author: HESTER, Judge:

text:
    608 A.2d 496
    Allen Eugene WAGNER, an Incompetent, By Ray Allen WAGNER, his Guardian v. YORK HOSPITAL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1992.
    Filed April 30, 1992.
    Reargument Denied June 30, 1992.
    Petition for Allowance of Appeal Discontinued Oct. 13, 1992.

      Perry S. Bechtle, Philadelphia, for appellant.
    William A. Atlee, Jr., Lancaster, for appellee.

      Before POPOVICH, HUDOCK and HESTER, JJ.
   HESTER, Judge:

This is an appeal and cross-appeal from judgment entered following the jury’s six and one-half million dollar award in favor of the plaintiff in this medical malpractice action. We affirm.

Ray Allen Wagner, guardian for Allen Eugene Wagner, an incompetent, instituted this medical malpractice action against York Hospital. Until we reach the issue presented in the cross appeal of Mr. Wagner, we will refer to Mr. Wagner as appellee and York Hospital as appellant or the hospital. Although the issues on appeal primarily involve damages, we will briefly review the liability evidence introduced at trial.

On Sunday, November 13, 1988, twenty-three-year-old Allen Wagner and his friend, Glenn Lauchman, met at 7:30 a.m. to get an engine from Glenn’s father that Allen wanted to use to restore an old car. Allen and Glenn drove separate vehicles to the Lauchman residence. On the way, Allen lost control of the pickup truck that he was driving, and it left the road. Allen sustained a head injury in the accident and was semi-conscious when he arrived at the hospital. At that time, Allen was able to move his extremities.

Hospital physicians decided to order a CAT scan of Allen’s head and administered the paralyzing drug Pavulon to prevent him from moving during the procedure. Since Allen was not able to breathe on his own once the drug was administered, he became dependent on a mechanical ventilator connected to him by a flexible tube. After the CAT scan was completed, Allen was moved to the intensive care unit of the hospital. At 11:35 a.m., a chest x-ray was taken in his room using a portable machine. Minutes after the x-ray was finished, Allen’s heart rate began to slow, and the heart rate alarm sounded. A nurse reported the incident to Dr. Thomas R. Scott, who instructed her to increase Allen’s IV fluids; the doctor did not examine Allen. Several minutes later, the heart rate alarm sounded a second time, and the nurse again telephoned Dr. Scott, who then reported to Allen’s room.

Dr. Scott administered a heart stimulant, and when Allen did not respond, the doctor ordered an arterial blood gas test. That test indicated that the level of oxygen and carbon dioxide in the patient’s blood was low. When the nurse withdrew some of Allen’s blood, it was dark in color, which indicated that it was not oxygenated properly. Dr. Scott then checked the patient’s airway and discovered that the ventilator tube was disconnected. Based on the blood tests performed at that time, one of appellee’s expert witnesses, Dr. Jonathan Gottlieb, testified that Allen had been disconnected from his oxygen supply for fifteen to twenty-five minutes. This time frame corresponds to the time that the x-ray, a procedure requiring Allen to be moved, was taken.

Hospital personnel examined the ventilator machine to determine why the ventilator’s disconnect alarms had not sounded when the unit was disconnected. They discovered that the controls that activate the disconnect alarm had not been properly turned to the “on” position. The responsibility for setting the control is with the Department of Respiratory Therapy at York Hospital and was assigned to a specific respiratory therapist on the day in question. At trial, that therapist acknowledged that she had not activated Allen’s alarm. Two expert witnesses for appellee testified that standard medical care required the therapist to be certain she had properly adjusted the disconnect alarms before leaving Allen on the ventilator in the intensive care unit. The hospital did not present contrary expert testimony but argued that the therapist’s actions were reasonable because when she left Allen in the intensive care unit, Dr. Scott and a nurse were in his room.

Allen is now in a persistent vegetative state. The results of the CAT scan performed on Allen when he initially entered the hospital showed that Allen had sustained a fracture of the skull, but there was no significant hemorrhaging. Dr. Robert Zimmerman, a neuroradiologist from New York Hospital, testified that subsequent CAT scans established that Allen’s present condition is the result of destruction of basal ganglia in the brain caused by oxygen deprivation.

Dr. Lawrence Marshall also testified as an expert witness for appellee. He has extensive credentials on the subject of prognosis for recovery of head injury patients and has done extensive research on the effect of oxygen deprivation in patients suffering from head trauma. Dr. Marshall examined the initial CAT scan performed when Allen arrived at the hospital. In his professional opinion, it was an “overwhelming probability” that Allen would have recovered from the traffic accident and become a “productive member of society.” Reproduced Record (“R.R.”) at 206a. He also stated that the likelihood that the head injury alone would have caused Allen’s present, vegetative condition was “zero.” Id.

Following the jury’s award of six and one-half million dollars, appellee filed a request for delay damages, and the parties filed post-trial motions. This appeal followed the imposition of delay damages and the denial of post-trial motions.

We will examine appellant’s first two arguments together, as they are interrelated. Appellant contends that the trial court erred in permitting the jury to view a “day in the life” film of Allen Wagner. It also argues that the trial court erred in instructing the jury that it could award him compensation for pain and suffering as well as for the loss of enjoyment of life. These two arguments are predicated upon its position that since Allen is in a persistent vegetative state, he is totally and completely unaware of his environment and cannot feel pain or suffering or experience loss. It posits that the day in the life film was not an accurate representation of his life since it gave the jury the mistaken impression that Allen is cognizant of his pitiful condition.

Appellant suggests that an individual in a persistent vegetative state may “appear” to feel pain and respond to stimuli, as the film shows, but that those responses are “simply reflexive responses.” Appellant’s brief at 20. It argues that Allen is totally oblivious to his surroundings and is incapable of feeling pain. Thus, appellant continues, the film that shows Allen making responses to stimuli also was misleading. Based on the same factual premise, appellant contends that the jury was incorrectly instructed that Allen is entitled to compensation for pain and suffering and loss of life’s pleasures.

We disagree with the factual premise of appellant’s argument, viz., that the evidence conclusively establishes that Allen does not feel any pain and is both totally unaware and unable to respond to his environment. We also disagree with the legal premise that someone who may not have cognizance of a loss due to a diminished state cause by defendant’s negligence is thereby precluded from recovering damages for the loss caused by defendant.

Appellant makes the following, specific objections to the film:

For example, the film begins with Mr. Wagner’s daily routine. A caregiver removes the braces from his legs saying, “I’m going to take your brace off, give me your leg ... that’s good,” as if Mr. Wagner responded to the request. She then rolls Mr. Wagner onto his side stating, “My hands are cold, huh? That’s what’s waking you,” suggesting that Mr. Wagner can feel the cold. During another portion when Mr. Wagner is receiving physical therapy, the therapist says, “You let me know if it hurts,” suggesting that he can feel pain. Also, while performing therapy on Mr. Wagner’s arms, the therapist says, “Okay ... I get the message,” as if Mr. Wagner had communicated something to her.
Later in the film, Mr. Wagner’s caregivers say “Allen straighten your arm out, we want to take your blood pressure.” They then thank him as if he consciously responded. Later, while Mr. Wagner is being washed, a caregiver suggests that one of his reflexive response movements was done to assist in the washing. Similarly, while the dressings on his tracheotomy tube are being removed and some guttural sounds are audible, and a caregiver says, “Right” and “Alright, it’s out ... no more cold,” as if Mr. Wagner was complaining about the cold.
Portions of the film involving Mr. Wagner’s parents are equally misleading. At one point, Mr. Wagner’s father says, “Look at me Allen. Come on look at me ... come on turn your head over this way ... you can turn it further than this,” suggesting that Mr. Wagner’s head movements are purposeful. Finally, Mrs. Wagner says, “Can you smile for mommy? Come on, you can do it ... I knew you could,” once again, implying a cognitive response.
The Hospital does not contend that this film was staged or that it was intended to inflame the jury. The Hospital also does not dispute that it accurately shows Mr. Wagner's daily routine. This issue centers on the verbal responses to Mr. Wagner’s reflexes, which inappropriately suggest that Mr. Wagner is feeling pain and consciously responding to stimuli. In short, the film misleadingly suggests conditions which simply do not exist.

Appellant’s brief at 21-22 (footnote omitted).

Thus, in the film, when Allen is asked to give the therapist his leg, he performs the requested task. When Allen’s mother asked him to look at her and smile, Allen does. When he is asked to move his leg, Allen responds. We, however, question whether the facts irrefutably established Allen’s total unawareness of his environment. There was evidence supporting the position that Allen has at least some awareness of, and is able to respond to his environment.

For example, appellant’s witnesses testified that Allen attempted to remove his endotracheal tube for a number of days after the disconnect incident. Allen’s mother testified that her son reacts to pain by making a grimace and that when blood is drawn from Allen, he flinches. She also testified, consistent with the actions depicted in the film, that when Allen is asked to put his leg down to assist with medical devices, he will move his leg in the manner requested. She also said that when Allen is looking one way and is asked to turn his head, he will perform that task. Allen also smiles when he sees his mother.

. Similarly, Linda Foster, one of Allen’s therapists, testified that he dislikes therapy and displays his displeasure by sticking out his tongue. Ms. Foster noted that Allen’s face registers anger, and she feels that “[h]e was aware, too— occasionally, I would drop something with a loud bang and he would jump, he would react.” R.R. at 221a.

Arlene Sloane, a registered nurse, testified for appellee as an expert in the . area of rehabilitation. She stated that Allen would benefit from exposure to different environments, especially the outdoors. If Allen were totally unaware of his environment, exposure to different environments could not be beneficial. Indeed, on cross-examination, she was questioned about her opinion on this issue, and the following exchange occurred:

Q. Well, Mrs. Sloane, you are a nurse, and you’ve had a lot of training that you’ve told us about. And you know in a persistent vegetative state there is absolutely no awareness of the surroundings, of the people or the environment of Allen Wagner and people in his unfortunate status. You know that, don’t you?
A. I don’t believe that anybody can say that.
Q. Just answer my question.
[Plaintiff’s counsel]: She is answering your question____
A. No I don’t.
Q. You don’t know that?
A. There are different levels of people in that state. There are people who have a little bit more awareness than others, and there is no—we don’t know. I believe that Allen does respond. He opens his eyes if his mother talks to him or things like that.

R.R. at 269a-271a. Mrs. Sloane also stated that she had read several studies which indicate that people in a persistent vegetative state like Allen’s do respond to certain people at certain times.

Appellant argues that the expert medical testimony was uncontroverted and conclusively established that all the noted reactions are only reflexive and that Allen is incapable of feeling pain or responding to stimuli. We disagree. The quoted portion of Mrs. Sloane’s testimony refutes this suggestion. Furthermore, in making this assertion, appellant relies solely upon four pages of the testimony of Dr. Richard Herman, who was one of appellee’s expert witnesses.

In that portion of the transcript, Dr. Herman was describing a persistent vegetative state in general terms. He noted that patients in a persistent vegetative state are not brain-dead, as they have brain stem functioning. R.R. at 95-96a. Dr. Herman also noted that some patients can have a certain level of awareness:

Q. The patient who is in a persistent vegetative state, Doctor, are there ranges of responses of patients within that group?
A. Oh, yes.
Q. So every patient who has this medical label placed on them is not identical to every other patient who has that—
A. That’s true. Well, there is a window of responses and reflexes and so but basically, they are reflexive, their eyes are open or can be opened. And basically, they are not aware. They are sort of awake, but not aware. But they can have all kinds of modifications and reflexes.

R.R. 95a-96a.

Thus, he said that they are basically unaware but that there are different levels of awareness and responses. The doctor continued, “[T]hey can react to information and there are comments, albeit anecdotal, over the years and it has been summarized recently in a book by Sandel that sensory deprivation is a key issue in survival.” R.R. at 96a-97a. Most significantly, Dr. Herman noted that Allen fixates on objects, while a classic persistent vegetative patient will not.

Thus, the evidence does not irrefutably establish that Allen has absolutely no awareness of his surroundings. No one can know positively what Allen perceives. We also do not view as relevant cases which discuss persistent vegetative patients in the context of a patient’s right to refuse further medical treatment and to terminate their lives. Allen’s right to die is not being addressed in this case.

Furthermore, it is fundamental that a plaintiff is to be compensated fully for all loss sustained as a result of the tortfeasor’s negligence. As legal support for its position on these two issues, appellant relies upon case law providing that the estate of a person who dies instantly is not entitled to an award for pain and suffering because the decedent did not suffer. However, Allen Wagner is not dead. Instead, he is lying in a bed smiling when he sees his mother and grimacing when he undergoes physical therapy. He has suffered unspeakable loss because appellant failed to turn on an alarm. He should be compensated for that loss— regardless whether he can verbalize his awareness of it to others. As the film aided the jury in determining damages, it was admitted properly at trial. Since Allen suffers pain and has suffered and will suffer loss of enjoyment of life, the jury properly was instructed to consider an award of damages for pain and suffering and loss of life’s pleasures.

Appellant next raises two attacks on the jury instructions relating to loss of life’s pleasures. Appellant contends first that the trial court violated our Supreme Court’s holding in Willinger v. Mercy Catholic Medical Center, 482 Pa. 441, 393 A.2d 1188 (1978), when it charged the jury, that Allen was entitled to loss of life’s pleasures. It also posits that the trial court’s instruction was in error because it told the jury to award for loss of life’s pleasures as a distinct element of damages rather than as a component of pain and suffering.

Immediately following the trial court’s discussion of pain and suffering, the court told the jury that Allen is “also entitled to be fairly and adequately compensated for past, present and future loss of his ability to enjoy any of the pleasures of life as a result of defendant’s negligence.” R.R. at 532a-533a.

It is settled that

when reviewing a party’s challenge to a jury instruction, an appellate court will scrutinize the entire instruction against the evidence presented to determine if prejudicial error has occurred. Schecter v. Watkins, 895 Pa.Super. 363, 374, 577 A.2d 585, 591 (1990)....
We will not reverse a trial court’s instruction on the basis of isolated inaccuracies, but will only reverse if the charge as a whole was erroneous and prejudiced the complaining party. Schecter [v. Watkins], supra, 395 Pa.Superior Ct. at 374, 577 A.2d at 591____ “A new trial will be granted where a charge is erroneous in a basic respect and it is impossible to determine the extent to which it was prejudicial.” 62 Pa.Stand.Pract.2d § 48.

Linde Enterprises, Inc. v. Westmoreland Engineering Co., 412 Pa.Super. 67, 72, 602 A.2d 897, 899 (1992).

Initially, we note that in the present case, other than with respect to inclusion of the word “also,” the instruction is identical to Pennsylvania Suggested Standard Civil Jury Instruction 6.011. As to Willinger, we conclude that it is not applicable because in that case, the patient died. The Willinger court held that after a person has died, loss of life’s pleasures is not an element of damages. It is undisputed here that Allen is alive and has suffered loss of life’s pleasures.

In addition, the charge does not give the impression that loss of life’s pleasures is a separate element of damages rather than a component of pain and suffering. The trial court merely used the word “also” as a transitional word to introduce the new concept being presented to the jury. The term did not give the jury the impression that loss of life’s pleasures was a distinct element of damages. As the charge fairly and accurately apprised the jury of the relevant concepts, a new trial is not warranted.

Appellant also argues that the trial court erroneously charged the jury that it could determine Allen’s life expectancy and could award anticipated medical expenses and lost future wages accordingly. The hospital contends that since the evidence fails to support any inference that Allen will live longer than twenty years, the jury should have been instructed that the maximum period for which it could award lost wages and future medical expenses was twenty years.

As to this issue, Dr. Herman testified that considering all the circumstances of the case, Allen could live “a decade, or two or more.” R.R. at 105a. He also stated that given the level of care that he was receiving, Allen could live for a “prolonged” period. Id. at 104a. In rebuttal, one of appellant’s expert witnesses, Dr. Alan VanSant, opined that Allen would live five years. However, another of appellant’s experts, Dr. Warren Wasiewski, admitted that a position paper upon which he relied in his direct testimony states that “patients in a persistent vegetative state may continue to survive for a long period of time, prolonged survival, as long as the artificial provision of nutrition and fluids is continued,” and Dr. Wasiewski acknowledged that such patients are not “terminally ill.” R.R. at 191a. Another medical journal relied upon by Dr. Wasiewski for purposes of his direct testimony states that patients like Allen can survive indefinitely with proper care.

It is axiomatic that where the plaintiff’s evidence, even though contradicted by defense evidence, supports a given charge, the jury must be charged on the concept supported by the plaintiff’s evidence, and the jury’s function is then to determine which evidence to credit. Brill v. Systems Resources, Inc., 405 Pa.Super. 603, 592 A.2d 1377 (1991). In the present case, there was evidence that Allen could live in excess of twenty years. The trial court instructed the jury to determine Allen’s life expectancy based on the evidence, which the court reviewed extensively. R.R. at 523a-524a. There was no error.

The next issue relates to whether the jury should have been allowed to determine whether the hospital should be required to pay for at-home treatment for Allen. On this issue, the hospital presented the testimony of Dr. VanSant, who opined that Allen should be institutionalized. Institutionalization costs less than at-home care. The Wagners, however, wish to bring Allen home and care for him there. Based on the testimony of Dr. VanSant, appellee posits that Allen must “mitigate” his damages by living the rest of his life in an institution rather than at home. However, it is clear that appellee’s evidence supported the Wagners’ position that Allen’s needs will be served better with home care. This evidence included the opinion of a rehabilitative expert, who testified that home care is highly beneficial to persistent vegetative patients.

Also, Dr. Herman testified that it is in the patient’s best interest to be at home, if possible. He stated that in a home environment, the patient has less exposure to infection, which vastly increases life expectancy. Since the hospital was arguing that appropriate personnel would not be available to Allen due to the location of the Wagners’ home, appellee presented two estimates of what it would cost to care for Allen at home. One estimate called for the use of registered and licensed practical nurses, and a second allowed for the use of personal care assistants. The jury was instructed to determine the appropriate measure of future medical expenses based on all the evidence presented. This was proper. The jury could have found that institutional care was the more appropriate measure of damages; it was within its province to do so.

Relying upon Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 266 A.2d 698 (1970), and In re Thirty West Broad Corp., 425 Pa. 36, 227 A.2d 827 (1967), appellant next argues that the trial court erred in allowing certain exhibits, which had been admitted into evidence, to be sent out with the jury for use during deliberations. These cases do not support appellant’s position. In Phoenix, our Supreme Court ruled that it was proper for the trial court to permit papers which set forth plaintiff’s calculation of damages to go out with the jury even though the papers had not been introduced into evidence. The Court approved the procedure because the trial court instructed the jury that the papers were not evidence.

In Thirty West, the evidence that the trial court permitted to go out with the jury was determined to have been admitted improperly, and our Supreme Court thus held that the jury should not have considered, during deliberations, evidence which was improper. Neither case stands for the proposition that properly introduced exhibits may not be sent out with the jury. Instead, the case law provides that the trial court has the discretion to determine which exhibits should be permitted to go out with the jury. Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986).

Appellant makes a secondary argument on this issue. It contends that it was error for the exhibits to go out with the jury without a limiting instruction that the exhibits were not conclusive evidence of appellee’s damages. However, appellant has waived this claim because it failed to request this cautionary instruction when the exhibits went out with the jury. Id.

Appellant next argues that it is entitled to a new trial due to the jury’s exposure to publicity. Specifically, it notes that the local newspapers carried articles which indicated that appellee had made a nine million dollar demand. The hospital observes that the jury is not permitted to be told of specific damages requested by the plaintiff. Relying upon Carter v. United States Steel Corp., 390 Pa.Super. 265, 568 A.2d 646 (1990), petition for allowance of appeal granted, 525 Pa. 630, 578 A.2d 925 (1990), the hospital suggests that this publicity entitles it to a new trial. In Garter, the jury was exposed to improper evidence during the course of trial through information contained in newspaper articles. Some of the jurors admitted that they read those articles and based their verdict upon them. A new trial was awarded.

In the present case, in contrast, there is no indication that the jury was exposed to the information concerning appellee’s demand. During voir dire, appellant insured that potential jurors had not had any previous exposure to the case through newspaper coverage. Immediately after the jury was impaneled, the trial court carefully instructed the jurors to avoid any accounts of the trial that were likely to appear in the newspaper. This admonishment was repeated on several occasions during the course of the trial. There is no evidence that any juror disobeyed the trial court’s admonition concerning newspaper accounts of the trial.

Finally, the precise issue now raised by appellant was not raised at trial. At trial, appellant moved for a mistrial based upon its belief that the information concerning appellee’s nine million dollar settlement demand had been provided to the media by appellee’s counsel. After a brief hearing in chambers with the newspaper reporters, the trial court ascertained that the source of the information was the court’s own pretrial order. The court, therefore, denied appellant’s motion for a mistrial, but it permitted the hospital to renew its motion. No subsequent motion was made.

Appellant’s final complaint concerns the amount of the verdict. “In reviewing a motion for a new trial on the ground that the verdict was excessive, the standard for its grant or denial is within the discretion of the trial court and we will not interfere absent a clear abuse of discretion____ A verdict is not considered excessive unless it is ‘so grossly excessive as to shock our sense of justice.’ ” Gross v. Johns-Manville Corp., 410 Pa.Super. 486, 497, 600 A.2d 558, 564 (1991) (citations omitted). The factors to be considered, together with the particular circumstances of the case, in determining whether a verdict is excessive are:

(1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will affect the plaintiff permanently,
(4) whether the plaintiff can continue with his employment, (5) the size of plaintiffs out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.

Id. 410 Pa.Super. at 497 n. 8, 600 A.2d at 564 n. 8.

In the present case, Allen’s injuries are extremely tragic. They are manifested by objective physical evidence, and they are permanent. Allen cannot continue employment, and his medical expenses have been and will continue to be astronomical. Appellee’s original demand was almost one-third again the amount of the award. Future medical expenses of $200,000 per year with a twenty year life expectancy alone is approximately four million dollars. Applying the various factors, and in light of the circumstances of this case, we affirm the trial court’s determination that “the clear negligence and catastrophic injuries ... justify the verdict.” Trial court opinion at 17-18. The verdict does not shock our sense of justice.

We now consider the issue raised in Mr. Wagner’s cross-appeal. The trial court did not allow the jury to consider past and future medical expenses that were and are to be paid by the Catastrophic Loss Fund created under a repealed subchapter of the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. §§ 1701, et seq. It did so based on former section 1766(e), which provided:

In any action for damages against a tortfeasor arising out of the ownership, maintenance or use of a motor vehicle, a person who is eligible to receive catastrophic loss benefits shall be precluded from pleading, or introducing into evidence the amount of medical and rehabilitative expenses for which such benefits were paid or are payable. This preclusion applies only to catastrophic loss benefits.

Act of February 12, 1984, P.L. 26, No. 11, § 3, as amended Act of February 12, 1984, P.L. 53, No. 12, § 3.

Identical language appeared in another preclusionary provision of the MVFRL, section 1722. That section related to a person who had received first party medical benefits up to $10,000 and provided, “In any action for damages against a tortfeasor arising out of the ownership, maintenance or use of a motor vehicle,” a person who will or had received first party medical benefits under the minimum of required coverage of $10,000 in section 1711 of the MVFRL was “precluded from pleading, or introducing into evidence the amount of medical and rehabilitative expenses for which such benefits were paid or are payable.” Act of February 12, 1984, P.L. 26, No. 11, § 3, as amended Act of February 12, 1984, P.L. 53, No. 12, § 3 (emphasis added).

This preclusionary language tracked the coverage language under sections 1711 of the MVFRL, which provided first party benefit coverage for injuries arising out of the “ownership, maintenance or use of a motor vehicle.” Act of February 12, 1984, P.L. 26, No. 11, § 3, as amended Act of February 12, 1984, P.L. 53, No. 12, § 3.

The issue presented herein is whether the interpretation of the language “arising out of the ownership, maintenance or use of a motor vehicle” as used in sections 1722 and 1766(e) should be given the identical interpretation as it has been given for purposes of section 1711. If so, then the trial court correctly determined that appellant was not permitted to recover for any expenses that have been or will be paid by the CAT fund in this action against the hospital, even though the action was premised upon the hospital’s malpractice and not the traffic accident.

Initially, we review the cases interpreting the relevant language. In Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982), we held that under the Pennsylvania No-fault Motor Vehicle Insurance Act, the predecessor to the MVFRL, basic loss insurance coverage is to be extended to any injuries that are causally connected to the operation, use, or maintenance of the insured vehicle. We determined that the causal connection does not have to be one of proximate cause and that a “but for” relationship is sufficient to satisfy the test. We held as long as there is “some connection” between the operation, use, or maintenance of the insured vehicle and the injuries incurred, basic loss coverage should be provided. Id., 306 Pa.Superior Ct. at 303, 452 A.2d at 737.

We applied the “but for” standard of causation in Varner v. Nationwide Mutual Insurance Co., 340 Pa.Super. 211, 489 A.2d 918 (1985), where we specifically found that injuries resulting from medical malpractice committed during the course of treating injuries from a motor vehicle accident arose out of the use of a motor vehicle. The plaintiff in Varner suffered a fractured skull and left shoulder injury in an automobile accident. He subsequently suffered complications due to medical malpractice, and he sought coverage for his additional loss from his no-fault carrier. We held that the medical malpractice injuries arose out of the use of a motor vehicle since the medical treatment occurred during treatment of injuries directly and immediately received in the accident. See also McKelvey v. Prudential Property and Casualty Insurance Co., 392 Pa.Super. 216, 572 A.2d 769 (1990) (applying the “but for” standard from no-fault act cases to the MVFRL).

Thus, if we conclude that the definition of “arising out of the ownership, maintenance or use” of a vehicle has the same meaning under former section 1766(e) as under former section 1711, then pursuant to Varner, the trial court was correct in refusing to allow the jury to consider any medical bills covered by the CAT fund. We conclude that it should. “Arising out of the use or maintenance of a motor vehicle” should have the same meaning whether one is an injured party seeking CAT fund benefits or a defendant in a tort action requesting a court to preclude the recovery of such benefits received from the CAT fund. The language in sections 1766(e) and 1711 is identical, and section 1766(e) obviously is intended to prevent recovery for bills covered by the fund.

In a treatise published by the Trial Advocacy Foundation of the Pennsylvania Trial Lawyers Association, several leading lawyers concur in this analysis. Although the treatise discusses the relationship between sections 1711 and 1722, since section 1766(e) contained identical language to section 1722, the same rationale applies to section 1766(e):

The definition of “maintenance or use of a motor vehicle” is broad. The same definition should be applied to the preclusion section. Thus, if the victim of a motor vehicle accident caused by a manufacturer’s defect can recover first party benefits, then the tortfeasor need not be the operator of a motor vehicle for the preclusion to apply. If injury is caused by a defective tire that blows out while the plaintiff is using the motor vehicle, the manufacturer could claim the benefit of the preclusion.
On coverage issues, Pennsylvania law would require an interpretation giving the broadest meaning to the phrase. In order to assure consistency, the same broad definition should be applied in determining which tortfeasors have the benefit of the preclusion. Therefore, in many instances, the manufacturer of the defective product, a medically negligent physician, or other defendant not intimately connected with the actual operation of the vehicle would have the benefit of the preclusion.

See J. Ronco, L. Sloane & J. Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law 15:3(a), at p. 185-86 (emphasis added).

Accordingly, we agree with the trial court that a CAT fund recipient may not plead or introduce into evidence the amount of medical expenses which were paid by the CAT fund, regardless of the nature of the claim or identity of the tortfeasor.

Judgment affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    608 A.2d 506
    COMMONWEALTH of Pennsylvania, Appellee, v. Yvonne A. MASON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1992.
    Filed May 4, 1992.

      Gary Lysaght, Harrisburg, for appellant.
    Gloria J. McPherson, Asst. Dist. Atty., Shermansdale, for Com., appellee.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   POPOVICH, Judge:

We are asked to review the judgment of sentence (aggregating 3 to 6 years imprisonment) for possession with intent to deliver a controlled substance (cocaine), delivery of a controlled substance, possession of a small amount of marijuana, possession of drug paraphernalia and tampering with evidence by the appellant, Yvonne A. Mason. We affirm.

Because the appellant does not question the sufficiency of the evidence, the first issue we will address is whether the court erred in denying the appellant’s motion to suppress.

In reviewing such a claim, we must 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. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). If the record supports the factual findings of the suppression court, as well as the legitimacy of the inferences and legal conclusions drawn from those findings, they may not be disturbed on appeal. Commonwealth v. O’Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978). “It is, however, exclusively the province of the suppression court to determine the credibility of witnesses and the weight to be accorded to their testimony.” Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982).

With the preceding in mind, the suppression transcript discloses that on the afternoon of February 16,1989, Trooper David S. Laudermilch was in charge of a drug task force providing surveillance for undercover officer Craig LeCadre.

Officer LeCadre met with Kenneth Mitchem to purchase drugs. Based on prior dealings, the police anticipated that Mitchem would travel to the Pennswood apartments in Lower Paxton Township, Dauphin County.

As officer LeCadre waited in his vehicle, Mitchem was observed entering apartment 404-D. Within 12 minutes, Mitchem exited the apartment and the surveillance team followed him to a location approximately a quarter-mile from the Pennswood apartments before arresting him. Thereafter, Mitchem was advised of his rights prior to disclosing information which led police to believe that additional drugs were present at 404-D.

Because Trooper Laudermilch was concerned that Mitchem’s arrest may have been observed and reported to the occupants of 404-D, he decided not to wait for the completion of the search warrant by a member of the drug task force, Detective Taylor. Instead, Trooper Laudermilch and other officers returned to apartment 404-D. Once there, police knocked on the door for more than two minutes. When no response was forthcoming, Trooper Laudermilch gave the order to “knock and announce” that the police were present. In the absénce of a response, the police forced the door open with a “battering ram”.

After entering the apartment, the police observed the appellant standing in the doorway of the bathroom. She reacted by locking the bathroom door. The police kicked open the door and found the appellant in a crouched position over the toilet.

In the bathroom, the police observed a triple beam scale, a plate on the floor and a silver spoon in the water reservoir of the toilet. These items were left undisturbed, as was a “baggie” containing a white power observed in one of the bedrooms, until Detective Taylor arrived with the warrant. Thereafter, all items were seized.

The motion to suppress was heard immediately before trial. With the close of testimony and argument by counsel, the court concluded that the actions of the police were legitimate and the evidence seized not suppressible. We agree and find the United States Supreme Court decision of Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) instructive.

In Murray, based on information received, federal agents placed the defendant and a co-conspirator under surveillance. The two were observed driving separate vehicles into a warehouse. Within minutes, they relinquished the vehicles to other drivers, who in turn were followed and ultimately arrested. The vehicles were seized and found to contain marijuana.

After receiving this information, several agents converged on the warehouse and forced entry. The structure was unoccupied, but numerous burlap-wrapped bales were observed in plain view and found to contain marijuana. However, the agents left without disturbing the bales, kept the warehouse under surveillance and did not reenter until they had a search warrant.

In securing the warrant, no reference was made to the prior entry, and no reliance was had upon any observations made during the initial entry. When the warrant was issued, approximately 8 hours after the initial entry, federal agents reentered the warehouse and seized several hundred bales of marijuana. This led to the defendants being charged with conspiracy to possess and distribute illegal drugs.

The defendants’ motion to suppress was denied by the District Court. The First Circuit Court of Appeals affirmed and certiorari was granted by the United States Supreme Court to resolve the question, left open in Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), of whether a search pursuant to a warrant was tainted by what the police had seen during an initial unlawful entry— marijuana in plain view.

The Supreme Court, in vacating judgment, relied upon the “independent source doctrine”, a rule of law intended to condone the introduction of evidence acquired in a fashion untainted by illegal evidence-gathering activity. In applying the doctrine, a balancing approach was adhered to; namely:

[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred____ When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in [the] absen[ce of] any error or violation.

Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984) (Citations omitted; emphasis in original).

The Court in Murray extended the policy considerations underlying the “independent source doctrine” to apply to evidence initially discovered during, or as a consequence of, an unlawful search, but later seized as a result of activities untainted by the initial illegality. 487 U.S. at 537, 108 S.Ct. at 2533. And, the Court found that the “inevitable discovery doctrine”, with its distinct requirements, was in reality an extrapolation of the “independent source doctrine”: Since the tainted evidence would be admissible if discovered through an independent source, it should be admissible if it inevitably would have been discovered. 487 U.S. at 539,108 S.Ct. at 2534.

The two principles were applied to the facts in Murray thusly:

Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one
* * * * * *
The independent source doctrine ... rest[s] upon ... the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police’s possession) there is no reason why the independent source doctrine should not apply.

487 U.S. at 541-42, 108 S.Ct. at 2535 (Emphasis in original).

As illustrated by Murray, the ultimate question is whether the search pursuant to a warrant has a genuinely independent source for its information and the seized tangible evidence. In other words, where a warrantless entry in no way contributes to the issuance of a warrant or the discovery of evidence during the lawful search that occurs pursuant to the warrant, there is no error in the court’s refusal to suppress. Id.

The appellant would have us discount the “independent source doctrine” on the grounds that: 1) the police “did not merely ‘secure’ the premises, but in fact conducted a search and seized evidence prior to the warrant’s arrival”; and 2) the Pennsylvania Supreme Court has not recognized the doctrine as an exception to the exclusionary rule under Article I, Section 8 of the Pennsylvania Constitution. Appellant’s Brief at 7.

In responding to the last point first, we find that the “independent source doctrine” is extant and viable in this Commonwealth.

In Commonwealth v. Cephas, 447 Pa. 500, 291 A.2d 106 (1972), an admittedly illegal search of the appellant’s apartment tainted the seizure of various objects and an incriminating statement from an individual arrested at the site. The Cephas Court reversed judgment because there was no “independent source” from which the Commonwealth could have learned of the identity of the individual who provided incriminating information against the appellant other than by “exploiting” the initial illegal search.

Next, in Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), the appellant challenged his identification following an illegal arrest. Even though the arrest was illegal, the Supreme Court validated the subsequent “face-to-face” confrontation between victim and appellant since it had not been “ ‘come at by exploitation of th[e] illegal[ arrest, but] ... instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id., 448 Pa. at 258, 293 A.2d at 33, quoting Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963).

The Court would not assume “but for” the illegal arrest that appellant would have remained at large indefinitely. On the contrary, it held that “[t]he illegal arrest ... merely provided the means for the confrontation with [the victim] more promptly than would otherwise have been the case.” Id.

Similarly, in Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1976), the exclusionary rule did not foreclose the Commonwealth from using the testimony of a witness and a murder weapon in establishing guilt. The Court held that the information was obtained independent of the appellant’s illegal confession. In doing so, the Court wrote:

... where the prosecution can establish that the challenged evidence would have come to its attention from an independent source free of the taint, there is not the type of exploitation of the illegality that requires the imposition of the rule of exclusion. Restated, where the evidence obtained as the result of illegal police activity would have been discovered in the course of a lawfully conducted investigation, no purpose is served in applying the exclusionary rule.
♦ * * * * #
“... it is well established that the fruit of unlawful evidence may nevertheless be admitted if the government demonstrates that the evidence would have come to its attention from an independent source____”

Id., 470 Pa. at 284-85, 368 A.2d at 631-32 (Citations omitted). Accord Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254, 1262 (1989) (“If the prosecution can demonstrate that the allegedly tainted evidence was procured from an independent origin—a means other than the tainted source—the evidence will be admissible. Silverthome Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), and Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) ...”).

Accordingly, the appellant’s argument that the “independent source doctrine” is not viable in this Commonwealth is devoid of merit. Likewise, we hold that the conduct of the police in initially entering the appellant’s apartment was not a “search and seizure” but merely an effort to “secure” the premises until a search warrant had been obtained.

Instantly, the police had observed Mitchem enter the appellant’s apartment for the intended purpose of buying cocaine for undercover agent LeCadre. Upon exiting the premises, Mitchem was arrested approximately ¼k mile from the appellant’s apartment. Once advised of his rights, Mitchem told police that there was “additional cocaine back at 404.” N.T. 9/19-21/89 at 35.

Trooper Laudermilch decided to return to 404-D “for the sole purpose of securing that residence until the search warrant arrived.” Id. at 37. The trooper was “greatly concerned” that word would reach the occupants of 404-D that Mitchem had been arrested (given the location of where they assembled to effectuate the arrest—a distance of xk-mile from Pennswood apartments). As he stated it:

Well, I was greatly concerned that word would carry back from the location [where] we had assembled and arrested Kenny Mitchem at back to [sic] 404-D Amhurst Drive to alert them in fact that something was aloof [sic] in that area. The location in which Kenneth Mitchem was arrested was one of two main access or entranceways into Pennswood Apartment. It was during the early afternoon hours. It is a high traffic location. One of two main ways leading into there. There were obviously numerous people coming and going in that general area. We also as a result of information I received from Mitchem did ascertain that he had obtained the cocaine supplied to Officer LeCadre on that day’s transaction from inside 404-D Amhurst Drive and specifically indicated it was received from the Defendant, Miss Mason. He indicated there were additional quantities present and there were also additional persons present inside that residence at the time making illegal transactions above and beyond an individual by the name of Mr. Whitney being present who was also another occupant of that premise.

N.T; 9/19-21/89 at 36. Additionally, Trooper Laudermilch was “fearful” that additional cocaine may have been exhausted in other sales while he waited for the warrant. Id.

Based on Trooper Laudermilch’s concerns, he and other officers returned to Lower Paxton Township and knocked on the appellant’s apartment “in excess of two minutes” without a response, even though music could be heard from inside the apartment. This prompted Trooper Laudermilch to announce the police’s identity and purpose. Still, there was no response. Consequently, the authorities forced the door open. Once inside, the police escorted two males and the appellant to the living room section of the apartment. Before they were seated, the couch was checked for weapons.

Moreover, a “cursory” examination of the rooms and closets was conducted for the police’s safety. During the course thereof, the police “observed” a baggie in a bedroom containing a white powder, a scale and other drug paraphernalia. None were “seized”. Rather, they remained where found (in “plain view”) until the warrant was delivered by Detective Taylor 1 hour after the apartment was secured.

Viewing the facts in light of the applicable law, we are satisfied that no basis exists for suppressing the evidence seized.

Even though the police observed the triple beam scale, a baggie with a 14-gram “rock” of cocaine, a spoon and plate in “plain view” prior to securement of the warrant, the evidence is admissible because of the “inevitability” of its discovery by the police upon executing the validly issued warrant. The same result obtains with regard to marijuana found in the apartment after the warrant was executed.

In support of our position, we find the ruling in Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990) to be enlightening. In Ariondo, a confidential informant advised police that the appellant was receiving shipments of cocaine via United Parcel Service (UPS). The police alerted UPS to contact them if any packages were addressed to the appellant. This did occur and the police intercepted a package examined by a drug sniffing canine. The dog’s reaction signalled that drugs were present. As a result, a search warrant was obtained and cocaine was seized. Thereafter, the bulk of the drug was removed and 12.6 grams were left in the package and resealed.

Before a warrant could be completed, the police, believing (erroneously) that they would not have enough probable cause to obtain a warrant to search the appellant’s residence until after the package had been received, allowed the package to be delivered. The police, fearful that the appellant would notice that the bulk of the cocaine was missing from the package, waited no more than 10 to 15 minutes after UPS’ delivery before knocking and announcing their identity. A friend of the appellant opened the door and was advised that the police were securing the residence because narcotics were believed to be present. While in the house, the police conducted a limited protective sweep.

After securing the residence, the police obtained a warrant leading to the seizure of contraband. No evidence, however, had been seized during the warrantless sweep of the home.

Albeit the initial entry could not be justified as consensual or the product of exigent circumstances, the Ariondo Court affirmed the denial of the appellant’s motion to suppress; viz.:

... we are satisfied that no basis exists for suppressing the evidence seized from appellant’s home. Any evidence that was found for the first time during the execution of the search warrant was admissible pursuant to the Supreme Court’s holding in Segura v. United States, supra. As for the evidence which had first been observed in plain view following the illegal entry, it was subsequently seized pursuant to a valid search warrant issued independently of observations made during the illegal entry. This evidence would inevitably have been discovered during the subsequent search pursuant to the valid warrant. Therefore, even though appellant’s Fourth Amendment rights were violated by the initial illegal entry by police, suppression of the evidence subsequently seized pursuant to the valid search warrant was not constitutionally required. To hold otherwise would be contrary to the purpose of the exclusionary rule, for it would put the police in a worse position than they would have occupied if no violation had occurred. Murray v. United States, supra [487 U.S.] at 541, 108 S.Ct. at 2535, 101 L.Ed.2d at 483.
******
Instantly, when the search warrant is viewed without reference to the plain view observations which occurred after the illegal entry into appellant’s house, it is abundantly clear that the untainted information in the warrant was more than adequate to establish probable cause for the warrant’s issuance.
******
We conclude, therefore, that the information gained through the initial warrantless entry did not taint the subsequent search which was conducted under authority of a valid search warrant. See: United States v. Salas, supra [879 F.2d 530] at 537-539 [(9th Cir.1989)]. It follows that the suppression court did not err in refusing to suppress the evidence seized from appellant’s home.

397 Pa.Super. at 379-382, 580 A.2d at 349-350 (Citations omitted in part). Accord Commonwealth v. Frank, 413 Pa.Super. 273, 280, 605 A.2d 356, 359 (1992) (“It ... is clear that the fourth amendment does not require suppression of evidence seized from a private residence where, notwithstanding an unlawful entry by police, a warrant subsequently is issued based on independent information known to police before the entry. See Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).”); Commonwealth v. Hernandez, 404 Pa.Super. 151, 590 A.2d 325, 329 (1991) (Evidence seized improperly is admissible where it can be established that it would have been discovered inevitably through an independent and uncorrupted source).

At no time, either pre-trial, post-trial or on appeal, has the appellant questioned the sufficiency of the probable section of the search warrant, nor has she taken steps to insure its inclusion in the official record transmitted to this Court. Both omissions dispense with the need (on waiver grounds) to examine the propriety of the probable cause portion of the warrant. See Pa.R.App.P. 301(a); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983).

However, we would observe that a review of the suppression hearing transcript evinces sufficient probable cause to justify the warranted search of the appellant’s premises. Cf. Commonwealth v. York, 381 Pa.Super. 55, 552 A.2d 1092, 1094 (1989) (“in this jurisdiction, the two-pronged test of Aguilar-Spinelli has been abandoned in favor of the [Illinois v.] Gates[, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ] “totality of circumstances” test in assessing the sufficiency of the probable cause allegation in a search warrant. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).”).

More importantly, consistent with this Court’s rulings in Frank, supra; Hernandez, supra, and Ariondo, supra, all of which look to Murray v. United States, supra, and Segura v. United States, supra, to validate evidence seized on the heels of an illegal entry, we find that the police had sufficient probable cause to obtain a warrant to search the appellant’s apartment upon information received (from surveillance and Mitchem’s statement) evidencing that a crime was being or had been committed and the appellant was the guilty party. Illinois v. Gates, supra; York, supra; Commonwealth v. Bardascino, 210 Pa.Super. 202, 232 A.2d 236, 240 (1967); Commonwealth v. Ametrane, 205 Pa.Super. 567, 210 A.2d 902, 904 (1965).

Regardless of the illegality of the original entry, the triple beam scale, the “baggie” of cocaine and spoon were “observed” in plain view, and, thus, would have been discovered independently of the initial entry via an inventory search following the appellant’s arrest for delivery of a controlled substance. Murray v. United States, supra. Also, the marijuana, being discovered during the execution of the search warrant, was admissible pursuant to the Supreme Court’s holding in Segura v. United States, supra. Accord Melilli, supra; Frank, supra; Ariondo, supra.

The appellant’s second claim attributes the trial court with the commission of error in denying her motion in limine seeking to preclude the prosecution from cross-examining her with regard to prior drug transactions involving Mitchem other than the February 16, 1989, encounter.

At the close of the Commonwealth’s case, counsel for the appellant requested a sidebar:

MR. LYSAGHT: ... I would like a ruling in advance, should Yvonne Mason take the stand and testify on her own behalf, I believe that her testimony would essentially be that on the day in question, February 16th, that Ken Mitchem showed up at her apartment, took some, delivered these drugs, took some of these drugs and left with those drugs. That would be her testimony relative to that. * * * I don’t know whether her testimony is that he brought them on that day, Your Honor, or immediately prior to. I don’t specifically know that would be her testimony, but she would say she got these drugs from Mr. Mitchem and he showed up that day and took some of his or their drugs back. That would be her testimony relative to the delivery charge on the eight ball [cocaine] that Mr. Mitchem delivered to LeCadre.
I would like a ruling limiting the cross-examination by the District Attorney to that transaction alone relative to Yvonne Mason and Mr. Mitchem. In light of the fact that the Commonwealth is not producing Mr. Mitchem as a witness, supported also by the idea, Your Honor, that she has not been charged with any other deliveries and/or conspiracy to deliver any narcotics in this particular case or in any other indictment, but for the charge that we are trying now, Your Honor.
THE COURT: We would not limit the cross-examination to the specific time because if she opens the door with respect to her relationship with this man, the D.A. would then have a right to cross-examine her with respect to any other relationship that they may have. The reason for the limitation in the first place is that the District Attorney indicated they were not producing this witness, and, therefore, we would not permit them to open that can of worms because you did not have an opportunity to cross-examine the witness with respect to the information that they were supporting to offer that ... Mitchem may havé* had, but if your client wants to testify to her relationship with Mr. Mitchem, she can certainly be cross-examined with respect to whether or not that is the extent of her relationship with Mr. Mitchem. And we would permit that on cross-examination if she wants to testify in that regard.

N.T. 9/19-21/89 at 180-181 (Emphasis added).

We agree with the trial court that the Commonwealth would have been permitted to rebut the appellant’s testimony on the issue of delivering a controlled substance to Mitchem (Vs oz. of cocaine, Count II) with evidence of prior dealings between the two. Similar conclusions have been drawn from different fact situations in Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175, 1178-79 (1982) and Commonwealth v. Stakley, 243 Pa.Super. 426, 365 A.2d 1298 (1976).

Where the defendant ... opens the door, to what otherwise might be objectionable testimony, the Commonwealth may probe further to determine the veracity of the trial testimony.

Bey, 294 Pa.Super. at 236, 439 A.2d at 1178 (Citation omitted).

Moreover, the evidence objected to by the appellant would have been admissible under an exception to the prohibition against the introduction of prior crimes to prove the crime with which the defendant was charged where doing so evidenced a common scheme, plan or design, or to establish identity. See Commonwealth v. Donahue, 519 Pa. 532, 549 A.2d 121, 125 (1988). Therefore, we find no merit to the appellant’s second allegation of trial error.

We adopt the trial court’s account and response as a proper disposition of the last of the appellant’s complaints; to-wit:

During the search of Defendant[’]s apartment, the police seized memo paper which had various prices and amounts listed. Some of this same type of paper was found which had been cut into squares and then folded in a particular manner. Printed on one side of the sheets was the corporate logo of the company the Defendant was employed by. During the Commonwealth’s case in chief, on direct examination, a detective testified as follows
Q. Now in your experience in law enforcement do these papers signify anything to you?
A. Yes, they do. I have purchased cocaine in similar papers. They are folded, square pieces of paper, folded in the middle. Several, other folds are then made and I purchased cocaine in square pieces of paper like this in the center. I have also seized cocaine in similar square folded papers. (N.T. 111-112).
The detective was called for rebuttal at which time an offer of proof was requested. The prosecution indicated that the detective would testify that on Jsnuary [sic] 30, 1989, a drug purchase was made from Defendant[’]s apartment complex and that the drugs obtained, were packaged in paper indentical [sic ] to that found in Defendant's apartment. Defendant's] objection to the allowance of such testimony was overruled on the basis that it was proper rebuttal to the sisters’ [sic ] testimony. The detective took the stand and testified along those same lines.
In reference to the detective[’]s testimony in this regard, the jury was instructed as follows:
“let me say that although reference was made to a transfer on January 30th, Defendant is not charged with selling drugs on that occasion. The only reasons that testimony was allowed, was that we thought it had some bearing on the use of these papers that were involved. You heard the testimony from the sister that they used these papers as something for the children in school, and that was the reason why they cut the papers out. She assisted her sister in whatever was going on at school. They drew on the papers, and made designs on these papers.
The Commonwealth’s position is that these papers were used to transfer drugs and the officer testified how they would be folded and the process that you heard him testify to. Your responsibility is to decide whether these papers were involved in the transfer of drugs and that is why we allowed a reference to the 30th. According to the testimony of the officer, there was a transfer involving the same kind of paper in the transaction on the 30th. Not to prove she sold drugs on the 30th, but on the question of whether or not these papers may have been used for that purpose, that is why the information was allowed and that is the only basis on which the jury is allowed to consider, whether or not these papers were used in the manner indicated by the officer, to transfer drugs, or used as indicated by the sister, to make designs for the school children or maybe they were used for both purposes. It is a factual judgment that you have to make, and we are not suggesting to you one way or the other how it was úsed.” (N.T. p. 222-3).

Here, the evidence was intially [sic ] disallowed, since it would raised [sic] the inference that Defendant was involved in other crimes for which she was not charged. When her sister testified as to the use of the confiscated paper, however, it was properly admitted to rebut her testimony. The jury was specifically told why this evidence was admitted and were instructed not [to] consider it for any other purpose. Defendant[’s] claim for relief on this basis must be dismissed. Trial Court Opinion at 7-8. See also Bey, supra; Commonwealth v. McCloughan, 279 Pa.Super. 599, 421 A.2d 361, 363 (1980).

For the reasons herein stated, we deny the appellant’s requested for a new trial.

Judgment of sentence affirmed.

      . As observed by the United States Supreme Court in Segura v. United. States, 468 U.S. 796, 806, 810, 104 S.Ct. 3380, 3386, 3388, 82 L.Ed.2d 599 (1984):
      Different interests are implicated by a seizure than by a search. A seizure- affects only the person’s possessory interests; a search affects a person's privacy interests. Recognizing the generally less intrusive nature of a seizure ..., the Court has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been held impermissible. ******
      The sanctity of the home is not to be disputed. But the home is sacred in Fourth Amendment terms not primarily because of the occupants’ possessory interests in the premises, but because of their privacy interests in the activities that take place within. ”[T]he Fourth Amendment protects people, not places."
      As we have noted, however, a seizure affects only possessory interests, not privacy interests. Therefore, the heightened protection we accord privacy interests is simply not implicated where a seizure of premises, not a search, is at issue. We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents. * * *

      Here, the agents had abundant probable cause in advance of their entry to believe that there was a criminal drug operation being carried on in petitioners’ apartment____ The agents had maintained surveillance over petitioners for weeks, and had observed petitioners leave the apartment to make sales of cocaine. Wholly apart from observations made during that extended surveillance, [a co-defendant] had told agents after his arrest ..., that the petitioners had supplied him with cocaine earlier that day, that he had not purchased all of the cocaine offered by Segura, and that Segura probably had more cocaine in the apartment. On the basis of this information, a Magistrate duly issued a search warrant, the validity of which was upheld by both the District Court and the Court of Appeals____ [Citations omitted; emphasis in original]
      Here, the police had the appellant’s apartment under surveillance and witnessed Mitchem enter it for the purpose of buying cocaine for undercover agent LeCadre. When Mitchem exited with drugs, he was arrested and informed police that he had purchased cocaine from the appellant and there was additional cocaine in the appellant’s apartment. This evidence, as in Segura, was sufficient to establish probable cause to justify the issuance of a warrant to search apartment 404-D and arrest the appellant.
      Of interest to this Court is the fact that the appellant has not challenged the probable cause section of the search warrant

      . The prosecution recounted three prior drug deals involving Mitchem and the appellant. Further, the appellant’s counsel argued that the presence of others in the 404-D apartment made it just as likely that Mitchem obtained his drugs from someone other than the appellant.