
    COMMONWEALTH of Pennsylvania, Appellant, v. Harry Walt McELROY.
    Superior Court of Pennsylvania.
    Argued April 24, 1995.
    Filed Sept. 1, 1995.

      Joseph A. Massa, Jr., District Attorney, Warren, for Commonwealth, appellant.
    William P. Weichler, Erie, for appellee.
    Michael S. Sherman, Philadelphia, Amicus Curiae.
    Before KELLY, FORD, ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

The Commonwealth of Pennsylvania files this appeal from the Order of the court of common pleas which granted (1) the Motion of appellee to . enforce plea agreement and (2) appellee’s Motion for sanctions. In granting the latter Motion, the trial court ordered exclusion of the testimony of all witnesses who were to be called by the Commonwealth at trial whose tape recorded interviews by Sgt. McFadden of the Pennsylvania State Police (“the PSP”) were erased or destroyed.

The Commonwealth raises two issues, to-wit: (1) Whether the offer of a negotiated guilty plea which appellee accepted is enforceable where appellee had not detrimentally relied upon it and where the trial court had not yet accepted the plea; and (2) Whether the trial court abused its discretion in imposing sanctions against the Commonwealth by barring witnesses’ trial testimony when counsel for the PSP did not provide to either the Commonwealth or to appellee copies of reports of an internal investigation conducted by the PSP Bureau of Professional Responsibility (“the BPR”).

We hold that the offer of the negotiated plea which had not yet been accepted by the trial court is not enforceable against the Commonwealth and that the trial court abused its discretion by imposing the sanction of excluding testimony of witnesses whom the Commonwealth would call at trial and whose interviews had been tape recorded but destroyed or erased. We therefore vacate the Order in question. Our reasoning follows.

Appellee was charged in a five count criminal information with three violations of the Motor Vehicle Code, to-wit: Overtaking vehicle on left (75 Pa.C.S.A § 3303(a)(2)), reckless driving (75 Pa.C.S.A. § 3736) and driving while operator’s privilege is suspended or revoked (75 Pa'.C.S.A. § 1543(a)). He was also charged with two violations of the Crimes Code, to-wit: two counts of reckless endangerment (18 Pa.C.S.A. § 2705). Count one, reckless endangerment, charged appellee with colliding head-on with a vehicle driven by PSP Tpr. Thornton which caused the death of the victim, James Rehe. Count five, reckless endangerment, charged appellee with colliding head-on with Tpr. Thornton’s vehicle while driving at an excessive rate of speed, making illegal passes and increasing speed while being overtaken by the Trooper’s vehicle.

The genesis of these criminal charges was a high-speed chase by Tpr. Kenneth Thornton, who was attempting to stop appellee on S.R. 62 in Warren County. During the course of the chase, Tpr. Thornton’s north-bound vehicle collided with the south-bound vehicle driven by James Rehe. This collision resulted in the death of Mr. Rehe. Following the commencement of formal charges against appellee, Mr. Massa, the District Attorney of Warren County, proposed to appellee’s counsel, Mr. Ambrose, through informal discussions, that appellee plead nolo contendere to Count five, reckless endangerment, in exchange for nolle prosing Counts one through four. Approximately two months following this offer, appellee, through Mr. Ambrose, informed Mr. Massa that he would accept the offer to plead nolo contendere to Count Five in exchange for the nolle prosing of Counts one through four. This was confirmed by letter from Mr. Ambrose to Mr. Massa. The effect of this offer was that appellee would plead nolo contendere to Count Five, which charged reckless endangerment to Tpr. Thornton. Count one, which charged reckless endangerment to Mr. Rehe, would be nolle prossed.

Subsequently, Mr. Massa met with Mr. Smith, counsel for the Rehe family, and the members of the Rehe family to discuss the proposed plea negotiations. The Rehe family objected to this proposal. The family members were outraged because the proposed plea would permit appellee to escape direct responsibility for the death of Mr. Rehe. The Estate of Mr. Rehe had previously commenced a wrongful death action against appellee, Tpr. Thornton and appellee’s trucking company, whose vehicle appellee was operating at the time in question. After this meeting, Mr. Massa informed Mr. Ambrose that Mr. Rehe’s family objected to the proposed plea and that, therefore, the offer would be withdrawn. According to the Opinion of the trial court written in support of its Order granting appellee’s Motion to enforce plea agreement and his Motion for sanctions, Mr. Smith appeared while Mr. Massa and Mr. Ambrose were attempting new plea negotiations for the approval of the court and objected to any plea offer being made and accepted because the Rehe family had been informed by Mr. Massa that no plea agreement would be made. As a result, the trial court deferred further action on this matter.

Appellee and the trial court maintain that because the proposed plea agreement had been offered to and had been accepted by appellee, the Commonwealth could not renege because the plea offer had not been conditioned upon the approval of the Rehe family. This is not the law. Pennsylvania Rule of Criminal Procedure 319(b) provides:

(b) Plea Agreements.
(1) The trial judge shall not participate in the plea negotiations preceding an agreement.
(2) When counsel for both sides have arrived at a plea agreement[,] they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.

(Emphasis supplied).

This Rule has been interpreted by our supreme court to mean that no plea agreement exists unless and until it is presented to the court. Commonwealth v. Porreca, 528 Pa. 46, 595 A.2d 23 (1989). Our supreme court has also held that “[w]here a plea agreement has been entered of record and has been accepted by the trial court, the [Commonwealth] is required to abide by the terms of the plea agreement.” Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993) (rehearing denied). (Emphasis supplied). The Spence court further cautioned: “However, prior to the entry of a guilty plea, the defendant has no right to specific performance of an ‘executory’ agreement.” At 249, 627 A.2d at 1184. (Emphasis supplied). In the matter at bar, appellee’s “plea agreement had neither been entered of record nor accepted by the trial court and was, therefore, not enforceable.” Id. It was, at most, executory. Therefore, appellee is not “entitled to specific performance of the oral plea agreement.” Id. Although the issue in Commonwealth v. Stafford, 272 Pa.Super. 505, 416 A.2d 570 (1979), was the district attorney’s refusal to plea bargain with the appellant, the basis for this court’s rejection of the appellant’s Fourteenth Amendment equal protection claim there is equally applicable to the matter at bar:

The Commonwealth is never under any legal obligation to plea bargain with any defendant. Stated another way[,] a defendant has no constitutional right to a plea bargain arrangement____ The decision as to whether to enter into plea negotiations is a function of prosecutorial discretion^] and we will not review such decisions unless such decisions are based upon an invidious classification such as race, religion or national origin.... No such claim is made here.

At 511, 416 A.2d at 573. (Citation omitted).

This follows from the well-recognized principle that “ ‘[a] District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case.’” Commonwealth v. Stipetich, 539 Pa. 428, 432, 652 A.2d 1294, 1295 (1995), (quoting Commonwealth v. DiPasquale, 431 Pa. 536, 540-41, 246 A.2d 430, 432 (1968), and listing case law, statutes and rules of court setting forth various powers of a district attorney). See also, e.g., Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986) (prosecutorial discretion with respect to determining death penalty cases), Commonwealth v. Buonopane, 410 Pa.Super. 215, 599 A.2d 681 (1991), allocatur denied, 530 Pa. 651, 608 A.2d 27 (1992) (same), and Commonwealth v. Paul, 383 Pa.Super. 486, 557 A.2d 357 (1989) (prosecutorial discretion to submit case to ARD program absent invidiously discriminatory factors unrelated to the protection of society).

The District Attorney is a publicly elected official. Pa. Const, art. 9, sec. 4. As such, s/he is responsible to the people of this Commonwealth. A district attorney may decide, as a function of her/his prosecutorial discretion, that a plea bargain agreement not yet entered of record and approved by the court is not in the best interests and/or for the general welfare of the citizens of this Commonwealth. In that case, it makes little sense, and, indeed, it would violate the trust imposed in that office, to abdicate or to force abdication of prosecutorial discretion to a criminal defendant whose interests are adverse to those of the general citizenry of this Commonwealth.

No claim is made that Mr. Messa’s decision to withdraw the plea offer was “based upon an invidious classification such as race, religion or national origin”, Commonwealth v. Stafford, supra, or upon other factors unrelated to the protection of society. Commonwealth v. Paul, supra. The plea offer was at no time entered of record or accepted by the trial court. Commonwealth v. Spence, supra; Commonwealth v. Porreca, supra. Therefore, appellee is not entitled to receive the benefit of what is, at most, an executory bargain.

As its second issue, the Commonwealth maintains that the trial court abused its discretion in imposing sanctions against it. The sanction imposed was the barring of the testimony at trial of Commonwealth’s witnesses whose interviews with Sgt. McFadden and Cprl. Patterson, the criminal investigator of Tpr. Thornton, were tape recorded by Sgt. McFadden. The basis for this sanction was the Commonwealth’s alleged failure to comply with discovery orders to provide the tape recorded statements of these witnesses prior to the destruction or erasure of these tape recordings.

As a result of the death of Mr. Rehe, the PSP launched an internal investigation of Tpr. Thornton through its BPR. Sgt. McFadden was the personnel assigned to conduct the BPR investigation. He tape recorded the witnesses’ statements for the purpose of that investigation. Cprl. Patterson, on the other hand, was assigned the responsibility for conducting the criminal investigation. He interviewed the same witnesses with Sgt. McFadden but did not tape record their statements. Instead, he made notes of the interviews.

Pursuant to appellee’s request for discovery, the trial court ordered the PSP and Mr. Massa to produce all evidence, including the tape recorded interviews, of the BPR investigation of Tpr. Thornton. However, counsel for the Commissioner of the PSP prepared a declaration signed by Sgt. McFadden that the latter had destroyed the tapes after the preparation of the BPR report and the submission of that report to his superiors. The Commissioner of the PSP also filed a Motion to reconsider the trial court’s earlier discovery order to turn over to appellee the tape recordings of the witnesses’ interviews with Sgt. McFadden. This Motion was denied and resulted in the imposition of sanctions against the Commonwealth by precluding the trial testimony of the witnesses whose interviews were tape recorded by Sgt. McFadden in the course of his BPR investigation.

The Commonwealth’s principal argument is that it had no control over or possession of any materials relating to the BPR investigation of Tpr. Thornton to disclose in connection with its prosecution of appellee. The Commonwealth maintains that, under the circumstances, it was unable to comply with the trial court’s orders to turn over the tape recordings. Sgt. McFadden testified at the hearing held on appellee’s Motion for sanctions that the tapes had been destroyed in March 1993, which was prior to appellee’s discovery request. Appellee admits in his Brief to this court that he was furnished a copy of Sgt. McFadden’s BPR report. See pp. 8, 28.

The Commonwealth’s second argument is that since the tape recordings of Sgt. McFadden’s interview of witnesses pursuant to the BPR investigation were not within its control or possession, the appropriate procedure for appellee to follow was to serve upon the Commissioner of the PSP a subpoena duces tecum for the production of all reports and tape recordings. Therefore, the Commonwealth concludes, the trial court abused its discretion in imposing sanctions against it.

We first address the position of the Commonwealth that appellee failed to avail himself of the procedure of serving the Commissioner of the PSP with a subpoena duces tecum for the production of the tape recordings. In Commonwealth v. Friday, 171 Pa.Super. 397, 90 A.2d 856 (1952), this court ruled that records of the PSP relating to a criminal investigation of an accused who wished to inspect these records could not be disclosed through the testimony of a subordinate PSP officer at trial. The proper mode of procedure, we stated, was the service of a subpoena duces tecum upon the Commissioner of the PSP as the legal custodian of records, assuming the availability of the same. Our decision in Friday is relevant because it recognizes the role of the Commissioner as the legal custodian of the records of the PSP and holds that a criminal defendant may obtain evidence which s/he deems material and which cannot be obtained through other avenues by service of a subpoena duces tecum upon the custodian of the record or other evidence sought.

Nothing precluded appellee from employing the procedure of serving a subpoena duces tecum upon the Commissioner of the PSP for the tape recordings, assuming their availability, after appellee’s counsel, in the course of conducting an independent investigation of this matter, interviewed the witnesses who gave the tape recorded statements and who revealed to him the existence of these tape recordings. See Appellee’s Brief, pp. 7, 22, n. 2. Appellee avers that some of the witnesses advised him that the tape recordings represented the witnesses’ best recollection of the events in question. Id.

The Commonwealth’s primary contention on appeal is that it had no possession of or control over the tape recordings of the witnesses’ statements made pursuant to Sgt. McFadden’s BPR investigation of Tpr. Thornton. Pennsylvania Rule of Criminal Procedure 305B.(1) mandates the Commonwealth to disclose the following to an accused:

(a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth [•]

(Emphasis supplied). Pennsylvania Rule of Criminal Procedure 305B.(2) permits the defense, at the discretion of the court, to obtain discovery of the following evidence “upon a showing that [it is] material to the preparation of the defense[ ] and that the request is reasonable:

(b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial.

(Emphasis supplied).

Appellee relies upon the latter section of the Rule in an apparent attempt to avoid the necessity of showing that or how the tape recordings in question were in the possession or control of the District Attorney pursuant to Rule 305B.(l)(a), supra. Appellee’s strategy, albeit clever, fails because we interpret the requirement of reasonableness under Rule 305B.(2) to mean that the material sought must also be within the control or possession of the Commonwealth. It makes little sensé to order the Commonwealth to make available information or documents pursuant to Rule 305B.(2) when such is not within the Commonwealth’s realm of accessibility. Thus, under either section of the Rule, an accused’s request for discovery must first be within the control or possession of the Commonwealth.

Appellee cites Commonwealth v. Redmond, 395 Pa.Super. 286, 577 A.2d 547, appeal dismissed, 528 Pa. 601, 600 A.2d 190 (1990), to bolster his position that evidence which is not in the possession of the District Attorney is, nevertheless, within the control of the Commonwealth’s Attorney if it is referenced in police reports. In Redmond, the Commonwealth was ordered to divulge, in response to a request for discovery, the name of an informant to which he referred in his report. We held that while the name of the informant was not within the possession of the District Attorney, nevertheless, it was within his control because the investigating PSP officer was to be the chief witness for the prosecution.

Redmond is distinguishable from the case at bar. First, discovery was ordered of evidence which was gathered by an officer of the PSP during a criminal investigation of Redmond. Instantly, the evidence sought was the result of an internal investigation conducted by the BPR to determine if any disciplinary action was warranted against Tpr. Thornton. Secondly, the target of the officer’s criminal investigation in Redmond was the appellee. In this case, the target of the internal investigation was another member of the PSP, not appellee. Thirdly, and most importantly, the investigating PSP officer in Redmond was to be the Commonwealth’s chief witness at trial. In the matter at bar, it is the witnesses who gave the tape recorded interviews to Sgt. McFadden who are to testify for the Commonwealth at trial.

Appellee also cites Kyles v. Whitley, — U.S. -, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), which holds that a prosecutor is not excused under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), from disclosing evidence which is material and which is known to the police but not to the prosecutor. The evidence which was not disclosed in Kyles consisted of inconsistent statements made to the police by an alleged informant who claimed to have information regarding the robbery and murder of an elderly woman, the crimes for which Kyles was convicted. The State of Louisiana responded to Kyles’ discovery request that no exculpatory information existed. Thus, the most important feature distinguishing Kyles was that the petitioner was presented with no discovery. In its argument to the supreme court, the State argued that at least some of the favorable evidence was not known to it until after trial. From this, it seems apparent that the State knew of at least some favorable evidence before trial but that it intentionally, or at least negligently, did not make disclosure to Kyles.

Here, appellee was presented with a copy of Sgt. McFadden’s report of the BPR investigation. The report contained information regarding the witnesses’ interviews. Under the law of this Commonwealth, Pa.R.Crim.P. 305 is violated only when the prosecutor deliberately withholds material and favorable evidence. See Commonwealth v. Montgomery, 533 Pa. 491, 626 A.2d 109 (1993). Instantly, the District Attorney did not deliberately withhold information regarding the existence of the tape recorded interviews. Simply put, Mr. Massa had none to withhold, deliberately or otherwise.

Secondly, the material sought was gleaned as a result of a criminal investigation of Kyles’ involvement in the murder/robbery. Thirdly, at trial, Kyles denied that he was involved in the murder/robbery at all. The defense at Kyles’ trial was that of identification. Kyles wanted the jury to believe that the informant, rather than he, was the perpetrator of the crimes. Here, no issue of identification exists.

Instead, we believe that the decisions of this court in Commonwealth v. Pickering, 368 Pa.Super. 100, 533 A.2d 735 (1987), appeal denied, 522 Pa. 611, 563 A.2d 497 (1988), and Commonwealth v. York, 319 Pa.Super. 13, 465 A.2d 1028 (1983), control.

In Commonwealth v. Pickering, supra, an undercover police officer made notes of drug transactions between herself and the appellant. The officer used these notes to prepare her written reports which were made available to the appellant’s counsel. After preparation of the reports, she destroyed the notes. The appellant contended on appeal that the Commonwealth’s failure to produce the officer’s notes denied him the right to confrontation under the sixth amendment to the United States Constitution and article I, section 9 of the Pennsylvania Constitution. The appellant argued that the notes were relevant and that, without them, he was unable to effectively cross-examine the witness. This court, citing Commonwealth v. York, supra, stated that destruction of a police officer’s notes violates a defendant’s right to confrontation only if the Commonwealth suppressed the evidence following a request for discovery of same by the defense. We also held that where the notes were substantively incorporated into the police report, they would have been merely cumulative of that report had they been produced. See also Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986) (same).

In Commonwealth v. York, supra, an undercover police officer tape recorded details of her drug transactions with the appellee immediately following each purchase. She used these recordings to prepare her police reports. Once the reports were prepared, she recorded over the prior recordings, thus erasing the latter. The officer testified at the appellee’s preliminary hearing that she had used the tape recorded notes to prepare her police reports. Upon motion of the appellee, the trial court ordered that the officer’s preliminary hearing testimony be suppressed because the “action of destroying [the officer’s] tape recorded notes was a complete usurpation of a judicial function in deciding what is admissible and that defense counsel would be severely hindered in their cross examination of Commonwealth witnesses due to their inability to review [the officer’s] tape recorded notes.” At 319 Pa.Super. 17, 465 A.2d at 1030.

This court held that a Brady violation occurs when the evidence sought is not only material and favorable but where the Commonwealth also suppressed the evidence following a defense request for same. It concluded:

In the instant matter there is no evidence that the prosecutor suppressed or destroyed the tapes. On the contrary, testimony from the suppression hearing reveals that [the officer] obliterated the tapes by using them for further recording.

Id at 18, 465 A.2d at 1031. This court then stated that the Commonwealth never had the chance to see the tape recordings, much less to suppress them.

This is similar to what occurred instantly. At the hearing held on appellee’s Motions to compel enforcement of the plea agreement and for sanctions, Sgt. McFadden testified that he had destroyed the tapes after he had prepared and submitted the BPR report to his superiors. He also testified that he had recorded over these tapes following the preparation of his report and that substance of the tape recorded statements had been incorporated into this report. It is apparent, then, that the District Attorney never had a chance to see or hear these tapes and, therefore, could not have suppressed them following appellee’s request for their production. By that time, the tapes had already been recorded over.

Appellee argues: “These witnesses could have included recollections in their [tape] recorded statements that were not reflected in the police reports or their subsequent [trial] testimony.” Appellee’s Brief, p. 36. The response to this argument was well stated in Commonwealth v. York, supra:

In the instant matter while we cannot approve the procedure by [the officer] which erased her recorded impressions, we do not agree that the action taken by the lower court was appropriate. Appellee’s right or opportunity to cross-examine the witnesses is not so severely affected by the absence of the tapes as to warrant the harsh sanction of the witnesses’ suppression. Appellee still has the chance to fully cross-examine the witness regarding her recollections of the events giving rise to the arrest. Appellee can scrutinize [the officer’s] official report in any aspect, as to its contents and compilation, and explore the effect of the destruction of the tapes on the witnesses’ credibility. The credibility of a witness is within the sole province of the finder of fact____

Id. (Citation omitted).

Having said all this, our holding on this issue may be summarized as follows: First, the tape recordings were not discoverable pursuant to Pa.R.Crim.P. 305. Therefore, appellee had the option of securing these tape recordings, assuming their availability, through the service of a subpoena duces tecum upon the Commissioner of the PSP as the legal custodian of PSP records. Where evidence is equally accessible to both the prosecution and the defense, the latter cannot employ Rule 305B. against the Commonwealth. Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765 (1984). The converse is also true where evidence is equally inaccessible, ie., the defense cannot use Rule 305B. as a means to force the Commonwealth to produce evidence to which the Commonwealth has no access, either.

Secondly, because the tapes have been destroyed, neither appellee nor the trial court may use Pa.R.Crim.P. 305 as a tool to punish the Commonwealth for failing to provide the tape recordings and/or for the destruction of the tapes in question when such material failed to meet the requirements of the Rule 305B.(l)(a) and (2). Moreover, and as already noted elsewhere in this Opinion, Sections (l)(a) and (2) of the Rule are worded conjunctively. Therefore, the materiality of and the favorability to appellee of the tape recordings in the case at bar are irrelevant if, as a threshold matter, they were not within the possession or control of the District Attorney or if the request therefor was unreasonable. The Commonwealth is only required to produce evidence which is relevant and which is within its possession. See Commonwealth v. French, 531 Pa. 42, 611 A.2d 175 (1992).

The trial court abused its discretion when it sanctioned the Commonwealth for failing to comply with its discovery order to produce the tape recordings of the witnesses’ interviews with Sgt. McFadden during the course of his BPR investigation of Tpr. Thornton.

Order vacated. Jurisdiction relinquished.

      . We deem the Order from which this appeal is taken to be akin to an Order of suppression because the trial court ordered exclusion of the trial testimony of all Commonwealth witnesses to the events in question whose tape recorded interviews with Sgt. McFadden of the Pennsylvania State Police Bureau of Professional Responsibility were subsequently erased or destroyed. The Commonwealth has made a good faith certification that the Order in question terminates or substantially handicaps the prosecution of its case. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). It is an uncontestable certification which, in and of itself, precipitates and authorizes the instant appeal. Id.

      . The Commonwealth has misworded its second issue. The Commonwealth did, in fact, provide appellee with a copy of Sgt. McFadden’s BPR report. The Order which is the subject of the instant appeal sanctions the District Attorney, rather than counsel for the PSP, for failing to provide or to disclose the existence, prior to their destruction, of the tape recordings of witness interviews conducted by Sgt. McFadden during the course of his BPR investigation of PSP Tpr. Thornton. In the Argument section of its Brief on this issue, the Commonwealth does focus upon the tape recordings and the impact of the Order in question upon the District Attorney rather than upon counsel for the PSP.

      . Note the conjunctive language of both sections of the Rule, supra in text at p. 11. Thus, with respect to Rule 305 B.(l)(a), a showing of materiality is without effect if the evidence sought to be produced is not within the possession or control of the Commonwealth. Similarly is this showing without significance if the request for evidence is not reasonable pursuant to Section B.(2).

      . Given the legislative scheme pertaining to the PSP (see Administrative Code of 1929 [71 P.S. §§ 51 et seq.l, especially Sections 201 [71 P.S. § 61], 205 [71 P.S. § 65(a), (b) and (e) ], 710 [71 P.S. § 250(b), (c), (d) and (f)] and 711 [71 P.S. § 251(a) and (b)(1) and (2)]), we are unable to understand, in any event, how the information sought — tape recordings of witnesses' interviews conducted as part of the BPR investigation of Tpr. Thornton — could be within the possession or control of the District Attorney of Warren County. In fact, investigative reports are not even subject to disclosure in PSP court martial proceedings conducted against any enlistee thereof. Stouffer v. Commonwealth, Pennsylvania State Police, 76 Pa.Commw. 397, 464 A.2d 595 (1983).

      . See p. 11, supra, and note 3, supra at p. 12.

      . Despite having received a copy of Sgt. McFadden’s BPR report, appellee still maintains that the tape recordings tire necessary because they represent what the witnesses actually said. Because of our holding that this material was not, as a threshold matter, within the possession or control of the Commonwealth and that the request therefor was also unreasonable (see Pa.R.Crim.P. 305 B.l(a) and (2)), we deem this argument moot.


author: HOFFMAN, Judge.

text:
    665 A.2d 821
    COMMONWEALTH of Pennsylvania v. Robert FRANCIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 7, 1995.
    Filed Sept. 20, 1995.

      Harvey A. Sernovitz, Philadelphia, for appellant.
    Thomas Dolgenas, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, President Judge, and CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from a September 16, 1994 judgment of sentence for two counts of homicide by vehicle. Appellant, Robert Francis, raises the following issues for our review:

1. Was the evidence adduced at trial insufficient to prove the requisite elements of homicide by vehicle beyond a reasonable doubt?
2. Did the Commonwealth’s introduction of evidence at trial that Appellant had a suspended license at the time of the underlying vehicular accident and the Commonwealth’s elaboration thereon as to the number of Appellant’s license suspensions breached [sic] the Commonwealth’s oral agreement with defense counsel that it would not introduce any such evidence at trial constitute prosecutorial misconduct warranting a mistrial?
3. Did the trial court abuse its sentencing discretion in imposing consecutive sentences which were clearly outside the Sentencing Guidelines without first determining the appropriate sentences under the guidelines and without articulating its reasons for its deviation from the guidelines?

Appellant’s Brief at 3. For the following reasons, we reverse.

On May 5, 1993 at 12:30 p.m., appellant was driving in the center lane of southbound 1-95 with a screen door tied to the roof of the car. At the time, the traffic flow was moderate to heavy, and a light rain was falling. When the door blew off the roof, appellant attempted to retrieve the door by backing up into the flow of traffic while still in the center lane. This caused a nine vehicle pileup, in which two individuals, Harry and Marie Rutter, were killed.

Appellant was subsequently arrested and charged with two counts of involuntary manslaughter, one count of risking a catastrophe, and two counts of homicide by vehicle. Following a bench trial, appellant was found guilty of two counts of homicide by vehicle. Post-verdict motions were denied, and this timely appeal followed.

Appellant first argues that the evidence presented at trial was insufficient to sustain the verdicts of homicide by vehicle. In evaluating a sufficiency claim, this Court must view all the evidence in the light most favorable to the verdict winner, draw all reasonable inferences in its favor, and then determine whether the fact finder could have reasonably found every element of the crime to be established beyond a reasonable doubt. Commonwealth v. Nicotra, 425 Pa.Super. 600, 603, 625 A.2d 1259, 1261 (1993).

To establish homicide by vehicle, the Commonwealth must prove beyond a reasonable doubt that the defendant violated a provision of the Motor Vehicle Code and that this violation was a cause of the victim’s death. See Commonwealth v. Cheatham, 419 Pa.Super. 603, 607-08, 615 A.2d 802, 804-05 (1992). Causation will only be found where the defendant’s violation of the Motor Vehicle Code was a direct and substantial factor in the death of the victim, and the fatal result was not extraordinary or remote. Commonwealth v. Rementer, 410 Pa.Super. 9, 22-23, 598 A.2d 1300, 1306 (1991), appeal denied, 533 Pa. 599, 617 A.2d 1273 (1992). The Commonwealth must also establish that the defendant’s conduct was criminally negligent or reckless. Commonwealth v. Heck, 517 Pa. 192, 201, 535 A.2d 575, 580 (1987).

After careful review of the record and the parties’ briefs, we conclude that there was sufficient evidence to convict appellant of homicide by vehicle. The Commonwealth established beyond a reasonable doubt that appellant violated 75 Pa.C.S. § 4903, which prohibits any backing up on a limited access highway such as 1-95. The Commonwealth also proved beyond a reasonable doubt, through expert and eyewitness testimony, that appellant’s act of backing up his vehicle into traffic directly caused Mr. Rutter to lose control of his vehicle, which precipitated the multiple vehicle accident in which the Rutters were killed. Finally, we find that appellant’s conduct was criminally negligent, as the backing up of a vehicle into oncoming traffic traveling 55 miles per hour is a gross deviation from the standard of care observed by a reasonable person. See Heck, 517 Pa. at 201, 535 A.2d at 580 (criminal negligence requires gross deviation from standard of care reasonable person would observe); In the Interest of Hyduke, 371 Pa.Super. 380, 388, 538 A.2d 66, 70 (1988) (criminal negligence established where appellant drove 85 miles per hour, lost control of his vehicle, and crossed the center line); Cheatham, 419 Pa.Super. at 611-12, 615 A.2d at 806-07 (epileptic was criminally negligent for driving while knowing he was subject to seizures). Accordingly, we find that appellant’s sufficiency claim has no merit.

Next, appellant contends that the prosecutor’s misconduct at trial was so egregious that a new trial is warranted. Specifically, before trial, defense counsel notified the prosecution that he intended to make both a motion in limine to exclude appellant’s suspended driving privileges and his driving record from trial, and a motion to suppress appellant’s admission at the scene of the accident that his license was suspended. At that time, the prosecution informed defense counsel that these motions would not be necessary, and he orally agreed to exclude such evidence from trial. Appellant maintains that the prosecutor deliberately and willfully breached this agreement, which prevented him from receiving a fair trial.

The Pennsylvania Supreme Court has stated that “[t]he essence of a finding of prosecutorial misconduct is that the prosecutor, a person who holds a unique position of trust in our society, has abused that trust in order to prejudice and deliberately mislead [the factfinder].” Commonwealth v. Pierce, 537 Pa. 514, 529, 645 A.2d 189, 197 (1994). This trust includes a prosecutor’s duty to live up to its agreements with defense counsel. See Commonwealth v. Ginn, 402 Pa.Super. 405, 587 A.2d 314 (1991) (enforcing prosecutor’s agreement to dismiss charges if defendants were cleared of theft by an accountant, despite prosecutor’s contention that accountant’s audit was inadequate). Prosecutorial misconduct will justify a new trial where the unavoidable effect of the conduct or language was to prejudice the factfinder to the extent that the factfinder was rendered incapable of fairly weighing the evidence and entering an objective verdict. See Pierce, 537 Pa. at 528, 645 A.2d at 196. If the prosecutorial misconduct contributed to the verdict, it will be deemed prejudicial and a new trial will be required. Commonwealth v. Weisman, 401 Pa.Super. 62, 71, 584 A.2d 980, 985 (1990), appeal denied, 528 Pa. 644, 600 A.2d 195 (1991).

Here, a review of the record reveals that the Commonwealth questioned an investigating officer about whether appellant had a valid driver’s license at the time of the accident. The officer answered that appellant admitted at the scene of the accident that his license was suspended. Following a timely objection by defense counsel, there was a discussion among both counsel and the trial court over the relevancy of this line of questioning and the breach of the pre-trial agreement. During this discussion, the prosecutor deliberately and unnecessarily revealed to the trial court that appellant’s driver’s license had been suspended twenty times. Therefore, we find that the prosecutor directly violated the pre-trial agreement between the parties, and abused the trust placed in him by defense counsel. See Pierce, swpra.

We further note that both the status of appellant’s license at the time of the accident and appellant’s previous license suspensions were not only irrelevant to the charge of homicide by vehicle but highly prejudicial to appellant. See Cheatham, 419 Pa.Super. at 609, 615 A.2d at 805 (stating that the violation of driving without a valid license will not, in and of itself, support a charge of homicide by vehicle). In fact, the Commonwealth acknowledged on the record that the status of appellant’s license at the time of the accident was not a direct and substantial cause of the accident that killed the Rutters. N.T., June 6, 1994 at 148-49. Accordingly, we find that the prosecutor’s breach of the pre-trial agreement with defense counsel was a deliberate attempt to reveal information that would mislead the factfinder and prejudice appellant. Consequently, we find that the record supports a finding of prosecutorial misconduct.

However, to order a new trial, we must also find that the misconduct actually prejudiced the factfinder. Pierce, supra. We recognize that trial judges are presumed to ignore prejudicial material when acting as factfinder. Commonwealth v. Irwin, 432 Pa.Super. 508, 513, 639 A.2d 52, 54 (1994), appeal denied 540 Pa. 629, 658 A.2d 793 (1994). However, in the instant case, the record demonstrates that the material improperly introduced by the prosecutor influenced the verdict. Immediately after the prosecutor disclosed that appellant’s license had been suspended twenty times, the trial court asked, “How many times?” Thereafter, the court continued to refer to the fact that appellant’s license had been suspended twenty times, that appellant should not have been driving at the time of the accident, and that the suspensions were relevant to the offense of homicide by vehicle.

For example, the following exchange occurred after the court had learned that the license suspensions were offered improperly and after the prosecution admitted that the license suspensions were not relevant to the charge of homicide by vehicle:

The Court: He shouldn’t have been driving and you know it. It’s unbelievable. How many suspensions, twenty?
[Defense Counsel]: “How many suspensions, twenty?” I renew my request for a mistrial.
The Court: No. I think it’s relevant. Somebody who willfully drives a car knowing that he has a suspended license is a violation of the law. That’s part of vehicular homicide.

N.T., June 6,1994 at 206.

In addition, after rendering its verdict, the trial court stated the following:

The Court: Look, ... [appellant] has been very negligent as a driver, and he is very lucky he hasn’t killed more people, with all those suspensions and everything, even driving around without a license. I mean, it’s incredible to me how many people there are in this city when I get into my car to drive I don’t know if the person who is ahead of me has a license, let alone insurance.

N.T., June 6, 1994 at 236. See also N.T., September 7, 1994 at 5-6 (at the sentencing hearing, the trial court affirmed its belief that the prosecution was correct in introducing appellant’s driving record as it was relevant to appellant’s mens rea for homicide by vehicle).

Therefore, as these comments by the trial court demonstrate that appellant’s license suspensions contributed to the verdict of homicide by vehicle, we find that the prosecutor’s willful breach of the agreement to exclude the suspensions from evidence prejudiced appellant. See Weisman, supra.

Accordingly, for the above reasons, we reverse the judgment of sentence and remand for a new trial.

Reversed and remanded. Jurisdiction relinquished.

      . 75 Pa.C.S. § 3732.

      . 18 Pa.C.S. § 2504.

      . 18 Pa.C.S. § 3302.

      . Although the admissibility of this evidence was never decided below because of the agreement between counsel, we believe the evidence should have been excluded from trial because it was both irrelevant and unduly prejudicial to appellant.

      . Because of our disposition of the above issue, we need not address appellant’s third claim.


author: TAMILIA, Judge:

text:
    665 A.2d 825
    COMMONWEALTH of Pennsylvania v. Alan PRESBURY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1995.
    Filed Sept. 21, 1995.

      David M. McGlaughlin, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, for Commonwealth, appellee.
    Before MCEWEN, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

Alan Presbury appeals from the May 16, 1994 judgment of sentence imposing a term of life imprisonment and consecutive lesser sentences. Following a jury trial, appellant was convicted of first degree murder, criminal conspiracy, violation of the Uniform Firearms Act (UFA) and possessing an instrument of crime. The facts of this case, as recited by the trial court, are as follows.

On the morning of January 17, 1993, at around 9:00 a.m., the decedent, Brian Moore, walked down the 2200 block of Sergeant Street in North Philadelphia with a fifteen-year old girlfriend. Unbeknownst to Moore, [appellant] Pres-bury and [Maurice] Revels — disguised in black ski masks and armed with semi-automatic firearms — waited nearby in a stolen van for Moore to leave his home. Upon seeing Moore, defendants immediately rode along-side the couple, stopped the van, and emerged with their guns drawn. Moore, believing that he was the intended victim of a robbery, offered defendants his gold chain. Instead of accepting the chain, defendants told Moore that they wanted him.
Defendants pushed the girl aside and pursued Moore as he fled the scene. Although defendants shot Moore in the back, Moore continued running toward the neighborhood community center. Upon reaching the community center, Moore broke the center’s door off its hinges and bolted up a flight of stairs to the second floor. Defendants tracked the terrified Moore to the second-floor front room of the community center and shot at Moore when they found him. With nowhere else to run, Moore jumped from the second floor window. As Moore lay immobile on the ground, defendant Presbury came to the second floor window that Moore had just leapt from and proceeded to shoot down at Moore. Meanwhile, having seen Moore jump, defendant Revels ran down the stairs and also fired at the prone Moore. Defendant Presbury soon joined defendant Revels at street-level in shooting Moore.

(Slip Op., Greenspan, J., 10/11/94, pp. 3-4.)

On March 3, 1994, a jury convicted appellant and Maurice Revels of the aforementioned charges. Following a penalty hearing, the jury set the penalty for the first degree murder convictions at life imprisonment. The Honorable Jane Cutler Greenspan then imposed upon appellant and Revels the life terms recommended by the jury and consecutive terms of five (5) to ten (10) years’ imprisonment for conspiracy and eighteen (18) months to five (5) years’ imprisonment for violation of the UFA.

On appeal, appellant first argues that the trial court erred in denying his motion to sever his trial from that of co-defendant Revels. Appellant claims severance was proper because, unlike himself, Revels confessed to killing Brian Moore and his confession implicated appellant. Thus, reasons appellant, he was prejudiced by the admission of Revels’ confession.

Criminal defendants may be joined where they allegedly participated in the same act or transaction. Pa.R.Crim.P. 1127(A)(2). Where conspiracy is charged, co-defendants should be tried together. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985) (reargument denied), appeal denied. Further, “it is well established that a motion for severance is addressed to the sound discretion of the trial court, and that its decision will not be disturbed absent a manifest abuse of discretion.” Commonwealth v. Jones, 530 Pa. 591, 602, 610 A.2d 931, 936 (1992) (reargument denied). In determining whether to sever certain defendants, the court must balance the need to minimize the prejudice that may be caused by consolidation against the general policy of encouraging judicial economy. Commonwealth v. Patterson, 519 Pa. 190, 546 A.2d 596 (1988). A better chance of acquittal from a separate trial is not sufficient cause to warrant severance. See Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983). Rather, the defenses presented by the various defendants must be “irreconcilable and exclusive” and “conflict at the core” before the substantial prejudice burden is met. Commonwealth v. Bennie, 352 Pa.Super. 558, 566, 508 A.2d 1211, 1215 (1986).

Instantly, Revels’ confession, which originally referred to appellant by name, was redacted prior to trial to refer to appellant only as “other guy.” Nonetheless, appellant claims that he was deprived of his “confrontation and fair trial rights.” (Appellant’s brief at 10.) Appellant also claims he was deprived of his right to remain silent because he “was forced to testify to deny not only his involvement in this homicide, but [also] what his own co-defendant had stated in his confession.” (Id.) While appellant never states it directly, the obvious implication of his argument is that the jury was able to identify appellant as “other guy” by reading the edited confession in light of other evidence presented at trial. This suggestion necessarily lies at the heart of appellant’s argument because, without it, he would have had nothing to “confront” via cross-examination or “deny” upon taking the witness stand.

Modem law regarding the admissibility of a co-defendant’s confession in a joint trial has its genesis in the landmark United States Supreme Court case of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Our Court has discussed Bruton as follows:

In Bruton, co-defendant Evans’ confession, which implicated Bruton in a robbery, was read to the jury. The trial court, in accord with Delli Paoli v. U.S., 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957) admitted the confession unedited and cautioned the jury that Evans’ confession was inadmissible hearsay against Bruton and was to be considered only against Evans. Evans exercised his privilege not to testify. The Supreme Court set aside Bruton’s conviction, overruling Delli Paoli because “of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton’s] guilt.” 391 U.S. at 126, 88 S.Ct. at 1622. The Court emphasized that Evans’ statement was “powerfully incriminating” as to Bruton since it directly inculpated him in the crime and that Evans’ confession “added substantial, perhaps even critical, weight to the Government’s case.” id. at 128, 88 S.Ct. at 1623. The Court thus held that Bruton had been denied his right of confrontation since Evans’ extrajudicial statement inculpating him went to the jury without Bruton having the opportunity to cross-examine Evans.

Commonwealth v. Rawls, 276 Pa.Super. 89, 94, 419 A.2d 109, 111 (1980).

In order to comply with the mandate of Bruton, Pennsylvania courts have approved the practice of redaction, whereby all testimonial references in a confession to anyone other than the declarant are omitted. See Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986); Commonwealth v. Hess, 378 Pa.Super. 221 n. 1, 548 A.2d 582 n. 1 (1988), appeal denied, 522 Pa. 618, 563 A.2d 887 (1989); Commonwealth v. Council, 355 Pa.Super. 442, 513 A.2d 1003 (1986), appeal denied, 519 Pa. 664, 548 A.2d 253 (1988); Commonwealth v. Sanford, 323 Pa.Super. 436, 470 A.2d 998 (1984); Rawls, supra; Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979).

In Rawls, we confronted the identical argument advanced by appellant herein, namely, that he was prejudiced by the admission of his co-defendant’s confession, even though redacted, because the jury was able to associate appellant with the confession by reading it in light of other trial evidence. The Rawls Court, engaging in a comprehensive review of state and federal law, held as follows:

In a number of cases, non-confessing defendants have argued “contextual inculpation” as does the instant appellant, viz: the edited confession, when read in light of other evidence connecting the defendant to the crime, tends to identify him as a participant, thus violating Bruton. The courts have consistently rejected such an argument and have found Bruton inapplicable since the redacted statement was not “powerfully incriminating” as to the defendant. In [U.S. v. Wingate, 520 F.2d 309 (2d Cir., 1975) ], for example, a co-defendant’s redacted confession had been admitted into evidence with cautionary instructions. The complaining defendant (Wingate) argued that the statement, read in light of other evidence connecting him with the declarant, tended to identify him as a co-conspirator. The Second Circuit disagreed reasoning that the co-defendant’s statement did not sufficiently incriminate Wingate inasmuch as, “[OJnly when combined with considerable other evidence, which amply established Wingate’s guilt [did] the statements tend to incriminate him.” 520 F.2d at 314. Similarly, in U.S. ex rel. Nelson v. Follette, 430 F.2d 1055 (2 Cir., 1970) two defendants, Biggins and Nelson, were tried jointly for a bank robbery. Biggins confessed, naming one “Oliver” as his accomplice and physically describing “Oliver”. The confession also stated that Biggins and “Oliver” were at a certain bar just prior to the robbery. Other evidence at the trial established a close physical resemblance between Nelson and “Oliver” and further that Nelson and Biggins were often seen together at the bar mentioned in the confession. Nelson contended that confession, considered in light of the other evidence, “necessarily implicated” him as “Oliver”. The court held no Bruton violation had occurred: “Biggins’ statements were not clearly inculpatory because they alone did not serve to connect Nelson with the crime ... Biggins’ statements were not the type of powerfully incriminating statements to which the court had reference in Bruton.” 430 F.2d at 1058.
In U.S. v. Holleman, 575 F.2d 139 (7 Cir., 1978); U.S. v. Knuckles, 581 F.2d 305 (2 Cir., 1978); U.S. v. English, 501 F.2d 1254 (7 Cir., 1974); and U.S. v. Lipowitz, 407 F.2d 597 (3 Cir., 1969), the specific names of the defendants were excised from the confessors’ statements and substituted with such words as “other individuals”, “other persons”, “we”, “a male individual”. In each case, the defendant whose name had been deleted alleged that the redaction was insufficient since the confession, when considered along with other evidence, clearly revealed the defendant to be the “male individual” or “other person” referred to in the confession. In each case, the court rejected this argument finding the statement, as edited, did not mention the defendant by name, was not “clearly inculpatory” as to him, and thus not “powerfully incriminating.”---- We think the reasoning of the foregoing cases is dispositive of the instant appeal.

Rawls, supra at 95-96, 419 A.2d at 112.

In Chestnut, supra, our Supreme Court, citing Rawls, also rejected the “contextual implication” argument of an appellant whose co-defendant’s confession was redacted and introduced at trial. Id. at 173, 512 A.2d at 605 (allowing such an argument “would have the likely effect of making all statements by a co-defendant inadmissible, regardless of whether they could be properly redacted.”).

Based on the foregoing authority, we find that the admission of Revels’ edited confession did not unconstitutionally prejudice appellant. Appellant was not named in the confession as edited. Reference was made to “other guy”, but not to anyone by name. Revels’ confession implicated no one but Revels and, unlike the confession in Bruton, it did not shift responsibility to appellant. Revels’ confession implicated appellant only insofar as “other evidence” tied appellant to the murder and to Revels, but we do not believe that the confession, standing alone, is “powerfully incriminating” to appellant since it alone did not connect him with the crime. Rawls, supra at 97, 419 A.2d at 113, citing U.S. v. Belle, 593 F.2d 487, 494 (3 Cir., 1979). Moreover, Revels took the stand and was cross-examined by appellant’s counsel concerning the confession, at which time Revels denied making the statement and denied that appellant was involved in the shooting (N.T., 3/1/94, p. 114). Thus, the constitutional underpinning of Bruton — the Sixth Amendment right of confrontation and cross-examination — was not offended at appellant’s trial. Rawls, supra. We also note that the jury was instructed not to use any part of Revels’ statement against appellant (N.T., 3/2/94, pp. 204-205).

Additionally, we find that Revels’ confession was not in any way “critical” to the Commonwealth’s case against appellant, as contemplated by Bruton. No less than three witnesses testified appellant and Revels both admitted that they had killed Brian Moore. Two of these witnesses also testified appellant and Revels told them that they had targeted the victim because he had robbed them in the past. One witness, Christopher Perrin, whose preliminary hearing testimony was admitted because of his death prior to trial, testified that he saw the black ski masks and guns used in the killing in the possession of appellant and Revels (N.T., 5/14/93, p. 133). Hence, Revels’ statement was not the type of incrimination which would lend “substantial, perhaps critical, weight” to the Commonwealth’s case against appellant. We therefore conclude the introduction of Revels’ confession did not contravene Bruton or violate his constitutional rights to remain silent or confront witnesses. Thus, as appellant’s motion to sever was premised on the argument that the admission of Revels’ confession unconstitutionally prejudiced his case, it was properly denied.

Appellant next contends that the trial court erred in admitting at trial the incriminating preliminary hearing testimony of Christopher Perrin, who died prior to trial. Specifically, appellant claims that he lacked a “full and fair opportunity to cross-examine” Perrin. (Appellant’s brief at 17.)

The admission of an unavailable witness’ prior recorded preliminary hearing testimony is permitted if the defendant was represented by counsel and had a full opportunity to cross-examine the witness. Commonwealth v. Carbaugh, 423 Pa.Super. 178, 620 A.2d 1169 (1993); Chestnut, supra. At the preliminary hearing in the instant case, appellant was present, had counsel, and was afforded and exercised the opportunity to cross-examine Perrin. Nonetheless, appellant claims that his opportunity to cross-examine was not “full and fair”, (Appellant’s brief at 20), because: (1) “the court would not allow counsel to explore Perrin’s reputation and drug dealing activities” (Appellant’s brief at 19); (2) “counsel was not permitted to explore why or on what basis Perrin was not charged or what agreements were made when he was obviously a co-conspirator”, id.; and (3) “the court was obviously in a hurry,” (Appellant’s brief at 18).

As to contention (1), we are unable to locate, and appellant does not direct our attention to, any attempt by appellant’s counsel at the preliminary hearing to broach the reputation or drug dealing activities of Perrin. As to drug dealing, however, Revels’ attorney cross-examined Perrin as follows:

Q. Is Brian Moore a drug dealer?
A. Yes.
Q. How did you know that?
A. Who ain’t no drug dealer?
Q. So you are too?
Yes or no?
Q. Yes or no, sir?
A, Yeah.
Q. So when you were selling drugs, did you sell in an area
near Brian Moore?
A. No.
Q. So he had his own turf?
A. Yeah.
Q. And you had your own turf?
A. Yeah.

(N.T., 5/13/93, pp. 141-142.)

Thus, since evidence of drug dealing by Perrin was elicited by the counsel for Revels, any attempt by appellant’s counsel to elicit the evidence would have been repetitive. Likewise, as to appellant’s contention (2), Revels’ counsel elicited the following on cross-examination:

Q. Were you advised if you cooperated with the police and gave them a statement, that you would not be charged with murder?
A. No.
Q. Were you ever told that if you gave statements implicating these two people or putting these two men into the killing of Brian Moore, that you would not have charges brought against you?
A. You asked me that, I answered you.
Q. Thank you, I appreciate you pointing that out to me. Now what’s the answer?
A. No.
Q. No?
THE COURT: Answer is no.
BY MR. STEIN:
Q. And have you been charged?
A. No.
Q. And everything you said here today you told the police; is that right?
A. Yes.
Q. So in other words, after you gave your statement each time, each of the four statements you gave, the police let you get up and walk out of the police station; is that right?
A. Yes.

(N.T. at 162-164.) Again, since the topic of a deal by Perrin with the prosecutors in exchange for his testimony was covered by Revels’ attorney on cross-examination, appellant cannot complain that his cross-examination was unfairly limited.

Finally, we reject appellant’s claim that the preliminary hearing court was “in a hurry.” Perrin’s testimony, the need for which appellant characterizes as “minimal”, (Appellant’s brief at 19), totals 111 pages, 32 of which are devoted to cross-examination. While the cross-examination by appellant’s attorney covers only eight of those pages, this is clearly due to the extensive cross-examination by Revels’ attorney, who proceeded prior to appellant’s attorney and aggressively probed every aspect of Perrin’s story. Further, the court only sustained objections to questions by appellant’s counsel that were clearly argumentative (see N.T., 5/13/93, pp. 166, 167, 169, 170). In sum, our thorough review of the preliminary hearing transcript reveals that the cross-examination of Perrin was full and fair. Its admission at the subsequent trial of appellant was therefore proper. Carbaugh, Chestnut, supra.

Appellant next contends that the trial court erred in permitting the jury to consider as substantive evidence the prior inconsistent statements of a Commonwealth witness, Leatrice Jones. Ms. Jones testified at trial that Maurice Revels merely accompanied her to a gun store to buy what subsequently became one of the weapons used to murder Brian Moore. Jones, however, denied that Revels had specifically instructed her to buy the weapon or that he had stolen the gun from her house prior to the killing. This testimony was inconsistent with a prior statement which Jones had given to police on March 1, 1993. The statement was handwritten verbatim by the police and had been signed by Jones. When confronted with the statement at trial, Jones denied making many of the comments attributed to her. Jones conceded, however, that she had made a statement to police and that she made corrections and initialed each page before signing the statement.

Appellant now argues that the statement should not have been submitted to the jury as substantive evidence because, at trial, “Leatrice Jones denied making many of the statements the Commonwealth attempted to attribute to her. As such, she did not adopt her prior statements. It is only where the witness admits the prior statements were made by them which will justify the charge on substantive evidence given here.” (Appellant’s brief at 23.) We reject appellant’s claim that a witness must adopt, at trial, a prior inconsistent statement before it can be submitted as substantive evidence.

In Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), our Supreme Court set forth, as follows, the circumstances under which a prior inconsistent statement may be admitted as substantive evidence:

[W]e now hold that a prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’s statements.

Lively, supra at 471, 610 A.2d at 10. In rejecting the identical claim raised by appellant herein, our Court has applied Lively as follows:

Contrary to appellant’s suggestion, there is no requirement that a -witness, at the time of trial, adopt his or her prior statement as being truthful in order for the statement to be admissible under Commonwealth v. Lively supra. If this were so, the statement would not be inconsistent with the witness’s trial testimony and there would be no need to introduce the prior statement. The requirement of Lively is that a prior inconsistent statement, which has been reduced to writing, will be admissible as substantive evidence if the statement, at the time when it was made, was signed and adopted by the -witness. This requirement is to ensure that the witness’s prior statement be accurately memorialized, as where prior testimony has been transcribed or where a prior statement has been recorded verbatim.

Commonwealth v. Jones, 434 Pa.Super. 469, 476, 644 A.2d 177, 180 (1994).

Instantly, the prior statement was signed and adopted by Jones at the time the statement was made. Moreover, at trial, she acknowledged making a statement to police and admitted making some of the comments attributed to her. Finally, we note that the statement in question satisfied Lively as “a statement that is a contemporaneous verbatim recording of the witness’s statement.” Lively, supra at 471, 610 A.2d at 10; see also Commonwealth v. Ragan, 538 Pa. 2, 17, 645 A.2d 811, 818 (1994) (“Such a statement, which was not only recorded verbatim contemporaneously but also reduced 'to writing and signed by the declarant, clearly satisfies the requirements of Lively). Under these circumstances, we hold that the requirements of Lively were met. Thus, the prior inconsistent statement of Leatriee Jones was properly admitted as substantive evidence. Ragan, Jones, supra.

Appellant’s fourth contention on appeal is that the trial court erred in refusing to allow the testimony of Deborah Griffin, Esquire, to the effect that her deceased client, Christopher Perrin, admitted his complicity in the murder of Brian Moore and that he had stolen one of the murder weapons. Appellant claims that these statements “are clearly admissible as exceptions to the hearsay rule because they are admissions against penal interest.” (Appellant’s brief at 21.) The alleged admission occurred during Attorney Griffin’s representation of Perrin while he testified at the preliminary hearing in this case.

Our Supreme Court has discussed the hearsay exception asserted by appellant as follows:

Public policy, the fundamental principles of fairness and due process of law require the admission of declarations against penal interest where it can be determined that those statements: (1) exculpate the defendant from the crime for which he is charged; (2) are inherently trustworthy in that they are written or orally made to reliable persons of authority or those having adverse interests to the declarant; and, that they are made pre-trial or during the trial itself.

Commonwealth v. Hackett, 225 Pa.Super. 22, 29-30, 307 A.2d 334 (1973).

Unfortunately, our review of appellant’s claim is hampered by the apparent unavailability of the trial transcripts of February 22 and 25, 1994. While both the Commonwealth and appellant cite these transcripts, they have not been provided for our review, and neither party provides a verbatim account of the statements allegedly made by Perrin. This deficiency is critical because the application of the Hackett rules turns on the precise nature of the statement allegedly uttered.

Appellant characterizes Perrin’s statement as follows:

Christopher Perrin admitted to [Attorney Griffin] not only that he shot Brian Moore, but that he stole one of the weapons used in the shooting.

(Appellant’s brief at 21.) The Commonwealth describes the statement thusly:

[Perrin allegedly] admitted to [Attorney Griffin] that he shot the victim and then stole the murder weapon.

(Commonwealth’s brief at 26.) The difficulty with Perrin’s alleged statement, as characterized, by the parties, is that it does not “exculpate the defendant from the crime for which he is charged,” as required by prong (1) of Hackett, supra. Since two individuals murdered Moore, and Perrin was a known associate of appellant, Perrin’s inculpatory statement does not appear to necessarily exculpate appellant. However, since we have not been provided with relevant trial transcripts, we are simply unable to determine exactly what Perrin allegedly told Attorney Griffin. Thus, meaningful review is effectively precluded and we are unable to find that the trial court abused its discretion or committed an error of law by refusing to allow Griffin’s testimony into evidence.

Appellant’s final contention is that the trial court erred in denying a defense motion to produce all Philadelphia Police Department daily activity sheets. However, as noted by the trial court, it did order that all daily activity sheets be turned over to the defense and later found that the district attorney had complied with the court’s Order. (Slip Op., Greenspan, J., 10/11/94, p. 6.) In his brief, appellant offers absolutely no evidence to the contrary, beyond the bald assertion that he did not receive all activity sheets. Hence, appellant’s final claim fails.

Based on the foregoing, we affirm the May 16, 1994 judgment of sentence imposing a term of life imprisonment and consecutive lesser sentences.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2502(a).

      . Id., § 903.

      . Id., § 6106.

      . Id., § 907.

      . Commonwealth v. Revels, -Pa.Super.-, 667 A.2d 423 (unpublished memorandum filed August 7, 1995), petition for allocatur filed, No. 00594 E.Alloc.Dkt. 1995.

      . On this basis, we distinguish Commonwealth v. Oliver, 431 Pa.Super. 1, 635 A.2d 1042 (1993), a case cited by appellant. Oliver explicitly turned on the fact that the appellant therein had no opportunity to cross-examine his co-defendant. Id. at 5, 635 A.2d at 1044. Further, unlike the instant case, the Oliver court found that other evidence of appellant’s guilt was "far from overwhelming.” Id. at 8, 635 A.2d at 1045.

      . As to the “inherently trustworthy” requirement of Hackett, the trial court found as follows:
      Additionally, it is noteworthy in this case that Attorney Griffin's testimony is highly suspect as well. Although Attorney Griffin had been suspended from the practice of law at the time of the trial (N.T. 2/17/94: 6-7), she did represent defendant Revels’ girlfriend who testified to buying one of the guns used in Brian Moore’s murder. N.T. 2/25/94: 88 & 93. Attorney Griffin’s representation of and closeness to defendant Revels’ girlfriend constitutes both a conflict of interest and a bias in favor of Revels. Simply put, an attorney who has been paid in the course of representation should not be permitted to become a witness on behalf of a party to whom the attorney’s client is closely connected.
      (Slip Op., Greenspan, J., 10/11/94, pp. 13-15.)