source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    549 A.2d 195
    COMMONWEALTH of Pennsylvania v. Charles KING, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 28, 1988.
    Filed Oct. 4, 1988.

      Douglas M. Johnson, Assistant Public Defender, College-ville, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Com.,'appellee.
    Before TAMILIA, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellant, Charles King, appeals from judgment of sentence imposed following his conviction of attempted homicide and violation of the Uniform Firearms Act. We affirm.

On December 11, 1986, appellant approached his estranged wife as she returned home from work, grabbed her arm, and asked, “Can’t we settle this out of court?” His wife had separated from him, and had filed for a protective order under the Protection from Abuse Act, 35 P.S. § 10181 et seq. Appellant then produced a revolver, placed it against his wife’s head, and told her not to scream. She broke loose and tried to flee. Appellant then shot his wife in the back. She was able, however, to reach the relative safety of her home, which was less than a city block from where she was shot. Police and an ambulance soon arrived. She identified appellant as her assailant and was taken to the hospital.

Appellant was arrested and charged with attempted murder, violation of the Uniform Firearms Act and related offenses. At trial, appellant’s wife testified against appellant. Her testimony was partially corroborated by two disinterested eyewitnesses and by the doctor who performed emergency surgery on her on the night of the shooting. The jury convicted appellant of attempted murder and violation of the Uniform Firearms Act.

Post-verdict motions were filed, argued, and denied. A pre-sentence investigation report was prepared, and on January 28, 1988, appellant was sentenced to a term of imprisonment of five to ten years imprisonment and a consecutive five year term of probation. This timely appeal followed.

The sole issue raised on appeal is whether trial counsel was ineffective in failing to object to a question asked of an expert witness by the trial court after direct, cross, re-direct, and re-cross examination of the expert witness had been concluded. Appellant contends that counsel was ineffective for failing to object to the following exchange:

BY THE COURT: “Dr. Clement, in your opinion was this patient — did the conduct that resulted in these injuries place this patient in danger of death or serious bodily injury?”
BY DR. CLEMENT: “Yes, Your Honor.”

(N.T. 9/30/87-10/1/87 at 78). Appellant argues:

Until the Court’s intervention, the Commonwealth’s casein-chief with regard to the charges of attempted murder and aggravated assault had gaping holes in that fundamental elements of the offenses had not been established. The defendant concedes the propriety of the Trial Court clearing up confusion, unclear, or indefinite testimony. In the case at bar, however, the evidence was simply not elicited or established by the Commonwealth.
The defendant respectfully submits that the Trial Court crossed that fine line separating judicial clarification from judicial advocacy. The Trial Court’s conduct constituted reversible error. Trial counsel’s failure to object to and preserve this issue had no reasonable basis designed to effectuate defendant’s interest.

The defendant is entitled to a new trial.

(Appellant’s Brief at 6-7). Appellant cites Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924) and Commonwealth v. Britton, 334 Pa.Super. 203, 482 A.2d 1294 (1984), appeal dismissed 509 Pa. 620, 506 A.2d 895 (1986), in support of this argument.

We reject entirely and unequivocally appellant’s cynical and hyper-formalistic characterization of the function of the trial judge and the limits of judicial interrogation. The cases cited by appellant do not support the proposition urged; moreover, appellant’s contention is contrary to the clear and overwhelming weight of authority in this Commonwealth.

A trial judge has a right and sometimes a duty to question witnesses to clarify existing facts and to elicit new facts, though the questioning should not be done in a biased or protracted manner. See Commonwealth v. Brown, 438 Pa. 52, 63, 265 A.2d 101, 107 (1970); Commonwealth v. Horn, 395 Pa. 585, 591, 150 A.2d 872, 875 (1959); Commonwealth v. Watts, 358 Pa. 92, 96, 56 A.2d 81, 83 (1948); Commonwealth v. Green, 315 Pa.Super. 564, 577-78, 462 A.2d 736, 742-43 (1983); Commonwealth v. Knox, 273 Pa.Super. 563, 569, 417 A.2d 1192, 1195 (1980); Commonwealth v. Hodge, 246 Pa.Super. 71, 79, 369 A.2d 815, 819-20 (1977). It is a right which the trial judge must exercise with caution, and with due regard for the common law preference for clarification by adversarial cross-examination, rather than judicial interrogation. See Keating v. Belcher, 384 Pa. 129, 132-33, 119 A.2d 535, 537-38 (1956); Commonwealth v. Britton, supra, 334 Pa.Superior Ct. at 210-211, 482 A.2d at 1297-98; Commonwealth v. Johnson, 312 Pa.Super. 484, 492, 459 A.2d 5, 9 (1983); Commonwealth v. Berklowitz, 133 Pa.Super. 190, 195, 2 A.2d 516, 518 (1938). Particular care must be taken so that the questions do not usurp or unduly encroach upon the fact finding function of the jury by suggesting judicial disbelief of particular testimony or a judicial opinion on one or more issues for or against one side or the other. See Commonwealth v. Hammer, 508 Pa. 88, 100-08, 494 A.2d 1054, 1060-64 (1985); Commonwealth v. Laws, 474 Pa. 318, 325-27, 378 A.2d 812, 815-16 (1977); Commonwealth v. Bulter, 448 Pa. 128, 133-36, 291 A.2d 89, 92-93 (1972); Pratt v. Stein, 298 Pa.Super. 92, 121-24, 444 A.2d 674, 687-91 (1982); cf Commonwealth v. Berrigan, 369 Pa.Super. 145, 178, 535 A.2d 91, 108 (1987) (Tamilia, J., dissenting; Cavanaugh and Kelly, JJ., join); id., 369 Pa.Superior Ct. at 180, 535 A.2d at 109 (Kelly, J., dissenting).

Nonetheless, “[a] courtroom is a court of justice and not just a battleground for the tilting of attorneys or a testing of their wits and oratory, — to so limit it would often jeopardize or defeat justice.” Keating v. Belcher, supra, 384 Pa. at 132, 119 A.2d at 537. It is the purpose of a criminal trial to ascertain the truth, and it is the business of the trial judge to see that that end is obtained. Commonwealth v. Seabrook, 475 Pa. 38, 47, 379 A.2d 564, 568 (1977). Thus, it is proper for the trial court to ask questions about facts which did not appear from either counsel’s examination of the witness. See Commonwealth v. Hammer, supra, 508 Pa. at 100, 494 A.2d at 1060 (1985); Commonwealth v. Seabrook, supra, 475 Pa. at 47, 379 A.2d at 568. Indeed, the trial court may go so far as to recall a witness to supply an omission of proof as to a material issue. See Commonwealth v. Myma, supra, 123 A. at 487; Commonwealth v. Britton, supra, 334 Pa.Superior Ct. at 210-211, 482 A.2d at 1297-98; Commonwealth v. Miller, 234 Pa.Super. 146, 154, 339 A.2d 573, 577-78 (1975), affirmed 469 Pa. 24, 364 A.2d 886 (1976).

Appellant’s argument suggests that when the truth lies hidden behind the door of an inadvertently unasked question, a trial judge, who sees the light of truth shining through the cracks around the frame of such a door, is barred from opening the door for the jury with a question from the bench, except when there is “confusion or uncertainty” regarding the witness’ testimony. The foregoing authorities, including' both Myma and Britton which appellant cited, clearly establish the absence of such a restriction.

Here, the trial court asked the medical expert a single question to assist the jury in applying an applicable legal standard to the expert medical testimony presented, i.e. to have the doctor answer directly whether in his expert opinion the wound, which he had already described in medical terms, involved a danger of death or serious injury to the victim. Such limited and unbiased questioning was clearly within the sound discretion of the trial court to conduct.

Counsel was not ineffective in failing to raise a meritless objection to the exchange challenged here on appeal. Cf. Commonwealth v. Johnson, 355 Pa.Super. 123, 139-44, 512 A.2d 1242, 1251-52 (1986) (counsel was not ineffective in failing to object when the trial court permitted counsel to recall to the stand and redirect a witness to correct critical inadvertent omissions from the prior direct examination).

Judgment of sentence is affirmed.

      . We note in passing that appellant's characterization of the case as having gaping holes regarding fundamental elements is not accurate. The victim’s testimony was clearly sufficient by itself to sustain the convictions. Moreover, the medical expert had already explained that the path of the bullet passed within an inch and one-half of her heart and through one lung requiring removal of a portion of the lung, and that although an injury to the heart would have placed her in an "extremely serious condition,” she was in bad enough shape with the injuries she had. (N.T. 9/30/87-10/1/87 at 71). Though we do not dispose of the instant appeal on this ground, we note that the challenged question and answer could reasonably be characterized as being designed to clarify existing testimony rather than supplying omitted testimony.


author: MONTGOMERY, Judge:

text:
    549 A.2d 198
    COMMONWEALTH of Pennsylvania, Appellant, v. Susan Ellen McGARGLE, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 1, 1988.
    Filed Oct. 11, 1988.
    Amy L. Hallenbeck, Assistant District Attorney, Montoursville, for Com., appellant.

      William J. Miele, Williamsport, for appellee.
    Before OLSZEWSKI, MONTGOMERY and HOFFMAN, JJ.
   MONTGOMERY, Judge:

This is a Commonwealth appeal from an order finding Susan MeGargle incompetent to stand trial and dismissing the charges against her. For the reasons below, we affirm in part and reverse in part.

The Commonwealth first contends that the trial court erred in finding appellee incompetent to stand trial. We disagree. Under the Mental Health Act, a person is incompetent to stand trial if she is substantially unable to understand the nature or object of the proceedings against her or to participate and assist in her defense. 50 P.S. § 7402(a). As our Supreme Court stated in Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967), the accused must have sufficient ability to consult with an attorney with a reasonable degree of rational understanding and must have a rational as well as factual understanding of the proceedings. The evidence presented in the instant case was clearly sufficient to support the trial court’s finding of incompetence. Dr. Kostas P. Kratsa testified that Mrs. MeGargle is developmentally disabled and has diminished intellectual functioning much lower than normal. He stated that she did not understand the concepts of criminal charges, sentencing and punishment, nor is she able to understand the functions of the various people involved, i.e., her attorney, the police, the judge and the prosecutor. Dr. Kratsa’s opinion was that she is incompetent based on mental retardation. He further opined that she is not able to participate in assisting with her defense. This evidence of Mrs. McGargle’s incompetence was uncontradicted. We find this evidence ample to support the trial court’s finding of incompetence. See, Commonwealth v. Davis, 459 Pa. 575, 330 A.2d 847 (1975) (uncontradicted testimony proved appellant’s incompetence to stand trial).

The more difficult question presented in this case is whether the trial court erred in dismissing the charges on the basis that there is a substantial probability that Mrs. McGargle’s incompetence will continue in the foreseeable future. Under the Mental Health Act, a person who is found incompetent to stand trial may not, for that reason alone, be denied pretrial release. 50 P.S. § 7403(d). However, appellee has not been denied pretrial release but has been released on bond. Therefore, this section does not apply. If the person regains competence, but the court is of the opinion that by reason of the passage of time and its effect on the proceedings it would be unjust to resume the prosecution, the court may dismiss the charges. 50 P.S. § 7403(e). Since appellee has not, and in all likelihood will not, regain competence, this section does not apply either. See, Commonwealth v. Hazur, 372 Pa.Super. 306, 539 A.2d 451 (1988). We are not directed to, nor have we been able to find, either statutory or case law which provides for the dismissal of charges where the accused is incompetent and expected to remain so forever, as appears to be the case here. While we concede the pointlessness of reversing the trial court and reinstating charges for which appellee will most likely never stand trial, we are constrained to do so, absent any statutory authority for dismissal.

Insofar as the order adjudicates appellee incompetent, we affirm. That portion of the order dismissing the charges is reversed and the charges are reinstated. Jurisdiction relinquished.

      . The only Commonwealth witness was Michael Hamm, prison release officer, who testified that Mrs. MeGargle reported regularly to him but that she did not appear to understand why she came to see him.


author: OLSZEWSKI, Judge:

text:
    549 A.2d 199
    COMMONWEALTH of Pennsylvania v. Edward D. HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 29, 1988.
    Filed Oct. 14, 1988.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA). On appeal, appellant claims that the PCHA court erred in denying appellant’s petition without a hearing and asserts that his initial PCHA counsel, who filed a “no merit” letter, was ineffective for failing to raise the ineffectiveness of all prior counsel for failing to: (1) challenge the trial court’s permitting the Commonwealth to present evidence concerning appellant’s filing of an alibi notice; (2) challenge the trial court’s denial of appellant’s motion to suppress; (3) challenge the trial court’s precluding appellant from impeaching a Commonwealth witness with preliminary hearing testimony; (4) challenge the trial court’s permitting the Commonwealth to present hearsay testimony; (5) allege prosecutorial misconduct; (6) request a jury instruction concerning Commonwealth witnesses’ prior inconsistent testimony; and (7) raise the trial court’s consideration of appellant’s prior guilty plea in sentencing appellant. For reasons discussed below, we remand for an evidentiary hearing.

The defendant was arrested on or about September 14, 1982, and charged with burglary and related offenses---On September 15, 1983, defendant plead guilty before Judge Guarino to the charge of burglary. He was sentenced to a period of imprisonment of not less than three to no more than eight years. On October 13, 1983, the defendant was permitted to withdraw his guilty plea, and new counsel was appointed to represent him____
On October 16, 1985, trial began before the Honorable Angelo Guarino and a jury. The jury returned a verdict of guilty as to the charges of criminal trespass, burglary and theft. Once again, counsel was permitted to withdraw, and new counsel was appointed to represent the defendant. On April 23, 1986, post-verdict motions were argued and denied. On May 12, 1986, the defendant was sentenced on the charge of burglary to a period of not less than six to no more than twenty years. The remaining charges merged for the purposes of sentencing. The defendant filed a timely motion to reconsider sentence which was heard and denied on May 30, 1986.
On December 1, 1986, the judgment of sentence was affirmed by the Superior Court in a per curiam and unpublished memorandum. (No. 1514 PHL 1986).
On December 30, 1986, the defendant filed a pro se petition for relief under the Post Conviction Hearing Act. New counsel was appointed to represent him in this matter. On September 24, 1987, P.C.H.A. counsel notified this Court, through a “no merit” letter, that he was unable to amend the defendant’s petition, and that he found the issues raised in the defendant’s pro se petition to be frivolous. This Court then undertook its own independent and careful review of the record and applicable law. On October 23, 1987, this Court found the defendant’s issues raised in his pro se petition to be frivolous and discovered no other issues of arguable merit. Accordingly, this Court entered an Order dismissing the defendant’s Petition for Relief. The instant appeal has followed the denial of relief.

Opinion at 2-4.

Appellant then filed an appeal with this Court. Initial PCHA counsel was permitted to withdraw and new PCHA counsel was appointed for purposes of this appeal.

First, appellant claims that the PCHA court erred in dismissing appellant’s PCHA petition without a hearing. In his petition, appellant asserted that prior counsel was ineffective for failing to investigate and prepare a credible Rule 1100 argument, and for failing to articulate the substance of an alibi witness’s testimony. We find, however, that the PCHA court’s determination is supported by evidence of record and is otherwise free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981). Therefore, we adopt the PCHA court’s thorough examination and disposition of these contentions.

Appellant has cloaked his remaining claims in the ineffectiveness of initial PCHA counsel. Because this is the first time that the ineffectiveness of his first PCHA counsel could be raised, there has been no evidentiary hearing below to determine if there was a reasonable basis for counsel’s actions. In this situation, we are required to determine whether that claims have arguable merit before we will remand to the PCHA court for an evidentiary hearing as to the basis for counsel’s actions. See Commonwealth v. Shablin, 362 Pa.Super. 289, 524 A.2d 511 (1987). “When a claim has arguable merit, and there has been no evidentiary hearing below to determine if there was reasonable basis for counsel’s actions, then this Court will remand for an evidentiary hearing.” Shablin, supra, 362 Pa.Superior Ct. at 292, 524 A.2d at 512, citing Commonwealth v. Spotts, 341 Pa.Super. 81, 33, 491 A.2d 132, 134 (1985). Because we find appellant’s final claim to be of arguable merit, we must remand for an evidentiary hearing. In the interest of judicial economy, however, we will first dispose of appellant’s other seven contentions.

First, appellant claims that PCHA counsel was ineffective for failing to assert prior counsels' failure to challenge the trial court’s permitting the Commonwealth to present evidence concerning appellant’s filing of an alibi notice. Specifically, appellant claims that his testimony at trial confirmed that he “abandoned” his alibi defense and, therefore, it was improper for the Commonwealth to present testimony in rebuttal to establish that an alibi notice was filed. Pa.R.Crim.P. 305C(l)(g) provides that:

... if the defendant has filed notice and testifies concerning his presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.

Instantly, appellant’s claim that his testimony established an “abandonment” of the alibi defense is insufficient to preclude impeachment as to the lodging of an alibi notice. Rather, appellant must have formally withdrawn the notice of alibi defense prior to trial. See Commonwealth v. Alicea, 498 Pa. 575, 449 A.2d 1381 (1982). The presentation of evidence to contradict appellant’s testimony is a risk he assumed when he took the stand. See Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175 (1982).

Moreover, the fact that the Commonwealth presented rebuttal testimony, rather than cross-examining appellant, to impeach appellant’s testimony is of no consequence. It is well settled that “[e]vidence is admissible in rebuttal to contradict that offered by a defendant or his witnesses----” Commonwealth v. Mangini, 478 Pa. 147, 161, 386 A.2d 482, 489 (1978), quoting Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975) (citations omitted); Commonwealth v. Koch, 446 Pa. 469, 478, 288 A.2d 791, 795 (1972). Appellant’s claim lacks merit.

Appellant also asserts that all previous counsel was ineffective for failing to challenge the denial of appellant’s motion to suppress an identification made subsequent to appellant’s allegedly illegal arrest. We find that the arresting officer had probable cause to arrest appellant, and therefore, the suppression issue lacks arguable merit.

Testimony elicited at the suppression hearing reveals that an employee at Rentex Corporation reported a break-in and described the perpetrator as a black male wearing a tee shirt, jeans, and a blue hat. Transcript at 19. The officer observed appellant walking two to three blocks from Rentex ten minutes after conversing with the employee. Transcript at 20-21. Because appellant fit the given description, transcript at 25, the officer stopped appellant, searched him, and found a red knife, a pair of scissors, and a small screwdriver in his pockets. The officer took appellant to the scene of the crime where he was identified by the complainant.

This Court’s recent decision in Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987), is instructive in resolving appellant’s contention:

Initially we note that our function as an appellate court reviewing a denial of a motion to suppress is to determine:
[W]hether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.
Commonwealth v. Reddix, 355 Pa.Superior Ct. 514, 518, 513 A.2d 1041, 1043 (1986), quoting Commonwealth v. W.P., 302 Pa.Superior Ct. 66, 69, 448 A.2d 97, 98 (1982). Moreover, when the evidence viewed in this manner supports the factual findings of the suppression court, we can reverse only if there is an error in the legal conclusion drawn from those factual findings. Commonwealth v. Reddix, supra.
Probable cause exists if the facts and circumstances within the knowledge of the police at the time of the arrest, and of which they have reasonably trustworthy information, are sufficient to justify a man of reasonable caution in the belief that a suspect has committed a crime. Commonwealth v. Verdekal, 351 Pa.Superior Ct. 412, 506 A.2d 415 (1986). It is only the probability of criminal activity, and not the certainty of such activity, that is the standard of probable cause. Commonwealth v. Monroe, 356 Pa.Superior Ct. 109, 514 A.2d 167 (1986).

Id. 361 Pa.Super. at 530, 522 A.2d 1157.

Applying this law to the facts of the present case, we find that the trial court properly held that probable cause existed to support the stop and arrest. Within ten minutes of hearing the description of the perpetrator, the arresting officer observed a black male who fit the description near the scene of the crime. “The correlation of the broadcast description with the officer[’s] observations gave rise to probable cause to stop [appellant].” Id. The fact that appellant did not conform in every respect to the description is not fatal to the finding of probable cause. See id. Appellant’s claim of ineffectiveness lacks merit.

Next, appellant claims that prior counsel was ineffective for failing to challenge the trial court’s precluding appellant from impeaching a Commonwealth witness, Thomas Johnson, with preliminary hearing testimony. The underlying issue lacks merit. Mr. Johnson testified at trial that appellant brandished a gun as he fled the Rentex Corporation building. Appellant sought to impeach Mr. Johnson with the fact that he did not mention the gun at appellant’s preliminary hearing.

Quite simply, appellant sought to imply an inconsistency in Mr. Johnson’s testimony when none existed. It is well settled that omissions of facts in prior statements do not render them inconsistent statements that may be used for impeachment purposes at trial. Commonwealth v. Rue, 362 Pa.Super. 470, 476, 524 A.2d 973, 976 (1987), citing Commonwealth v. Hammond, 308 Pa.Super. 139, 454 A.2d 60 (1982). The trial court properly exercised its discretion in limiting cross-examination on this issue. Rue, supra, citing Commonwealth v. Vander Weele, 356 Pa.Super. 152, 514 A.2d 189 (1986); Hammond, supra.

Appellant also asserts that prior counsel was ineffective for failing to challenge the trial court’s permitting the Commonwealth to present hearsay testimony. Specifically, appellant contends that a hearsay objection should have been pursued regarding a police officer’s testimony that he “received a radio call from the Rentex Company, someone breaking in.” Transcript at 99-100. We have repeatedly declared, however, that an out-of-court statement offered to explain the course of conduct of police is not hearsay. Commonwealth v. Carroll, 355 Pa.Super. 569, 572, 513 A.2d 1069, 1071 (1986), citing Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Underwood, 347 Pa.Super. 256, 259, 500 A.2d 820, 822 (1985). Since the challenged statement was offered merely to establish the officer’s course of conduct, appellant’s complaint is without merit.

Next, appellant maintains that counsel was ineffective for failing to allege prosecutorial misconduct as a result of the district attorney’s alleged expression of personal opinion during his summation. Our review of the record does not reveal expression of personal opinion that rises to the level of prosecutorial misconduct requiring reversal. Appellant mistakenly attempts to equate the prosecutor’s statement, “I think the Commonwealth has shown you through the evidence that the defendant was lying ...,” Transcript at 24, with “I think the defendant was lying.” While it may have been more prudent for the prosecutor to refrain from using the first person, we emphasize that not every intemperate remark requires a new trial. Commonwealth v. Stantz, 353 Pa.Super. 95, 104, 509 A.2d 351, 356 (1986), citing Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981). “Reversible error exists only where the cumulative effect of any improper remarks so prejudices the jury as to prevent a fair trial.” Stantz, supra, citing Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968); Youngkin, supra. Appellant has failed to establish that he was prejudiced in any manner by the prosecutor’s closing remarks. We find, in fact, that appellant was not prejudiced by the Commonwealth’s summation. Therefore, this claim is also without merit.

Appellant also urges that counsel was ineffective for failing to raise the failure of trial counsel to request a jury instruction concerning the alleged prior inconsistent testimony of Commonwealth witnesses. Appellant does not delineate in his brief any proof of inconsistent testimony in the record; he merely cites to two excerpts from the record that we assume he claims are evidence of inconsistent testimony. The excerpts, however, do not amount to prior inconsistent testimony that would warrant a jury instruction on the issue. .Transcript at 84-85, 90-91. We note, nonetheless, that the court instructed the jury to “consider the inconsistencies in [a] witness’ testimony or any prior inconsistent statement that that witness might have made____” Transcript at-50-51. This contention is, therefore, frivolous and without merit.

Finally, appellant asserts that prior counsel was ineffective for failing to raise the sentencing court’s consideration of appellant’s prior guilty plea in determining sentence. When imposing sentence, the trial judge stated:

... My sentence will be taking into account who you are, who you have been, what you have done to your members of our society while you continue this criminal activity. You have a bad conduct as a young boy and you have worse conduct as an adult and this is the apex of all of them____ We have tried you on incarceration. We have tried you on probation and parole and you have all the opportunity in the world to rid yourself of the habit that you say is the devil that fans your criminal conduct and you haven't succeeded. So what you need is very close institutionalized overseeing, incarceration they call it. How long, even I don’t know, but I can’t predict when you will be ready. You have given us a sign that you’ll never be ready and I believe that____
And secondly because your attitude is bad. Not only is your behavior but your attitude is. If you can beat a wrong you’ll do your utmost to do it. You had good sound advice even in this case and if you really wanted to rehabilitate yourself you had excellent counsel who advised that you take the negotiated plea and you did plea[d] and then on the hope and on the technicality that you thought you might beat the case you went ahead and tried the case and I gave you — and I permitted you to withdraw your plea on nothing only because you told me that well, you weren’t so sure that is what you wanted to do. So you never owned up to your own sense of responsibility in this case.
So now you must suffer the consequence of all that you have done including what you did in this case____

Transcript at 21-22 (emphasis supplied).

Pennsylvania courts have upheld the constitutional mandate that a plea of not guilty is not a factor that a judge may consider in deciding whether to give a more severe sentence. Commonwealth v. Bethea, 474 Pa. 571, 578, 379 A.2d 102, 105 (1977), quoting Commonwealth v. Staley, 229 Pa.Super. 322, 324, 324 A.2d 393, 395 (1974). In Bethea, our Supreme Court vacated the judgement of sentence and remanded for resentencing based on these remarks by the sentencing court:

... [Ijt’s a great shame, but you are going to learn in life that you have a responsibility for your actions, and it is not only your interests that have to be taken into account but it is the interest of the community. This was, as I say, an aggravated crime. As far as I’m concerned, even though it is your first offense I think substantial punishment must be inflicted here. If you had pled guilty, perhaps you were involved, there is no question in my mind, but had you pled guilty it might have shown me the right side of your attitude about this, but you pled not guilty, fought it all the way, and the jury found you guilty, and I’m going to sentence you at this time.

Bethea, supra, 474 Pa. at 578, 379 A.2d at 105-106 (emphasis in original).

We are unable to distinguish the court’s impermissible consideration of appellant’s choice to plead not guilty in Bethea from the court’s statements in that regard in the instant case. The sentencing court explained that part of its reason for sentencing appellant in the aggravated range on the burglary charge was because he chose to withdraw his guilty plea and assert his right to trial by jury. Although we can understand the sentencing court’s frustration with this matter, it was not appropriate to consider appellant’s choice to be tried by jury as a reason for sentence. We are constrained to find, therefore, that based on Bethea, appellant’s claim has arguable merit.

Because prior PCHA counsel has not had the opportunity to explain his failure to raise prior counsel’s failure to pursue this issue, we must remand for an evidentiary hearing to afford prior PCHA counsel the opportunity to explain his failure to pursue this issue only. Shablin, supra.

Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

KELLY, J., concurs in the result.

      . We note that even if probable cause did not exist to stop appellant, the officer lawfully stopped appellant for the purpose of conducting a "limited investigation.”
      This concept is referred to as an "intermediate response” and has been explained as follows.
      A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is not probable cause to make an arrest.... The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary ... it may be the essence of good police work to adopt an intermediate response---- A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time, (citations omitted)

        Commonwealth v. Monroe, supra, 356 Pa.Super. at 115-116, 514 A.2d at 170-171, quoting Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-617 (1972).
      Therefore, under the instant circumstances, we find that the officer had not only the right but the duty to stop appellant. Vinson, supra.


author: BROSKY, Judge:

text:
    549 A.2d 205
    COMMONWEALTH of Pennsylvania, Appellant, v. Lloyd William BELL.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1988.
    Filed Oct. 17, 1988.

      Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellant.
    Robert M. Burkholder, Jr., West Chester, for appellee.
    Before CAVANAUGH, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This is an appeal by the Commonwealth from an order of the Court of Common Pleas, Chester County, dismissing as time barred the charges of statutory rape, indecent assault, corruption of minors and endangering the welfare of children against appellee, Lloyd William Bell. The sole issue before us is whether passage of 42 Pa.C.S.A. § 5554(3) operates to toll periods of limitation which have already commenced. We must conclude that it does and accordingly reverse the order appealed from.

Appellee was charged with rape, statutory rape, indecent assault, corruption of minors and endangering the welfare of children by criminal complaint dated May 21, 1987 in connection with his alleged sexual molestation of his minor daughter. At his preliminary hearing, the Commonwealth introduced the testimony of the victim to establish that appellee had perpetrated the acts underlying his charges dating back to 1980 and continuing until August of 1984. Appellee filed a petition for Writ of Habeas Corpus and Modification of Bail in which he alleged that he could not be prosecuted for the offenses of statutory rape, indecent assault, corruption of minors and endangering the welfare of children as the Commonwealth failed to file a complaint relating to these offenses within the two year statute of limitations prescribed by 42 Pa.C.S.A. Section 5552(a). After a hearing on appellee’s petition, the trial court dismissed the above mentioned charges as time barred. Thus, the only charge which remained viable after the court’s order was the rape charge which carried a five year statute of limitations at the time of the alleged offense. The Commonwealth filed the instant appeal and deferred prosecution of the rape charge against appellee pending the result of the instant appeal.

On appeal, the Commonwealth concedes that prosecution for offenses allegedly committed by appellee prior to September 9, 1983 was time barred in that the two year statute of limitations relating to these offenses expired. However, the Commonwealth contends that the trial court erred in concluding that prosecution for the above mentioned offenses which appellee allegedly committed on or after September 9, 1983 was time barred because the two year statute of limitations applicable to the prosecution of said offenses was tolled on September 8, 1985, the effective date of 42 Pa.C.S.A. § 5554(3), which provides in pertinent part: Except as provided by section 5553(e) (relating to disposition of proceedings within two years), the period of limitation does not run during any time when:

(3) a child is under 18 years of age, where the crime involves injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent.

Thus, the Commonwealth argues that, as of its effective date, section 5554(3) acted to toll the statute of limitations relating to any offense committed by appellee for which prosecution was not already time barred.

In dismissing the charges of statutory rape, indecent assault, corruption of minors and endangering the welfare of minors, the trial court relied upon this court’s reasoning in Commonwealth v. Baysore, 349 Pa.Super. 345, 503 A.2d 33 (1986). The court concluded that section 5554(3) is not retroactive in its application and that therefore prosecution of Appellee’s alleged offenses is time barred regardless of whether the statute of limitations relating to his offenses was running as of the effective date of section 5554(3).

In Baysore, supra, a panel of this court addressed the issue of whether 42 Pa.C.S.A. § 5552(b) should be applied to the prosecution of a rape charge where the underlying rape allegedly was committed prior to the effective date of § 5552(b) and stated that our legislature can extend the statute of limitations for a particular offense by amendment and apply the new period of limitations to crimes committed prior to the amendment for which the previous limitations period had not yet expired.

Furthermore, this court stated that in order for a new statutory period to apply to crimes committed prior to the effective date of the new period, the legislature must specifically provide that the extension is to be applied retroactively and held that the clear language of § 5552(b) does not indicate that our legislature intended that the statute apply retroactively. However, Baysore was subsequently overruled by this court sitting en banc, at least to the extent that it held that the application of § 5552(b) to crimes which occurred prior to the effective date of the extension was a retroactive application, in Commonwealth v. Harvey, 374 Pa.Super. 289, 542 A.2d 1027 (1988). Therefore, Baysore is not controlling as to whether § 5554(3) applies to crimes committed before its effective date.

The instant appeal presents the question of whether § 5554(3) applies to toll the running of a limitations period relating to crimes which were committed, and thus where the period began running prior to its effective date.

After reviewing the language of § 5554(3), it is important to note the inclusion of the following words, “the period of limitation does not run during any time ...” This language indicates the intent of our legislature that § 5554(3) should act to toll the statute of limitations for any crime committed against the person of a child under the age of eighteen until said child reaches the age of eighteen. There is no exclusion for periods of limitations which had started to run prior to the effective date of the tolling provision. The operative effect of this statute is to suspend the period of limitations relating to offenses falling within its provisions until the victims of the offenses reach the age of eighteen. Further, it would have this effect from the time designated for it to take effect.

Thus, as of the effective date of § 5554(3), September 8, 1985, the statute of limitations relating to appellee’s alleged offenses ceased running as the victim of his alleged offenses was below the age of eighteen at this point in time and also at the time prosecution was commenced for these offenses. If the legislature intended that this statute should apply exclusively to limitations periods which begin to run after its effective date, we believe it would have included a provision to that effect in the Act of July 10, 1985, P.L. 193, No. 49, § 1 which enacted 42 Pa.C.S.A. § 5554(3). Given the clear language of § 5554(3) and the absence of such a provision limiting the application of § 5554(3) to causes of action which accrue after the effective date of the statute, it is evident that § 5554(3) applies to the instant case, that the prosecution for statutory rape, indecent assault, corruption of minors and endangering the welfare of minors is not time barred and that therefore, these charges should be reinstated against appellee. A panel of this court recently concluded in similar fashion when confronted with similar issues. The panel indicated that the section at issue would “apply so as to extend the period within which the prosecution is to be commenced” where the period had not yet expired. Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988). Consequently, the order appealed from must be reversed.

Reversed and remanded for reinstatement of these charges and trial thereon.

      . Appellee allegedly began to abuse his daughter from the age of five and continued until she was nine and one-half years old.

      . § 5552(b) extended the statute of limitations for prosecution of rape charges from two years to five years.

      . For example, our legislature included the following provision in the Act of December 20, 1982, P.L. 1409, No. 326 § 403:
      Except as provided in section 404, the amendments to 42 Pa.C.S. Ch. 55 (relating to limitations of time), effected by this act, shall apply only to causes of action which accrue after the effective date of this act.


author: BECK, Judge:

text:
    549 A.2d 208
    HARFORD PENN-CANN SERVICE, INC. v. Gerald P. ZYMBLOSKY and Rita Zymblosky, his Wife, William Jackson and William J. Dempsey. Appeal of William JACKSON and William Dempsey.
    Superior Court of Pennsylvania.
    Submitted June 21, 1988.
    Filed Oct. 17, 1988.

      Matthew Dempsey, Scranton, for appellants.
    Michael M. Goss, Philadelphia, for Harford Penn-Cann, appellee.
    Ralph P. Carey, Scranton, for Zymblosky, appellees.
    Before MONTEMURO, BECK and POPOVICH, JJ.
   BECK, Judge:

Defendants/appellants William Jackson and William Dempsey operate a gas station and truck stop under the name of “Harford 65.” Plaintiff/appellee Harford-Penn Cann Service operates a gas station, restaurant, and truck wash directly across the highway from Harford 65. Appellee filed a complaint contending that dust from Harford 65 was blowing onto appellee’s property, to the detriment of appellee’s business, and asking for equitable relief. The trial court, after a hearing, issued the following order:

NOW TO WIT, this 27th day of July, 1987, this Court enjoins the Defendants and the Additional Defendants, their respective successors or assigns from using the leased premises as a gas station, truck stop, and from conducting any business or operation giving rise to the dust and dirt from their lands to the Plaintiff.
The Sheriff of Susquehanna County is directed to enforce this order, and if necessary, he can seize and impound any vehicles on the Defendant’s land adding to this dust problem.

This timely appeal followed.

Appellants first contend that the trial court erred in its finding of fact that the dust created health problems for appellee’s customers and employees and caused appellee to lose business. Appellants next contend that the trial court erred in its conclusion of law that appellants were liable for creating a continuing nuisance. They claim that, except for one occasion, the dust blowing onto appellee’s property was caused not by their activities but by the activities of defendants Gerald and Rita Zymblosky conducted on an adjacent property. Appellants also contend that, even if caused by their own activities, the dust did not create the significant harm necessary for a finding that a nuisance exists. Finally, appellants claim that the injunction is vague and overly broad, and in addition violates the constitutional rights of persons using the truck stop.

We find that appellant’s first two contentions are merit-less. However, we agree with appellants that the injunction is too broadly drawn. We therefore reverse and remand.

As to appellants’ claim that the trial court erred in finding that the dust created health and business problems to appellee and was a hazard to its customers, we note that where the conclusions of the chancellor in equity are supported by the record, a reviewing court may not substitute its judgment for that of the chancellor. Frowen v. Blank, 493 Pa. 137, 142, 425 A.2d 412, 415 (1981). There was testimony on the record that the dust from appellants’ truck stop prevented some of appellee’s employees from wearing contact lenses; that one employee resorted to wearing a dust mask; that appellee’s machinery, including his gasoline pumps, had to be cleaned and replaced more frequently; that windows in appellee’s restaurant could not be opened; that dust collected on packages of food in appellee’s restaurant that had to be wiped off before the packages were opened; and that business at appellee’s truck wash had fallen off. This is sufficient evidence to support the factual findings of the trial court.

Appellants’ next claim that the trial court erred in finding that it was their activities that caused the dust, rather than the activities of the Zymbloskys on adjacent property, is equally meritless. There is sufficient evidence in the record to support the finding that dust from appellants’ property frequently blows onto appellee’s property. We will not disturb this factual finding of the trial court on appeal.

We also find that the trial court did not err in concluding that the dust problem constituted a nuisance as a matter of law. A nuisance is the invasion of another’s interest in the use and enjoyment of his land. Restatement (Second) of Torts, § 822 (1979). That invasion must cause “significant harm,” which is “harm of importance involving more than slight inconvenience ... [T]here must be a real and appreciable interference with the plaintiff’s use or enjoyment of his land ...” Restatement (Second) of Torts § 821F, comment c (1979). The testimony offered at trial regarding the health problems and lost business created by the dust, if believed, supports the conclusion that appellants created or maintained a nuisance. We will not disturb the credibility determinations of the trial court on appeal.

While the trial court did not err in finding that a nuisance existed, it did err in fashioning a remedy for that nuisance. In reviewing the issuance of an injunction, we determine whether the trial court abused its discretion in fashioning the order. Richard v. Weiser, 329 Pa. 203, 198 A. 29 (1938). We agree with appellants that the injunction issued by the trial court is overly broad and must therefore be reversed.

The injunction prohibits appellants from “using the leased premises as a gas station [or] truck stop”, and from “conducting any business or operation giving rise to the dust and dirt from their lands to [appellee].” This order in effect completely deprives appellants of their livelihood. Before ordering such a drastic remedy, the trial court has an obligation to consider alternate means by which the dust problem may be abated, such as paving over or wetting any dirt surfaces on appellants’ property, or installing appropriate barriers. As our Supreme Court noted in vacating a similarly overbroad injunction prohibiting the operation of a noise-creating industrial plant:

Where the facts and equities call for it, a chancellor is required to give relief by injunction; but such injunction should never go beyond the requirements of the particular case; and under no circumstances should a decree be entered the apparent practical effect of which will be to close an industrial plant, if it is possible to frame another form of decree which will give such relief as the plaintiff is entitled to____ In a case like the present where the annoyance arises from the conduct of a business which is not a nuisance per se, a strong effort should be made to conserve the rights of all the parties; and an important question is, Can the noise by any reasonable means be so moderated as to accord with the degree of quietness the plaintiff has a right to enjoy; and, if it can, by what means?

Collins v. Wayne Iron Works, 227 Pa. 326, 330, 76 A. 24, 25 (1910).

Order reversed and remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Appeal of this interlocutory order is of right pursuant to Pa.R.App.P. 311(a)(4).

      . Because we reverse on this ground, we need not consider appellants’ claim that the provision of the order empowering the sheriff to seize and impound any vehicles adding to the dust problem violates the constitutional rights of truckers whose vehicles might be seized.


author: ROWLEY, Judge: WIEAND, Judge,

text:
    549 A.2d 210
    Angelo JISTARRI, Administrator of the Estate of Adeline Jistarri, Deceased, Appellant, v. Dominic NAPPI, M.D., Frank Mattei, M.D., Ronald Anthony Codario, M.D., Saint Agnes Medical Center, William Mangino, M.D.
    Superior Court of Pennsylvania.
    Argued March 8, 1988.
    Filed Oct. 21, 1988.

      Robert F. Morris, Norristown, for appellant.
    Albert J. Schell, Jr., Philadelphia, for Nappi, appellee.
    Richard A. Kolb, Philadelphia, for Saint Agnes, appellee.
    Charles E. McClafferty, Philadelphia, for Mangino, appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   ROWLEY, Judge:

In this wrongful death and survival action, plaintiff/appellant, Angelo Jistarri, administrator of the estate of his mother, Adeline Jistarri, appeals timely from the judgment entered in favor of defendants/appellees on June 29, 1987.

Appellant instituted the present action, against Doctors Dominic Nappi, Frank Mattei, Ronald Codario, and the Saint Agnes Medical Center (hereinafter “Saint Agnes”). He alleged that Doctors Nappi and Codario had been negligent in their treatment of Mrs. Jistarri and that Saint Agnes, the hospital in which Mrs. Jistarri was treated, was liable on a theory of ostensible or apparent agency. The alleged liability of Dr. Mattei was premised solely on his position as Dr. Nappi’s partner. Saint Agnes subsequently joined Dr. Mangino as an additional defendant.

The facts giving rise to the present action, as alleged by appellant, are that Dr. Mangino, an orthopedic resident, negligently applied a cast to Mrs. Jistarri’s broken wrist without adequate padding, thereby causing an ulcer to develop beneath the cast; Dr. Nappi, an orthopedist, negligently failed to remove the cast and to diagnose the infection; the ulcer allowed a staphylococcus aureus infection to enter Mrs. Jistarri’s bloodstream; and the infection spread to and damaged Mrs. Jistarri’s heart, thereby weakening her and rendering her susceptible to the complications that eventually caused her death.

The case was tried before a jury. Dr. Codario, an internist and the primary physician in charge of the treatment of Mrs. Jistarri’s staph aureus infection, was granted a compulsory nonsuit at the close of the presentation of plaintiff’s case. On September 25, 1986, the jury returned a verdict in favor of the remaining defendants, who are now before us as appellees. Post-trial motions were filed and denied, and judgment was entered in favor of defendants/appellees.

In this appeal appellant contends that the trial court erred in 1) instructing the jury on the standard of care of an orthopedic resident; 2) instructing the jury that a physician does not warrant a cure or guarantee the result of treatment; and 3) denying appellant the right to read certain portions of the deposition of Dr. Codario, an adverse party. For the reasons set forth below, we affirm.

The events at issue herein began on September 13, 1980, when Mrs. Jistarri, who was eighty-five years old, suffered a fall in her home. X-rays taken two days later at Saint Agnes revealed an acute fresh fracture of the left wrist. On September 19, 1980, Dr. Mangino applied a cast to Mrs. Jistarri’s left wrist in the emergency room at St. Agnes. She was told to return to the St. Agnes orthopedic clinic at a later date in order to have the cast checked by Dr. Nappi. On September 23, 1980, Mrs. Jistarri came to the clinic and was examined by Dr. Nappi, who reported no signs of discomfort with the cast. At trial, however, appellant testified that at that time his mother had swollen, purple fingers and was complaining of pain. On September 24, 1980, Mrs. Jistarri was brought to the St. Agnes emergency room complaining of chest pain and was admitted into the care of Dr. Codario. Blood cultures revealed the presence of a staphylococcus aureus infection. On September 29, 1980, the cast was removed, revealing an area of redness with exudate. Several days later an ulcer was found in the same area. A culture taken from the ulcer revealed staph aureus. The infection responded well to treatment, and by mid-November Mrs. Jistarri appeared well enough to leave the hospital. She did not do so, however, owing to the inability of her children to care for her at home. On December 15, 1980, she became ill again. A number of complications developed, and she died on December 27, 1980.

Appellant challenges two aspects of the trial court’s instructions to the jury. To determine whether the trial court erred in instructing the jury, as claimed by appellant, we must read the jury instructions in their entirety. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984); Spearing v. Starcher, 367 Pa.Super. 22, 29-31, 532 A.2d 36, 40 (1987). To constitute reversible error, a jury instruction must be shown to have been not only erroneous, but also harmful to appellant. Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965); Spearing v. Starcher, supra. If a charge is wholly inadequate or unclear, or if it has a tendency to mislead and confuse rather than to clarify issues, a new trial will be granted. Spearing v. Starcher, supra.

Appellant first challenges the trial court’s instruction concerning the standard of care to which Dr. Mangino, an orthopedic resident, should be held. The trial court explained that:

A resident is a licensed physician receiving training in a specialty in a hospital. Now, he was not a fully-trained orthopedist nor was he a general practitioner without any specialized training.
He is, therefore, held to exercise that degree of skill, learning and care normally possessed by an orthopedic resident in the circumstances of Dr. Mangino.
Under this professional standard of care, a physician must also keep informed of the contemporary developments in the medical profession and his specialty and he must use these current skills and knowledge.

N.T., 9/24/86, at 197. Appellant contends that the trial court erred in instructing the jury that Dr. Mangino should be held to exercise the same degree of skill, learning, and care normally possessed by orthopedic residents in the same circumstances. Relying on this Court’s holding in Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982), appellant asserts that an orthopedic resident must be held to the same standard of care as an orthopedic specialist.

In Pratt v. Stein, supra, the defendant/appellant hospital argued on appeal that the trial court had erred in instructing the jury that the hospital’s residents were to be held to the standard of an “ordinary physician.” The basis of the hospital’s objection was that while there had been extensive testimony concerning the standard of care for a specialist, there had been none concerning the standard of care for a nonspecialist. It was noted that the courts of this Commonwealth had never directly addressed the question whether a resident should be held to the standard of a general practitioner or of a specialist. The Court described as “a sound conclusion” the ruling of the United States District Court in Harrigan v. United States, 408 F.Supp. 177 (E.D.Pa.1976), that a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. Pratt v. Stein, 298 Pa.Super. at 157, 444 A.2d at 708. “It belies logic to assert that a resident authorized to practice his specialty on patients requiring and expecting the services of a specialist should, for some inexplicable reason, be judged against the standard used to appraise the reasonableness of a non-specialist’s conduct” Id. (footnote omitted; emphasis added). While agreeing “that the trial judge erred in instructing the jury to use the less exacting standard of care applicable to a non-specialist,” id., we concluded that since the error inured to the benefit of the defendant hospital, a new trial was unnecessary.

In the present case, unlike Pratt v. Stein, the jury was not instructed to use the “less exacting standard of care applicable to a non-specialist.” Such an instruction would clearly have been error under Pratt v. Stein. To the contrary, the trial court in the present case explicitly informed the jury that Dr. Mangino was not a general practitioner without any specialized training. The court explained to the jury exactly what Dr. Mangino was: “a licensed physician receiving training in a specialty in a hospital” (emphasis added). Further, the court went on to say that Dr. Mangino was required to “keep informed of the contemporary developments in the medical profession and his specialty ...” (emphasis added).

Whether a resident should be held to an intermediate standard of care, such as that which the trial court instructed the jury to apply in the present case, is an issue that was not before us in Pratt v. Stein. We conclude that the trial court did not err in instructing the jury to apply to Dr. Mangino a standard of care higher than that for general practitioners but less than that for fully trained orthopedic specialists. Such an instruction recognizes that Dr. Mangino has had more training than a general practitioner but less than a fully trained orthopedist. To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible.

In so holding, we do not deny “the reality ... that the vast majority of the day-to-day treatment which a patient receives is rendered by a resident employed by the hospital,” Pratt v. Stein, 298 Pa.Super. at 157, 444 A.2d at 708, nor do we leave plaintiffs without recourse if a situation arises in which a resident has been given responsibilities that exceed the level of skill and training reasonably to be expected of one who is still learning his or her specialty. The ultimate responsibility for the training and supervision of residents lies with the employing hospital, and it is to the hospital that a plaintiff must turn in such a situation. Accordingly, we hold that the trial court did not err in instructing the jury concerning the standard of care applicable to Dr. Mangino.

Appellant also asserts that the trial court erred in instructing the jury that a physician does not warrant a cure or guarantee the result of his or her treatment. Appellant concedes that the instruction, in and of itself, is a correct statement of the law. See Collins v. Hand, 431 Pa. 378, 383, 246 A.2d 398, 401 (1968) (in absence of a special contract, a physician neither warrants a cure nor guarantees the result of treatment). He argues, however, that as he had not made any claim based on a warranty theory, the trial court’s instruction confused the jury. The relevant portion of the jury instruction is as follows:

Professional negligence, also known as malpractice, consists of a careless or unskilled performance by a physician of the duties imposed upon him by his professional relationship with his patient.
It is also negligence when a physician shows a lack of proper care and performance of a professional act.
However, a physician does not warrant a cure, nor does he guarantee the result of his treatment.

N.T., 9/24/86, at 195-96. When the instruction to which appellant objects is read in context, it is apparent that the trial court did not, as appellant asserts, “introduce a concept which had no place in this case” (Brief for Appellant at 19). Instead, the court gave the jury a piece of information that was necessary if they were fully to understand the concept of negligence. Having read the instructions in their entirety, as we must, we conclude that the trial court did not err in giving the instruction in question.

Appellant’s final issue is whether the trial court erred in denying his request to read portions of the deposition of Dr. Codario. The disputed portions of the deposition are not included in the record that has been certified to this Court. Appellant asserts, however, that in the excluded portions of the deposition, Dr. Codario states repeatedly that in his opinion the staph infection entered Mrs. Jistarri’s bloodstream through the ulcer under her cast.

Dr. Codario’s deposition was taken on July 16, 1985. In a letter dated April 24, 1986, appellant’s counsel informed appellees’ counsel, “in lieu of Answers to Expert Witness Interrogatories,” that he intended to read the deposition of Dr. Codario at trial. After receiving objections to this plan from appellees’ counsel, appellant’s counsel informed them, in a letter dated June 27, 1986, that in light of their objections he now intended to call Dr. Codario as an expert witness at trial, and “in lieu of answers to expert witness interrogatories, kindly refer to Dr. Codario’s signed deposition....”

Trial began on September 18, 1986. At trial appellant’s counsel called Dr. Codario as on cross-examination and informed the court that he intended to offer him as an expert witness in internal medicine and to ask him opinion questions (N.T., 9/18/86, at 127). Appellant’s counsel explained that “I am not offering him at this point, at least, as a witness for the plaintiff [appellant]. He is an adverse party; but he has made admissions, including opinions, that are relevant to this case, and I intend to elicit those” (N.T., 9/18/86, at 129). Counsel for the opposing parties, including Dr. Codario, raised a number of objections: appellant had not listed Dr. Codario as an expert witness, he could not require Dr. Codario to give expert testimony against his will, and he should not be allowed to obtain expert testimony from Dr. Codario while at the same time refusing to offer Dr. Codario as his witness, thereby retaining the advantages that accompany the questioning of a witness as on cross-examination (N.T., 9/18/86, at 128-136). Instead of ruling on opposing counsel’s objections, the trial court asked all parties to provide memoranda of law on the issues that had been raised (N.T., 9/18/86, at 135). Appellant’s counsel proceeded to ask non-opinion questions of Dr. Codario. The next day, appellant’s counsel informed the court that he would read into evidence portions of Dr. Codario’s deposition but that he would not ask opinion questions of Dr. Codario (N.T., 9/19/86, at 4-5). As a result, the trial court did not rule on the objections to appellant’s initial plan to ask opinion questions of Dr. Codario.

However, when appellant’s counsel attempted to read into evidence the portions of the deposition in which Dr. Codario stated that in his opinion the ulcer under Mrs. Jistarri’s cast was the source of her staph infection, opposing counsel again objected. They argued that opinion testimony contained in the deposition was subject to the same objections as had been raised to opinion testimony given on the witness stand, and that, in addition, Dr. Codario’s deposition had been noticed purely as a discovery deposition, Dr. Codario had not been prepared to give expert opinions at the deposition, opposing counsel had not been prepared to cross-examine him as if he were an expert witness, opposing counsel had agreed to the usual stipulations concerning all but the form of the questions, and the disputed portions of the deposition contained hearsay (N.T., 9/22/86, at 11-21). The trial court barred appellant’s counsel from reading the portions of the deposition in which Dr. Codario gave his opinion as to the source of the staph infection, reasoning that these statements constituted substantive evidence against other defendants (N.T., 9/22/86, at 28-37). Appellant’s counsel then read into evidence non-opinion portions of the deposition as substantive evidence in appellant’s case (N.T., 9/22/86, at 33). Appellant’s counsel did not question Dr. Codario on the witness stand concerning his opinion as to the source of the staph infection.

The admissibility of expert testimony is a matter within the sound discretion of the trial court, whose decision will not be reversed absent a clear abuse of that discretion. Pascone v. Thomas Jefferson University, 357 Pa.Super. 524, 529, 516 A.2d 384, 386 (1986), appeal denied, 517 Pa. 320, 536 A.2d 338 (1988). Moreover, we may affirm the decision of the trial court if it is correct on any ground. E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Pascone v. Thomas Jefferson University, supra. We note also that an order refusing to grant a new trial will not be disturbed absent a manifest abuse of discretion or an error of law. Bell v. Western Pennsylvania Hospital, 293 Pa.Super. 37, 42, 437 A.2d 978, 981 (1981).

In its opinion, the trial court explains that appellant was denied the right to read the challenged portions of the deposition because 1) appellant was attempting to introduce an expert opinion without having identified Dr. Codario as an expert and without having furnished a synopsis of his expected testimony, as required by Pa.R.C.P. 4008.5; and 2) an expert witness may not be compelled to give an opinion against his will. Resolution of appellant’s contention that the trial court erred in so holding requires that we examine several of the Rules of Civil Procedure. Appellant relies on Pa.R.C.P. 4020(a)(2) and (5) to support his argument that the trial court erred in refusing to allow the disputed portions of the deposition to be read into evidence. Rule 4020(a)(5), which provides that the deposition of a medical witness, other than a party, may be used at trial for any purpose, regardless of the witness’s availability, is inapplicable in the present case. Although Dr. Codario was eventually granted a nonsuit, he was still a party when appellant sought to introduce portions of his deposition into evidence. Therefore, Rule 4020(a)(5) does not apply. Rule 4020(a)(2), on the other hand, which provides that the deposition of a party may be used by an adverse party for any purpose, is applicable. However, it contains a limitation not acknowledged by appellant: the deposition may be so used only insofar as it is admissible under the rules of evidence. In general, therefore, the test of admissibility of a deposition under Rule 4020(a)(2) is the same as that for the admissibility of like testimony offered by a witness on the stand in open court. Pascone v. Thomas Jefferson University, 357 Pa.Super. at 530, 516 A.2d at 387. Appellant has proffered the deposition testimony of Dr. Codario as that of an expert witness in the field of internal medicine. Therefore, the disputed portions of the deposition, even though they are part of the deposition of a party, must meet the standards to which expert testimony in general is held.

We do not agree with the trial court that appellant failed to give notice of his intention to introduce Dr. Codario’s expert testimony. Rule 4003.5 provides that a party may, through interrogatories, require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to have the expert state, either in answers to the interrogatories or in a separate report, the substance of the facts and opinions to which he or she is expected to testify and a summary of the grounds for each opinion. While the notification procedure chosen by appellant was hardly ideal, we cannot say that appellees were denied notice that Dr. Codario might be called by appellant as an expert witness. They were informed almost five months prior to trial, by the letter of appellant’s counsel dated April 24, 1986, that Dr. Codario would, in effect, be offered as an expert witness and that his opinion testimony would be that which was contained in his deposition. The purpose of Rule 4003.5 is to prevent the. unfairness that would occur if one party were unable to counter the expertise of a surprise witness produced at the last minute by the opposing party. See Clark v. Hoerner, 362 Pa.Super. 588, 598, 525 A.2d 377, 382 (1987). The notice provided by appellant in the present case was sufficient to allow appellees to counter the opinion testimony, in whatever form it might be offered, of Dr. Codario.

The second reason offered by the trial court in support of its ruling is that allowing the disputed portions of the deposition to be read into evidence would be tantamount to compelling Dr. Codario to give an expert opinion against his will. The basis for the trial court’s ruling was our Supreme Court’s holding in Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961). In that case, defendant/appellant Otis sought to call Mr. Geise, an expert retained by plaintiff/appellee Evans, to testify as a witness, both factual and expert, for Otis. Geise had already been examined by Evans and cross-examined by Otis. The trial court recognized the expert’s right not to testify as an expert witness for the adverse party, and the Supreme Court affirmed. Id., 403 Pa. at 27, 168 A.2d at 580.

Appellant suggests several reasons why the rule of Evans v. Otis Elevator Co. should not be applied in the present case. First, he argues that “[i]n the area of medical causation the line between fact and opinion is often times unclear” (Brief for Appellant at 16), and therefore Dr. Codario’s determination of the source of Mrs. Jistarri’s infection could be considered a fact rather than an expert opinion. However, appellant characterized the disputed portions of the deposition as opinion testimony in his arguments to the trial court, and he cannot now argue a different theory to this Court. Moreover, Dr. Donald Kaye, a board-certified specialist in internal medicine and infectious diseases who was called as an expert witness by Doctors Nappi and Mattei, testified that in his opinion there were three possible sites, all equally likely, at which the staph infection could have entered Mrs. Jistarri’s bloodstream: the ulcer; her leg, which had been swollen and tender; and a non-apparent skin lesion (N.T., 9/22/86, at 142-143). Dr. Kaye added that the lungs were a possible but less likely source (N.T., 9/22/86, at 143-44) and that he was unable to say with a reasonable degree of medical certainty where the infection had entered the bloodstream (N.T., 9/22/86, at 158). Dr. Codario’s determination of the source of the infection cannot reasonably be viewed as a matter of fact if that “fact” is disputed by another expert.

Second, appellant points out that Pa.R.C.P. 4011(f), which provided that no discovery would be permitted which would require a deponent, whether or not a party, to give an opinion as an expert witness over his objection, has been rescinded. See Neal by Neal v. Lu, 365 Pa.Super. 464, 470, 530 A.2d 103, 106 (1987). The issue before us, however, is not what can be discovered, but what can be admitted into evidence at trial. As Pa.R.C.P. 4003.1 makes clear, information may properly be sought during discovery even though that information may not be admissible at trial. Therefore, the fact that Dr. Codario could not refuse to give an expert opinion in the course of his deposition does not mean that the portions of his deposition in which expert opinions are expressed must be admitted into evidence.

Finally, appellant suggests that the right to refuse to give expert testimony for the adverse party, which was affirmed in Evans v. Otis Elevator Co., can be claimed only by a non-party expert witness. While the expert witness in that case was indeed a non-party, the holding by its terms is not limited to non-parties, and appellant has not suggested why the holding should be so limited. Moreover, although Dr. Codario was a party to the case at the time that appellant sought to have his deposition admitted into evidence, his position with respect to the excluded portions of the deposition was essentially no different than if he had been a non-party expert who had been asked by appellant to testify concerning the care exercised by the other defendant physicians. As appellant explains in his brief,

[o]ne of the fundamental issues in this case was whether the staph aureus infection entered Mrs. Jistarri's bloodstream through the ulcer which was found under her cast. Defendant Ronald Codario is a board certified specialist in internal medicine and was the primary attending physician in charge of the care and treatment for the systemic infection suffered by Adeline Jistarri. During his pretrial deposition Dr. Codario was questioned repeatedly as to whether he was able to determine the source of the infection. Dr. Codario stated on at least eight occasions in his deposition that the source of the infection was the ulcer under her cast.

(Brief for Appellant at 12; emphasis added.) As this statement makes clear, Dr. Codario treated Mrs. Jistarri after the systemic infection had developed. Appellant does not accuse Dr. Codario of having caused that infection, nor has appellant appealed the grant of a compulsory nonsuit to Dr. Codario. Thus, it is beyond dispute that Dr. Codario’s statements concerning the source of the staph infection, if admitted into evidence at a new trial as requested by appellant, would not address Dr. Codario’s own liability, but rather that of the other defendant physicians.

The question before us, therefore, is not whether a medical expert who is also a defendant may be required to give expert testimony that is relevant to his own allegedly negligent conduct, but whether such a witness may be required to give expert testimony concerning the allegedly negligent conduct of other defendants. We conclude that he may not. If appellant desired to present expert testimony concerning the origin of the staph infection as substantive evidence against Doctors Nappi, Mattei, and Mangino, he was free to retain his own expert witnesses; in fact, appellant retained Dr. Balenszweig, an orthopedic specialist. Given our Supreme Court’s holding in Evans v. Otis Elevator Co., however, appellant was not free to require Dr. Codario to give expert testimony, against his will, against the other defendants. “[T]he private litigant has no more right to compel a citizen to give up the product of his brain, than he has to compel the giving up of material things.” Pennsylvania Company for Insurances, etc., Trustee v. Philadelphia, 262 Pa. 439, 442, 105 A. 630 (1918), cited in Evans v. Otis Elevator Co., supra. Accordingly, we perceive no abuse of discretion in the trial court’s decision to exclude from evidence the portions of Dr. Codario’s deposition in which Dr. Codario stated an opinion concerning the source of the staph infection.

Having examined the record and the arguments advanced by the parties, we conclude that the issues raised by appellant are without merit. Accordingly, we affirm the judgment entered in favor of appellees.

JUDGMENT AFFIRMED.

WIEAND, J., files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting:

I agree with the majority that the trial court correctly instructed the jury (1) on the standard of care for an orthopedic resident and (2) that a physician does not warrant a cure. For the reasons which follow, however, I respectfully dissent from the majority’s determination that the depositions of the defendant physician could not be read to the jury.

With respect to this issue, I would hold that the controlling authority is Pa.R.C.P. 4020(a)(2), which provides as follows:

(a) At the trial, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with any one of the following provisions:
(2) The deposition of a party ... may be used by an adverse party for any purpose.

This rule required that appellant be permitted to use Dr. Codario’s depositions, including the portion wherein he opined that the staph infection had entered the decedent’s blood stream through the ulcer under her cast.

The majority relies upon decisions of the Pennsylvania Supreme Court in Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961) and Pennsylvania Company for Insurances on Lives and Granting Annuities, Trustee v. Phil adelphia, 262 Pa. 439, 105 A. 630 (1918). These decisions do, as the majority correctly observes, hold that a witness cannot be compelled to give expert opinion testimony against his will. In those cases, however, the expert witness was an independent witness and not a party to the action. In the instant case, the testimony being offered by the plaintiff was that of a party defendant. Such testimony was admissible. It was not rendered inadmissible because the defendant, who was also a physician, had expressed a medical opinion.

My research discloses no appellate court decision in this Commonwealth which holds that a physician who is a party cannot be examined about his medical opinion without his consent. The issue, however, was considered at the trial court level in a decision by the Court of Common Pleas of Northampton County in Decker v. Pohlidal, 22 D. & C.2d 631 (1960). There, the trial court rejected the rationale relied upon by the majority in the instant case. It reasoned as follows:

Defense counsel contends that his objections should be sustained on the theory that Doctor Pohlidal cannot be asked by plaintiff to express his expert opinion on any matter. In support of this contention counsel cites the case of Penna. Co. for Ins. on Lives and Granting Annuities v. Philadelphia, 262 Pa. 439, wherein, at pages 441, 442, Justice Simpson stated:
“The process of the courts may always be invoked to require witnesses to appear and testify to any facts within their knowledge; but no private litigant has a right to ask them to go beyond that____ But the private litigant has no more right to compel a citizen to give up the product of his brain, than he has to compel the giving up of material things. In each case it is a matter of bargain, which, as ever, it takes two to make, and to make unconstrained.”
We cannot and do not sustain defendant’s objections on this ground. The foregoing expert witness rule is inapplicable where defendant-doctor, himself an expert, is on trial for malpractice. In such situation no sound distinction can be drawn between questioning defendant-doctor as to fact and questioning him concerning his opinion, since fact and opinion are inextricably intermingled on the fundamental issue as to whether defendant-doctor departed from accepted standards in diagnosing and treating plaintiffs injuries.

Id. at 639-640 (emphasis added). In my judgment, this reasoning is sound.

The courts of other jurisdictions have uniformly adopted similar reasoning in concluding that a plaintiff may question a defendant physician regarding matters which require the expression of medical opinion. See, e.g.: Lawless v. Calaway, 24 Cal.2d 81, 147 P.2d 604 (1944); Abbey v. Jackson, 483 A.2d 330 (D.C.App.1984); Nishi v. Hartwell, 52 Haw. 188, 473 P.2d 116 (1970); Walker v. Distler, 78 Idaho 38, 296 P.2d 452 (1956); State for Use of Miles v. Brainin, 224 Md. 156, 167 A.2d 117, 88 A.L.R.2d 1178 (1961); Dark v. Fetzer, 6 Mich.App. 308, 149 N.W.2d 222 (1967); Anderson v. Florence, 288 Minn. 351, 181 N.W.2d 873 (1970); McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65, 203 N.E.2d 469 (1964); Iverson v. Lancaster, 158 N.W.2d 507 (N.D.1968); Oleksiw v. Weidener, 2 Ohio St.2d 147, 207 N.E.2d 375 (1965); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972); Shurpit v. Brah, 30 Wis.2d 388, 141 N.W.2d 266 (1966). See also: Rogotzki v. Schept, 91 NJ.Super. 135, 219 A.2d 426 (1966) (in malpractice action it is proper in pre-trial discovery for plaintiff to inquire of defendant physicians as to their opinion and the exercise of their judgment).

In my judgment, this is the better view. I am persuaded by the rationale of the New York Court of Appeals in McDermott v. Manhattan Eye, Ear & Throat Hospital, supra, where the Court said:

There is nothing unfair about such a practice. Unlike his counterpart in a criminal prosecution, the defendant in a civil suit has no inherent right to remain silent or, once on the stand, to answer only those inquiries which will have no adverse effect on his case. Rather, he must, if called as a witness, respond to virtually all questions aimed at eliciting information, he may possess relevant to the issues, even though his testimony on such matters might further the plaintiffs case. We cannot agree with the suggestion that it is somehow neither sporting nor consistent with the adversary system to allow a party to prove his case through his opponent’s own testimony (see, e.g., Osborn v. Carey, 24 Idaho 158, 168, 132 P. 967, supra; see, also, Comment, 5 So.Cal.L.Rev. 448, 449-450) but, whatever the merits of this view, we prefer to believe that, in a situation such as the present, “[t]he ultimate requirement that judicial decisions be based on the * * * facts overcomes any detriment which might be suffered by the adversary system”. (Friedenthal, Discovery and Use of an Adverse Party’s Expert Information, 14 Stan.L.Rev. 455, 487; see, also, King, The Adverse Witness Statute and Expert Opinion, 4 Wayne L.Rev. 228, 229.)
Courts are intent upon arriving at just decisions and upon employing properly expedient means to attain such an end. If a defendant in a malpractice action may truthfully testify that his conduct conformed to the standard required, his case is, of course, substantially strengthened [sic] and, if he cannot so testify, the plaintiffs chances of recovery are unquestionably increased. In either case, the objective of the court in doing justice is achieved.
It is true that, in People ex rel. Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223, 72 N.E.2d 165, upon which the courts below and the defendants rely, this court explicitly held that a person may not be compelled to testify and give his opinion as an expert against his will. Our holding in Kraushaar, however, is not dispositive of the issue now before us. In that case, the witness (a real estate appraiser) called to testify as an expert was not a party to the action. Such an independent, disinterested witness, we held, could not be required to testify as an expert. That our decision in Kraushaar was not concerned with the situation where the expert and the defendant are one and the same person is implicit from the very tone of the opinion itself and, more importantly, from the reasoning underlying the decision. That reasoning, although not expressly articulated in the opinion, was relied upon in Buchman v. State, 59 Ind. 1, a case cited with approval in Kraushaar (296 N.Y., at p. 225, 72 N.E.2d, at p. 166). As the Indiana court noted (59 Ind. 1, 6), “ ‘to compel a person to attend [a trial] merely because he is accomplished in a particular science, art, or profession, would subject the same individual to be called upon, in every cause in which any question in his department of knowledge is to be solved. Thus, the most eminent physician might be compelled * * * to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise' ”.
It is quite clear that no such burden or unfairness is occasioned by the practice of compelling a doctor, who is actually a defendant in the malpractice action, to testify as an expert. It is, therefore, not inconsistent to permit the plaintiff to question the defendant as an expert even though we would not accord him the same right with respect to an unwilling witness who is in no way connected with the action. The very inability of a plaintiff in a malpractice action to compel the attendance and testimony of a “disinterested” medical witness underscores the need and importance of allowing such a plaintiff the opportunity of questioning his adversary as an expert.

McDermott v. Manhattan Eye, Ear & Throat Hospital, supra, at 28-29, 255 N.Y.S.2d at 72-73, 203 N.E.2d at 474-475.

It must necessarily follow from this reasoning that the trial court erred when it refused to allow plaintiff to read to the jury the deposition testimony of Dr. Codario, a party defendant. As to Dr. Codario, however, the error was harmless. The receipt of his testimony regarding the entry of the staph infection, as the majority has explained, would not have altered his non-liability, for his treatment of the patient did not commence until after the infection had developed. As to him, the compulsory non-suit was properly entered.

For these reasons, I would reverse and remand for new trial the claims against all defendants except Dr. Codario. As to him, I would affirm.

      . Appellant does not contend, and therefore we do not consider, whether the proper application of a cast to a broken wrist is so basic and non-specialized a procedure that it falls within the standard of care to be expected even of a general practitioner.

      . Appellant makes a similar claim in the present case. He asserts that “[appellant’s] expert witness Dr. Howard Balensweig, was a board-certified orthopedic specialist. There was no testimony as to whether Dr. Mangino failed to comply with some lower standard of care for orthopedic residents” (Brief for Appellant at 11). We are unable to evaluate this claim, as a transcript of Dr. Balensweig’s videotaped testimony has not been included in the record that has been certified to this Court. The responsibility for providing a complete and comprehensive record rests with appellant. Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986).

      . Our research into the law of foreign jurisdictions has revealed a dearth of case law on the standard of care to be applied to a resident. The courts of California have held that a resident who holds himself out as a specialist shall be held to the standard of skill expected of a specialist, even though the defendant physician had completed only one-third of his residency. Valentine v. Kaiser Foundation Hospitals, 194 Cal.App.2d 282, 15 Cal.Rptr. 26 (1961), disapproved on other grounds, Siverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 372 P.2d 97 (1962). See also Reeg v. Shaughnessy, 570 F.2d 309 (10th Cir.1978) (although Oklahoma law apparently holds specialists to a higher standard of care than that required of general practitioners, it would have been improper to hold a general practitioner to the standard of an orthopedic surgeon, inasmuch as he was not board certified in that specialty and had not held himself out as an orthopedist; however, it was proper to hold him to a higher standard of care than that required of a general practitioner, given his additional expertise and training, which included numerous orthopedic operations); Rush v. Akron General Hospital, 171 N.E.2d 378 (Ohio Ct.App.1957) (unreasonable to hold interns, doing emergency work in a hospital, to the same standard of care expected of a physician and surgeon in the general practice of the profession); Oko v. Rogers, 125 Ill.App.3d 720, 81 Ill.Dec. 72, 466 N.E.2d 658 (1984) (not error to apply to a specialist the standard of care required of a general practitioner).

      . Appellant does not allege, and we do not imply, that Saint Agnes should necessarily be held liable on such a theory in the present case.

      . Rivera v. Philadelphia Theological Seminary, 326 Pa.Super. 509, 474 A,2d 605 (1984), modified, 510 Pa. 1, 507 A.2d 1 (1986), cited by appellant, does not held otherwise. The relevant issue in Rivera was whether the rector of the defendant seminary was a managing agent within the meaning of Rule 4020(a)(2).

      . Appellant does not assert that the notice requirements of Rule 4003.5 do not apply to the discovery of opinions of an expert witness who is a party. See Neal by Neal v. Lu, 365 Pa.Super. 464, 470, 530 A.2d 103, 106 (1987), cited by appellant for another proposition.

      . Rule 4003.1 states, in pertinent part, "It is not ground for objection that the information sought [through discovery] will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

      . In Horst v. Shearburn, 87 Montg.Co.L.R. 214 (1966), aff’d, 426 Pa. 439, 233 A.2d 236 (1967), the Court of Common Pleas of Montgomery County ruled that the plaintiff in a malpractice action could not compel the defendant physician to testify as an expert at trial to establish the generally accepted medical practice in the community. The court’s ruling, however, was based primarily on the fact that the plaintiff had presented his own expert witnesses at trial to testify on this point. The court left open the possibility that such testimony from a defendant physician would be proper under other circumstances, stating in dicta that:
      In the case at bar, the plaintiff had three expert medical witnesses, two of whom testified fully as to the medical and surgical procedures of the defendant in relation to the community standards. If the plaintiff had been unable to obtain his own expert witnesses and was faced with a nonsuit, it is possible that the court may well have granted the plaintiffs request to call the defendant as his only expert.

        Horst v. Shearburn, supra at 229.