author: WIEAND, Judge: KELLY, Judge,

text:
    589 A.2d 1112
    COMMONWEALTH of Pennsylvania v. Dennis JUBILEE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 9, 1990.
    Filed March 7, 1991.
    Reargument Denied May 14, 1991.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, KELLY and CERCOME, JJ.
   WIEAND, Judge:

Dennis Jubilee was tried by jury and was found guilty of rape and corruption of a minor in connection with a sexual assault upon his six year old niece. Post-trial motions were denied, and Jubilee was sentenced to serve consecutive terms of imprisonment for not less than ten (10) years nor more than twenty (20) years on the rape conviction and for not less than two and one-half (2V2) years nor more than five (5) years for corrupting a minor. A motion to modify sentence was denied without hearing, and Jubilee appealed. He contends that (1) he was denied his constitutional right to a public trial when the trial court ordered the courtroom locked during jury instructions; (2) the trial court erred in denying defense motions for mistrial following prosecutorial misconduct during closing argument; (3) the trial court committed error when it allowed the prosecution to introduce prior consonant statements of the victim; and (4) the trial court erred when it required appellant’s mother to read to the jury during cross-examination a letter containing references to her son’s sins and use of drugs. We conclude that there is merit in several of these arguments. Therefore, we will reverse and remand for a new trial.

The criminal charges against appellant arose from an incident which occurred in June or July, 1986, while appellant was living at the home of his sister, Lydia Jubilee, and her five children. Late one evening, six year old Keia Jubilee left her bedroom and went downstairs to the living room to watch television. While she had been sitting on the couch, she said, appellant had removed his pants and “jumped” on top of her, forcing his penis “a little bit” into her vagina and causing her to cry. He told her, she said, that he would kill her mother if she reported what he was doing. When appellant heard one of the victim’s sisters moving about upstairs, he got off her, and she ran back upstairs to her bedroom.

A short time later, the child attempted to tell her mother, but her words were ignored. However, in December, 1986, the mother questioned the victim about whether she had been sexually abused by her uncle. The victim then denied twice that she had been abused. Later the same day, however, she related to her mother the incident for which appellant was prosecuted. She also related the details of the assault to two social workers from the Department of Human Services and to a police officer.

At trial, the defense contended that the victim’s mother had forced the victim to make false accusations against appellant so that the mother could extort money from her family. Therefore, the victim was vigorously cross-examined regarding her initial denials that she had been assaulted and was asked whether she had been pressured by her mother to accuse appellant. The victim said that she had been initially reluctant to tell her mother what happened because she feared that appellant would make good on his threat to kill the mother. After the victim had concluded her testimony, the Commonwealth presented the testimony of two social workers and the policeman to whom the victim had reported the assault. These witnesses testified to the victim’s description of the assault, which was generally consistent with the version which she had told her mother.

Prior to charging the jury, the trial court ordered that the courtroom doors be locked to prevent children, who had been present at the trial, from causing a disturbance by running in and out of the courtroom. Defense counsel objected. On appeal, the defendant argues that by closing the courtroom doors the trial court denied him the constitutionally guaranteed right to a public trial. We disagree. The decision of the Superior Court in Commonwealth v. Bullock, 384 Pa.Super. 269, 282-283, 558 A.2d 535, 541-542 (1989) is controlling of this issue. There, the trial court had ordered that spectators not be permitted to enter or leave the courtroom during the jury charge because squeaky courtroom doors would have caused a disturbance. In rejecting the argument that the trial court’s action had denied the defendant a public trial, the Superior Court observed: “Members of the public were free to remain in the courtroom during the court’s charge. Thus, the protections guaranteed by the right to a public trial were not offended____” Commonwealth v. Bullock, supra, 384 Pa.Superior Ct. at 283, 558 A.2d at 542.

“In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made.” Commonwealth v. Williams, 346 Pa.Super. 456, 459, 499 A.2d 1089, 1091 (1985), overruled on other grounds, Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989). See also: Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980); Commonwealth v. Toledo, 365 Pa.Super. 224, 236, 529 A.2d 480, 486 (1987). “Generally, ‘comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.’ ” Commonwealth v. Strong, 522 Pa. 445, 454, 563 A.2d 479, 483 (1989), cert denied, — U.S. —, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990), quoting Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). See also: Commonwealth v. D’Amato, 514 Pa. 471, 490, 526 A.2d 300, 309 (1987); Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986). The initial determination whether the prosecutor’s remarks were unfairly prejudicial rests within the sound discretion of the trial court, and “our inquiry of necessity must turn to whether an abuse of discretion was committed.” Commonwealth v. Strong, supra, citing Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968). See also: Commonwealth v. D'Amato, supra, 514 Pa. at 491, 526 A.2d at 310; Commonwealth v. Ellis, 398 Pa.Super. 538, 560, 561, 581 A.2d 595, 606 (1990) (en banc).

The first portion of the prosecutor’s closing argument to which appellant objected was as follows:

Let’s think about something else. The defense attorney in his opening statement indicated he would present two little girls to say how Keia said to them this is all a lie. He said he would present Tamika and he said he would present Rashanna. Well Rashanna, ladies and gentlemen, never showed up to testify, as far as I can see.
MR. MAAS: Objection, Your Honor.
THE COURT: Sustained.
MS. PERLIS: Rashanna did not testify, and I suggest to you the reason for that. The reason is that with Angela Jubilee and Tamika Jubilee testifying he got two different stories.
MR. MAAS: I object. She was available—
THE COURT: Sustained.
MR. MAAS: —to the Commonwealth.
MS. PERLIS: I suggest that would have been a third, would have been a third story.
I also suggest, ladies and gentlemen—
' MR. MAAS: I object to that. The Commonwealth could have called that witness.

We find no abuse of discretion in the trial court’s denial of a defense motion for a mistrial on the basis of the above quoted remarks of the prosecuting attorney. Where the prosecutor merely challenged the defendant’s failure to produce a witness who allegedly would have provided favorable testimony, the comments were not improper. See: Commonwealth v. Yarris, 519 Pa. 571, 597, 549 A.2d 513, 526 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989); Commonwealth v. Johnson, 457 Pa. 554, 561-562, 327 A.2d 632, 636-637 (1974); Commonwealth v. Womack, 307 Pa.Super. 396, 406, 453 A.2d 642, 647 (1982). In this case, in any event, the trial court sustained objections to the prosecuting attorney’s remarks. The denial of the defense motion for additional relief in the nature of a mistrial was not error.

Later remarks by the prosecuting attorney present a different and more difficult issue. She said:

Furthermore, [the victim] went and talked to a judge once before, and you heard the defense attorney cross-examine her about some minor points that she said differently to the first judge than she did to you. Well, in that entire packet from that first hearing you can assume that all the rest of it was consistent, because if it wasn’t, the defense attorney would have picked it out.
MR. MAAS: Objection, Your Honor.
THE COURT: Sustained.
MS. PERLIS: So, in other words, what she said at the preliminary hearing was consistent with what she said at the trial.
MR. MAAS: Objection, Your Honor.
THE COURT: Overruled.

Appellant argues that by these comments the prosecutor improperly bolstered the victim’s credibility by referring to facts not in evidence.

It is well settled that “[t]he district attorney must limit [her] remarks to facts in evidence and legitimate inferences therefrom.” Commonwealth v. Anderson, 490 Pa. 225, 229, 415 A.2d 887, 888 (1980). See also: Commonwealth v. D’Amato, supra 514 Pa. at 489, 526 A.2d at 309; Commonwealth v. Barren, 501 Pa. 493, 498, 462 A.2d 233, 235 (1983); Commonwealth v. Glass, 486 Pa. 334, 347, 405 A.2d 1236, 1243 (1979). Here, the record of the preliminary hearing was not in evidence. Therefore, it was improper for the prosecuting attorney to suggest to the jury that the victim’s trial testimony was consistent with the testimony which she had given at the preliminary hearing. By this statement the prosecuting attorney attempted improperly to bolster the victim’s credibility by asserting that she had previously told a consistent story. Where, as here, the central issue to be decided by the jury was the credibility of the complaining witness and that witness’s testimony had been attacked by evidence of inconsistent statements which she had made, a reviewing court cannot conclude with certainty that the prosecutor’s improper comments regarding the consistency of the victim’s trial testimony with her preliminary hearing testimony did not influence the jury’s verdict. The prosecuting attorney’s conduct was improper. She could not bolster the testimony of a Commonwealth witness by referring to facts which had not been introduced into evidence at trial.

The law regarding the admissibility of a witness’s prior consistent statements has been summarized by the Supreme Court as follows:

Because such statements are hearsay, their use as a means to rehabilitate the credibility of an impeached witness’ testimony is severely limited; and such statements are admissible only if it is alleged that the witness’ present testimony is recently fabricated or a result of corrupt motives. Commonwealth v. Gaddy, 468 Pa. 303, 317, 362 A.2d 217, 223 (1976). Furthermore, evidence of such statements is “admissible only in rebuttal and then only for the purpose of showing that that which the witness now testifies to has not been recently fabricated”. Commonwealth v. Gaddy, 468 Pa. 303, 316, 362 A.2d 217, 223 (1976), quoting Commonwealth v. Wilson, 394 Pa. 588, 602-03, 148 A.2d 234, 242 (1959), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959). As a further restriction upon admissibility the statement must have been made at a time “before its ultimate effect on the question trying could have been foreseen” Craig v. Craig, 5 Rawles 91, 97-98 (1835). In more recent times this court has interpreted this caveat to mean before “any corrupt motive has arisen” Commonwealth v. Gaddy, supra, 468 Pa. at 317, 362 A.2d at 223 (1976). See also Risbon v. Cottom, 387 Pa. 155, 127 A.2d 101 (1956); Keefer v. Byers, 398 Pa. 447, 159 A.2d 477 (1960); Commonwealth v. Vento, 410 Pa. 350, 189 A.2d 161 (1968).
If one testifies that they did a eertain thing at a given time, they may be challenged that they said something different before. Such is impeachment by a prior contradictory statement. Ordinarily, that one has always said the same thing is subsumed in their testimony and need not be buttressed by evidence of prior consistency, unless that consistency, by allegation of recent fabrication is challenged. When challenged, evidence of prior and continued consistency may be offered. Evidence of prior consistency, absent such challenge is not required and is essentially cumulative and repetitious. To regularly allow testimony of prior consistency may easily .become a device to merely augment the credibility of witnesses by others.

Commonwealth v. Hutchinson, 521 Pa. 482, 487-488, 556 A.2d 370, 372 (1989). See also: Commonwealth v. Gaddy, 468 Pa. 303, 316, 362 A.2d 217, 223 (1976); Commonwealth v. Wilson, 394 Pa. 588, 602-603, 148 A.2d 234, 242 (1959), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959); Commonwealth v. Gore, 262 Pa.Super. 540, 549-550, 396 A.2d 1302, 1306-1307 (1978); Packel and Poulin, Pennsylvania Evidence, § 801.6 (1987). “The admission of such consonant statements is a matter to be decided by the trial judge in the exercise of his discretion in light of the character and degree of impeachment.” Commonwealth v. Gore, supra, 262 Pa.Superior Ct. at 550, 396 A.2d at 1307. See also: Commonwealth v. Cruz, 489 Pa. 559, 566, 414 A.2d 1032, 1036 (1980); Commonwealth v. Sanders, 380 Pa.Super. 78, 104, 551 A.2d 239, 252 (1988).

However, prior consonant statements of a witness are not admissible to bolster the witness’ credibility where the witness has admitted that he or she made prior inconsistent statements. In Commonwealth v. White, 340 Pa. 139, 16 A.2d 407 (1940), the Supreme Court affirmed the exclusion of a prior consistent statement under such circumstances, reasoning as follows:

Here the trial judge’s exclusion of the prior and allegedly consonant statements was entirely right; to have allowed them would not only have represented an unwise exercise of the discretion vested in him in such matters, but would have constituted reversible error. For, as he well states in his opinion for the court below: “The exception of the hearsay rule which permits evidence of such consonant statements to be received under some circumstances rests altogether upon the theory that they support the credit of a witness who has denied that he ever made the inconsistent statement of which proof has been offered. Before such consonant statements can be admissible at all there must be an issue as to whether the witness has in fact made an inconsistent statement or not. Where as in the case of this defendant and his witnesses, the self-contradiction is conceded, it remains as a damaging fact, and is in no sense explained away by the consistent statement. The witness must have been false at one time or the other and it is no restoration of his credit to show that at still other times he has made statements in accordance with his present testimony. No matter how many times the consistent story may have been told, the inconsistent one is not erased. An inquiry to ascertain which of the two different statements has been made most frequently by the witness would furnish no means by which the credit due Ms testimony could be satisfactorily determined.” See Stewart v. People, 28 Mich. 63, 9 Am.Rep. 78; Wig-more on Evidence, 3rd Ed., section 1126.

Id. 340 Pa. at 143-144, 16 A.2d at 409. See also: Risbon v. Cottom, 387 Pa. 155, 163, 127 A.2d 101, 105 (1956); Parnell v. Taylor, 266 Pa.Super. 74, 80-81, 403 A.2d 100, 102-103 (1979); Commonwealth v. Bartell, 184 Pa.Super. 528, 542-543, 136 A.2d 166, 174-175 (1957).

The Commonwealth argues that the holding of the Supreme Court in White has been restricted by language contained in an en banc opinion of the Superior Court in Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988). Therefore, it argues, there is no longer a clear rule excluding prior consonant statements where a prior inconsistent statement has been admitted by the witness. We are unable to accept the Commonwealth’s argument. In the first place, Willis was a plurality opinion in which a majority of the court did not join. That decision, therefore, lacks precedential value. More importantly, the facts in the instant case are on all fours with and cannot be distinguished from those in White. White, therefore, is controlling, and we are bound to follow the Supreme Court’s decision.

Here, the victim admitted that she had initially told her mother that she had not been assaulted. She explained that she had done so because of her fear of appellant. The admission of the statements detailing the assault which the victim made to two social workers and a police officer, therefore, could not properly be offered to deny the fact that the victim had made inconsistent statements. Similarly, the testimony of the two social workers and the policeman did not explain why the victim had given inconsistent statements. Instead, the Commonwealth used these witnesses to provide testimony which was cumulative of the victim’s testimony and thereby intended to bolster the victim’s credibility by demonstrating that she had told a version of events consistent with her trial testimony more often than she told the inconsistent version of events. Such a use of prior consonant statements exceeds the limited purpose for which they are allowed. When the trial court allowed the prior consonant statements for such a purpose, it abused its discretion and committed an error of law.

After the Commonwealth had rested its case, the defense called as its first witness, Sandra Jubilee. She was the mother of appellant and of Lydia Jubilee, the victim’s mother. She was also the grandmother of the victim. Sandra Jubilee testified that the victim’s mother had threatened to bring charges against appellant unless she, Sandra, gave her money. The witness also said that the relationship with her daughter had deteriorated, that her daughter had been constantly harassing her and that her daughter had threatened to ‘"'fix” her through appellant. On cross-examination, the Commonwealth asked Sandra Jubilee about a letter she had written to her daughter prior to trial. When the attorney for the Commonwealth asked the witness to read the letter to the jury, defense counsel objected and the following discussion ensued at sidebar:

THE COURT: That lady has come close to interfering with the administration of justice. She’s totally trying to suborn this trial.
MR. MAAS: Your Honor, she has denied doing that, for one thing, and as far as this note is concerned, and I have no idea what else is in that envelope. But—
MS. PERLIS: I’ll be happy to show it to counsel. I just got it myself.
MR. MAAS: No more than anybody else’s opinion can be introduced as to whether he is guilty or not, to have that note read talking about his sins—
THE COURT: That’s right. And she’s the one talking about he is such a good guy, then she contradicts that by this note. I am going to let it in.
MR. MAAS: I think that is mistrial material.
MS. PERLIS: Absolutely not.
THE COURT: I don’t think so. It is her note she wrote and she testified as to not favoring him and not trying to punish Lydia for bringing this case to court.
MS. PERLIS: Absolutely.
MR. MAAS: Your Honor, as far as requests that she might have made of Lydia, that is one thing. But as to her beliefs as to whether he has sinned, that goes to her opinion as to his guilt. I was unaware she had wrote that or said that, but certainly that is the same thing as putting her on the stand and saying, Do you think he is guilty. It is inadmissible.
THE COURT: I’ll permit it. And I am totally outraged that this lady conducted herself in this manner. This lady, she ought to be fired and brought to trial herself for trying to subvert this trial. I’ll admit it.

When the defense objection was denied, the witness read the contents of her letter into evidence as follows:

A. “Can you find it in your heart to ask the judge to have mercy on Dennis for his sins. Dennis did a lot of wrong while he was on drugs and getting drunk. He is now suffering in ways you cannot believe. He’ll pay for his sins the rest of his life, should he stay in jail for 25 years. I know God is punishing me too for my sins.”

When asked to explain the purpose of her letter, the witness responded as follows:

A. The purpose for delivering that and other material was because I wanted Lydia to see what I really felt in my heart for her, that it was not hate. I wanted to clear myself of having been accused of trying to take her children from her. That is why I gave her a copy of the actual letter that I had written to DHS. That was the reason. I wanted Lydia to know that regardless of what, I loved her, I still cared for her and that I thought that she should have some mercy in her heart.
Q. Miss Jubilee, if I may, I am going to read the second to last sentence on this note. “He’ll pay for his sins the rest of his life, should he stay in jail for 25 years.”
What was the purpose of that line in this note to Lydia Jubilee?
A. The purpose of that line was to make her think of what she was really doing.
Q. So, in other words, the purpose of that line in that note was to convince Lydia to drop the charges; isn’t that true?
A. I had never asked her to drop the charges. The purpose was to make her aware is these things true or is she just trying to punish people.
Q. Ma’am, you never talked to Keia about this, have you?
A. I have not.
Q. You don’t believe Keia and you haven’t even spoken to her, do you?
A. I was told not to approach them.
Q. Ma’am, your purpose in delivering this envelope was to subvert this trial, was it not?
A. No, I would never try to do that.
MS. PERLIS: No further questions.
THE WITNESS: My letter states that I had no—
THE COURT: Any redirect?
THE WITNESS: No authority on not trying to pursuade [sic] or change anybody’s opinion. I wanted my daughter to know that regardless, I loved her. I never tried to hurt her. I never tried to take her children from her. And I believe that that is why she was trying to hurt me, because she thought I wanted to take custody of her children.

Appellant contends that this line of cross-examination was improper because the letter could only be interpreted as an expression of opinion that appellant was in fact guilty. The letter also Implicated appellant in other conduct involving drinking and drug abuse. The Commonwealth argues, on the other hand, that the cross-examination was proper to rebut the inference raised by the witness on direct examination that she believed her daughter had induced the victim to bring false charges against appellant.

It is well settled that “[t]he scope and limits of cross-examination are largely within the discretion of the trial court and the actions pertaining thereto will not be reversed in the absence of a dear abuse of discretion or error of law.” Commonwealth v. Perdue, 387 Pa.Super. 473, 485, 564 A.2d 489, 495 (1989). See also: Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988); Commonwealth v. Fried, 382 Pa.Super. 156, 165, 555 A.2d 119, 123 (1989). Commonwealth v. Green, 525 Pa. 424, 454, 581 A.2d 544, 558-559 (1990). See also: Commonwealth v. Snoke, 525 Pa. 295, 305, 580 A.2d 295, 300 (1990). However,

As a general rule, if is elementary that a party is entitled on cross-examination to bring out every circumstance relating to a fact which an adverse witness is called to prove. Peters v. Shear, 351 Pa. 521, 41 A.2d 556 (1945). In criminal cases, the right of cross-examination extends beyond the subjects testified to in direct testimony and includes the right to examine a witness on any facts tending to refute inferences or deductions arising from matters testified to on direct examination Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647, 88 S.Ct. 2277, 20 L.Ed.2d 1344 (1968); In Kaplan v. Loev, 327 Pa. 465, 194 A. 653 (1937), cert. denied, 302 U.S. 766, 58 S.Ct. 477, 82 L.Ed. 595, we cited 70 CJ.S. 813, 1020 with approval as follows:
As bearing on his credibility, a witness may be cross-examined as to inconsistent acts or conduct generally, acts or conduct inconsistent with Ms testimony, or omissions on his part which tend to discredit Mm.
327 Pa. at 467, 194 A. 653.
‘it would not be proper under the cover of this principle to permit the vehicle of cross-examination to be used to convey to the jury a circumstance highly prejudicial to one of the parties which could not directly be placed before the trier of fact. Such an impropriety in the use of cross-examination should be within the control of the trial judge, in the exercise of his impartial judicial discretion.’

Commonwealth v. Green, supra 525 Pa. at 455, 581 A.2d at 559, quoting Kaplan v. Loev, 327 Pa. 465, 467-468, 194 A. 653, 654-655 (1937), cert. denied, 302 U.S. 766, 58 S.Ct. 477, 82 L.Ed 595 (1938).

This is not a simple issue. There can be no doubt that the statements by appellant’s mother in the letter were damaging to the defense. However, the charges of fabrication made by the witness during direct examination were serious, and the contradictions contained in the letter were relevant to aid the jury in assessing the witness’s credibility. After careful review, therefore, we conclude that the trial court did not abuse its discretion when it allowed the Commonwealth to introduce the contents of the letter.

Nevertheless, because of other errors, a new trial is required.

Reversed and remanded for a new trial. Jurisdiction is not retained.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring.

I agree that the prosecutor committed reversible error in referring to pre-trial testimony that was not introduced at trial to support argument during closing. However, for the reasons set forth in Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988), I would not find that the trial court erred in allowing prior consonant statements of the child witness to be introduced to explain a reason for the child’s prior inconsistent statement, i.e., because the child feared appellant’s threats. Hence, I concur in the result.

      . The following exchange between defense counsel and the trial court occurred immediately prior to the charging of the jury.
      MR. MAAS: Your Honor, one other thing. I would object to locking the doors. This is a public courtroom.
      THE COURT: I don’t want to be disturbed during my charge. I don’t want these kids running in and out.
      MR. MAAS: I understand.

      . The witness was employed by the Philadelphia Court of Common Pleas as a juvenile probation officer.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    589 A.2d 1119
    COMMONWEALTH of Pennsylvania, Appellee, v. Steven L. KLINEDINST, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 12, 1990.
    Filed April 12, 1991.

      Frank C. Arcuri, York, for appellant.
    Christy H. Fawcett, Asst. Dist. Atty., Hanover, for Com., appellee.
    Before CAVANAUGH, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of York County, following appellant’s conviction on two counts of possession of a controlled substance with intent to deliver. On appeal, appellant, Steven Klinedinst, questions whether the search warrant for his home was issued upon probable cause. Appellant also inquires whether the trial judge erred in allowing the prosecutor to comment improperly on incoming phone calls and render her opinion as to the reasons those calls were made. Having reviewed the record and the parties’ briefs, we find that the search warrant in question was based upon probable cause. However, we find that the prosecutor did improperly comment upon certain telephone calls, and the trial judge did in fact err in permitting said comments. Thus, we reverse and remand for a new trial.

The record reveals the search of appellant’s residence was made pursuant to a warrant obtained by Trooper Mervin Hill of the Pennsylvania State Police. On December 23, 1988, Trooper Hill applied for the warrant to search appellant’s residence and submitted the following affidavit of probable cause in support of the warrant application:

1. On 12/18/88, the affiant received a telephone call from Tpr. David Young, Penn. State Police Region II Drug Strike Force, Reading, Penn. Tpr. Young related the following’ information: Tpr. Young interviewed a confidential informant who stated that one Steven KLINEDINST was involved in the trafficking of marihuana and cocaine, and that Steven KLINEDINST lives on Pomraning Rd. in the southern end of York County. The informant stated that Steven KLINEDINST grows huge quantities of marihuana for distribution, and also receives approx. 12-14 ounces of cocaine from Philadelphia area every few weeks for distribution Tpr. David Young’s confidential informant has been inside the residence of Steven L. KLINEDINST and has seen marihuana and cocaine inside the residence. The confidential source also stated that Steven L. KLINEDINST grows the marijuana and then drys the plants in an adjacent barn located across the road from his residence.
2. On 12/14/88, the affiant proceeded to the area of Pomraning R. Chancefort Twp. in the Brogue area. The affiant observed only one residence fitting the description given by the confidential informant. The affiant observed a run down barn across the road from the residence and obtained a Pennsylvania Registration number off of a vehicle parked in front of the residence, Pa.Reg. UEH-857, which is registered to one Steven L. KLINEDINST, RD# 1, Box 283 Brogue, Penna. 17309. The confidential informant also stated there was a foundation laid to the rear of the KLINEDINST property with no building on top. The affiant did observe what appeared to be a cement block foundation to the rear of this property.
3. On 12/16/88, the affiant conducted surveillance on the Steven L. KLINEDINST property, RD1, Brogue, Pa. and observed a Jeep vehicle with Pa. registration MYP-205 which is registered to Dean B. JOHNSON, RD# 1, Box 219, Brogue Penna. 17309.
4. On 12/22/88, the affiant interviewed the same confidential informant which Tpr. David Young was referring to in paragraph 1 and 2 listed above. The informant advised that one of Steven KLINEDINST’s close friend and worker in the marihuana fields is one Dean JOHNSON, also from the Brogue area.. The affiant did not mention DEAN JOHNSON name to the informant, the informant volunteered this information.
5. The confidential informant mentioned in the preceding paragraphs worked for Tpr. Gregory STONE, Penna. State Police, Region III Drug Strike Force in late 1986. As a result of Tpr. STONE working with this same informant, Tpr. STONE arrested and convicted 21 individuals for selling controlled substances in York County.
6. On 12/22/88, Trp. David YOUNG, Region II Strike Force used the same confidential informant mentioned in the preceding paragraphs and as a result of using this informant’s information arrested three (3) individuals for possession with intent to deliver cocaine and confiscated approx. 3 pound of alleged cocaine.
7. In the preceding 48 hours, same confidential informant talked to Dean JOHNSON. Dean JOHNSON advised the informant that Klinedinst at the present time has an ample supply of marihuana and [sic] ready for distribution.
8. The affiant believes this confidential informant to be reliable and truthful. The affiant believes a drug vending operation is being conducted at the residence of Steven L. KLINEDINST, RD# 1, Brogue, Pa. and requests a search warrant.

A search warrant was issued, and, later the same day, a search of appellant’s residence uncovered approximately ninety-five grams of cocaine, six grams of marijuana, a large sum of cash and assorted drug paraphernalia.

Appellant filed a pre-trial motion to suppress evidence which alleged the search warrant was not based upon probable cause. The suppression motion was denied. On August 15 and 16, 1989, a jury trial was conducted and resulted in appellant’s convictions. Post-trial motions were filed and, subsequently, denied. Appellant was then sentenced to three to six years for possessing cocaine with intent to deliver and a concurrent term of six months to two years for possessing marijuana with intent to deliver. This appeal followed.

In this Commonwealth, the standard for evaluating whether probable cause exists is the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1986). The “totality of the circumstances” test requires the issuing magistrate to make a practical, common sense decision whether, given all the circumstances set forth into the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The reviewing court must then make a common sense determination whether the issuing magistrate had a “substantial basis for ... concluding] that probable cause existed.” Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332; Gray, 503 A.2d at 925; Commonwealth v. Edmunds, 526 Pa. 374, - n. 3, 586 A.2d 887, 891 n. 3 (1991); Commonwealth v. Melilli, 521 Pa. 405, 418, 555 A.2d 1254, 1261 (1989); Commonwealth v. Flaherty, 400 Pa.Super. 397, 583 A.2d 1175 (1990); Commonwealth v. Karns, 389 Pa.Super. 58, 61, 566 A.2d 615, 616 (1989), allocatur denied 525 Pa. 632, 578 A.2d 927 (1990).

Appellant contends the information in the affidavit was stale at the time of issuance of the warrant, and, thus, probable cause was not present. Instantly, the reliable informant told the police that he had been inside appellant’s residence and had seen marijuana and cocaine inside. The police then waited for ten (10) days before obtaining a search warrant on the basis of this information, and, thus, contends appellant, the informant’s statement became stale.

Since a search warrant can only issue upon probable cause that exists at the time of issuance, it is necessary to establish the time frame so that the issuing magistrate can insure that the search warrant is not based upon stale information. Commonwealth v. Stamps, 493 Pa. 530, 534-537, 427 A.2d 141, 143-144 (1981); Karns, 566 A.2d at 617; Commonwealth v. Haggerty, 388 Pa.Super. 67, 70, 564 A.2d 1269, 1271 (1989), allocatur denied 525 Pa. 577, 575 A.2d 109 (1990). However, “[m]ere lapse of time between discovery of criminal activity and issuance of the warrant will not necessarily dissipate probable cause; a showing that the criminal activity is likely to have continued up to the time of the issuance of the warrant will render otherwise stale information viable.” Stamps, 427 A.2d at 141 (citations omitted); Karns, 566 A.2d at 617; Haggerty, 564 A.2d at 1272.

Presently, the reliable Informant told police that appellant grows “huge quantities of marihuana for distribution”; that appellant “drys” Ms marijuana plants In a barn adjacent to Ms residence; that appellant receives twelve (12) to fourteen (14) ounces of cocaine from Philadelphia every few weeks for distribution; and that he saw marijuana and cocaine in appellant’s house.

Although the police waited for ten days before acting on this tip, the Information provided by the Informant demonstrates a “fair probability” that criminal activity in the form of marijuana processing was continuing and controlled substances were present on the premises at the time of the issuance of the warrant.

The fact that the police waited ten days before obtaining the warrant does not in and of itself invalidate the warrant. See Commonwealth v. Klimkowicz, 331 Pa.Super. 75, 81, 479 A.2d 1086, 1089 (1984) (five weeks between burglary and execution of search warrant does not automatically invalidate warrant; must look to facts to determine reasonableness of conclusion that information was not stale). In Stamps, supra, the affidavit reported that the informant had been inside appellant’s apartment “within the past 10 days” and had observed the defendant in possession of a large quantity of heroin. The affidavit further revealed possession of large quantities of heroin for sale within fourteen days prior to issuance of the warrant. The Stamps court concluded that “the issuing authority reasonably determined appellant was engaged In a continuing course of illegal conduct and that narcotic drugs were likely to be present in his apartment on the day the warrant was Issued.” Instantly, we reach the same conclusion since the affidavit supports the reasonable conclusion that appellant was engaged in marijuana processing and distribution and street-level distribution of large quantities of cocaine.

In the ease sub judias, the informant told police that appellant was in the business of growing and drying manjuana and distributing large quantities of marijuana and cocaine. A common sense appraisal of this information results in the reasonable conclusion that appellant was involved in an on-going drug production and distribution operation since marijuana neither grows nor drys overnight. Although the informant’s information was ten days old, there was a fair probability that criminal activity was continuing at the time of issuance. Cf. Stamps, supra; Karns, 566 A.2d at 617 (informants’ descriptions of ongoing operation with a large number of marijuana plants sufficient to overcome failure to demonstrate freshness of information); Haggerty, 564 A.2d at 1272 (large quantity of cocaine pointed to a on-going distribution operation conducted over a period of time and currently in progress).

Moreover, aside from the information provided via the informant’s direct observation, within forty-eight (48) hours prior to issuance of the warrant, the informant told police that Dean Johnson, a friend of appellant who aided appellant in marijuana production, told him that appellant possessed an ample supply of marijuana ready for distribution. At the time this information was related to the police, the police knew that Johnson’s automobile had been parked at appellant’s residence several days earlier. Contrary to appellant’s contention, an affidavit which contains hearsay upon hearsay need not be categorically rejected. Rather, “double hearsay” must be evaluated in conjunction with the other information in the affidavit to determine whether the information is reliable. Commonwealth v. Casuccio, 308 Pa.Super. 450, 465, 454 A.2d 621, 629 (1982); Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 454, 445 A.2d 1214, 1218 (1982); United States v. Smith, 462 F.2d 456, 459 (8th Cir.1972). While this “double hearsay” alone would not be sufficient to create probable cause, this hearsay within hearsay, in conjunction with the informant’s direct observations, does give rise to the necessary probable cause.

In sum, viewing the totality of the circumstances, we find that the search warrant was properly issued on the basis of probable cause as detailed in the affidavit of Trooper Mervin E. Hill, Jr.

Turning to appellant’s second assertion of error, we find that the prosecutor did improperly comment upon certain incoming telephone calls and the trial court erred in permitting the commentary. Further, we conclude that the remarks did prejudice the jury against appellant to such an extent as to prevent it from rendering a true verdict. Thus, a new trial is warranted.

Testimony at trial revealed only that during the search, several phone calls came into the premises and the callers asked for “Steve,” appellant’s first name. During her closing remarks, the prosecutor stated: “I am suggesting to you that the telephone calls that were received by the defendant at his house when the police were there and there was testimony from both the defendant and the police officers, that there were some five or six telephone calls received there for Steve, were from people who were ordering drugs from the defendant.” (N.T. 386) Despite immediate objection, the trial court allowed the prosecutor’s comments to stand without curative instruction.

It is axiomatic that a prosecutor must limit her closing argument to facts and evidence of record and legitimate inferences drawn therefrom. Commonwealth v. Hardcastle, 519 Pa. 236, 252, 546 A.2d 1101, 1109 (1988); Commonwealth v. Lawson, 519 Pa. 175, 189, 546 A.2d 589, 596 (1988); Commonwealth v. Adkins, 468 Pa. 465, 470, 364 A.2d 287, 290 (1976); Commonwealth v. Fromal, 392 Pa.Super. 100, 116, 572 A.2d 711, 719 (1990). Instantly, there is absolutely no evidence which would tend to indicate that the telephone calls were drag related. Although a large quantity of controlled substances were confiscated from appellant’s residence, it does necessarily follow that everyone or anyone who telephoned appellant was calling in an effort to buy drugs. A myriad of reasons for the calls might exist; however, not one appears in the record. Therefore, the prosecutor’s comment that the “five or six telephone calls received there for Steve, were from people who were ordering drugs from [appellant]” was not a legitimate inference from the evidence of record.

We are cognizant that a “new trial is not mandated every time a prosecutor makes an intemperate or improper remark” and that “[t]o constitute reversible error, the language must be such that its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility towards the defendant, so that they could not render a true verdict.” Hardcastle, 546 A.2d at 1109; Lawson, 546 A.2d at 596; Fromal, 572 A.2d at 719. However, in making her closing remarks, the prosecutor essentially fabricated damning evidence by telling the jury that the telephone calls were made by persons desiring to buy drugs from appellant. Certainly, the prosecutor’s unsupported assertion that the telephone calls were drug related formed in the jury’s mind a picture of appellant as a drug dealer, independent of the evidence of record. Thus, appellant was prejudiced. Such an impermissible impropriety on the part of the prosecutor at such a critical time in a trial, i.e., immediately before the jury begins its deliberations, cannot be overlooked, especially when, as here, the trial court refused to give a curative instruction to the jury.

Upon review, we find that the evidence obtained in the search of December 23, 1988, was properly admitted. However, we also find that the prosecutor’s comment improperly prejudiced the jury against appellant and that the trial judge’s refusal to give a curative instruction to the jury was reversible error. Accordingly, we reverse and remand for a new trial.

Judgment of sentence vacated. Case is remanded for a new trial.

      . In Edmunds, supra, the Supreme Court of Pennsylvania rejected the "good faith" exception to the exclusionary rule as articulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

      . ' Appellant apparently concedes the reliability of the confidential informant. Appellant’s Brief, p. 5, 6.


author: DEL SOLE, Judge:

text:
    589 A.2d 1133
    COMMONWEALTH of Pennsylvania v. Craig S. CARTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1991.
    Filed April 16, 1991.
    Petition for Allowance of Appeal Denied Sept. 9, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellant, Craig S. Carter was found guilty after jury trial of possession of a controlled substance namely heroin, and possession with an intent to deliver. The record reveals that Officers Provident and Wilson of the Narcotics Division of Pittsburgh Police were conducting a surveillance of Appellant as he stood outside Moe’s Bar in the Hazel-wood/Glenwood section of Pittsburgh. They observed Appellant as he approached three different stopped automobiles outside of this bar which is in an area known for narcotics trafficking.

The Officers testified that Appellant walked up to the cars, engaged the occupants in a brief conversation, and then the cars drove away. Appellant was then observed removing an object from a black container in a vacant lot and returning to the street. Appellant then approached the same automobiles, which had returned to the area, and exchanged something with the occupants. Further, Appellant was observed entering the bar after approaching the stopped automobiles. Each detective observed Appellant engaging in this conduct with the occupants of three or four automobiles before he was arrested by the police. Detective Wilson subsequently retrieved the black container — a film cannister — from the vacant lot, and it was found to contain twelve yellow balloon packets of heroin.

Appellant raises two related issues for our review. Initially he claims that the lower court erred in qualifying the two officers as experts and allowing them to testify on ultimate issues. Next, he argues that trial counsel was ineffective in failing to preserve for appellate review his objections to testimony from the two officers on the number of prior arrests by these officers which resulted in convictions. This testimony, which was admitted in the course of qualifying the officers as experts, it is argued, prejudiced Appellant.

Here, the Officers were offered as experts in order to elicit testimony on the street value of drugs, the habits of users, the quantity that would be purchased or possessed at one time, the usual dosage, signs of abuse, and whether the pattern of activity observed by the police officers was consistent with the usual pattern of narcotics transactions. Defense objections to their qualification was overruled, but the court held that their testimony would be somewhat limited. (N.T. 30, February 14-15, 1990), The court never specified the exact limitations of the testimony, instead the trial judge stated, “Some of them, [questions], I’ll allow, but I’ll have to hear each question as asked. We’ll do it on a question-by-question basis. But generally I will deem him an expert.” (N.T. 32. February 14-15, 1990). At no time did the court rule that any of the subjects raised in direct examination of the Officers was inappropriate for expert testimony.

The Officers in this case conducted the surveillance of the bar, found the narcotics, and arrested Appellant. They described Appellant’s transactions with the stopped cars, and discussed the contents of the container filled with balloons of heroin. Officer Provident was then asked, based on his training and experience, if he had an opinion concerning what activity was transpiring. He answered that in his opinion he believed Appellant was “dealing narcotics.” (N.T. 40-41, February 14-15, 1990).

We hold that this opinion was cumulative and prejudicial. The facts presented were easily assessed by an ordinary layperson, and in making the necessary inferences from these facts, the assistance of one claiming to possess special knowledge upon the subject was not required. Expert opinion evidence at this juncture encouraged the jurors to shift their focus from determining the credibility of the Officers’ eye-witness testimony, and allowed them, instead, to defer to the Officers’ expertise as narcotics detectives. See Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). Our supreme court has condemned such testimony as “an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment.” Commonwealth v. Seese, 512 Pa. 439, 443-444, 517 A.2d 920 (1986).

It has long been established that expert opinion testimony is proper only where formation of an opinion on a subject requires knowledge, information, or skill beyond what is possessed by the ordinary juror. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). “Phenomena and situations which are matters of common knowledge, may not be made the subject for expert testimony.” Id. at 442, 517 A.2d 920, citing, Collins v. Zediker, 421 Pa. 52, 53-56, 218 A.2d 776, 777-778 (1966). “Expert testimony is inadmissible when the matter can be described to the jury and the condition evaluated by them without the assistance of one claiming to possess special knowledge upon the subject.” Id., citing, Burton v. Horn and Hardart Baking Co., 371 Pa. 60, 88 A.2d 873, 63 A.L.R.2d 731 (1952).

While the Officers’ expert opinion as to whether there was a drug transaction going on would have been proper had it been offered in a suppression hearing where the existence of probable cause to arrest Appellant might well depend on the Officer’s expertise and knowledge of the way narcotics transactions usually occur, and the locality in which the transaction occurred, it was improper for the purposes here. The absurdity of admitting expert testimony as regards the inferences to be drawn from observing Appellant’s activities can best be illustrated by the following direct examination of Officer Wilson:

Q. J8a~ed on your trainhig and experience, in your opin~ ion would the circurnetance surrounding the seizure of this heroin here be consistent with indications of personal u~e by the detenhant~(
[Objection overruled]
A. My oh~ervation was the i~eason Ihn saying this, ob~ serving the defendant going hack and forth to the cars, finally seeing ILS. currency being handed to him and an item given to that person in that vehicle, which later was found to contain balloons, which was eventually found to contain heroin, would indicate that that defendant was selling heroin. (N.T. at 72, February 14~15, 1990)

The Officer~s opinion is exclusively based on his own observations to which he had already testified before the jury. ]If the jury believed this testimony, they could con~ elude, based on common knowledge of what is happening when one person hands an object to another and in return receives U~S. corrency, that a transaction had occurred. And then if they found credible the testimony that the person had previously retrieved the object from a container which is later found to contain heroin, they may conclude, using their experience with the ordinary affairs of life, that Appellant was selling heroin. No special knowledge or insight is recuired to reach this conclusion.

We have held that when an accused is feund vyith a certain quantity of drugs, expert testimony may be offered by narcotics detectives concerning whether the facts suu rounding the possession of the controlled substance were consistent with an intent to deliver rather than an intent to possess for personal use. Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990); Commonwealth v. Robinson, 399 Pa.Super. 199, 582 A.2d 14 (1990). However, in these cases the police officers did not observe a transac~ tion, hut rather seized narcotics from the defendants in question, and then opined, based on the quantity of drugs seized and from other circumstances, such as the presence of drug paraphernalia, that the defendants Intended to deliver the narcotics.

Therefore, in the case before us where a transaction was observed, the admission of expert testimony concerning the street value of the heroin, the quantities used by addicts, the signs of addiction, and all those areas covered in the Commonwealth’s offer of proof in order to establish Appellant’s intent to deliver, as well as the Officer’s expert opinion that a drug transaction had taken place, was prejudicial error.

Because we have held that it was prejudicial error to qualify the Officers as experts for the purposes for which they testified, we need not decide if trial counsel was ineffective for failing to preserve the issue for appeal that the trial court erred in allowing the Officers to testify that all or almost all of their arrests which went to trial culminated in convictions.

We do hold, however, that such testimony was highly prejudicial, despite the court’s limiting instructions concerning the use of this testimony. The prejudice from such testimony outweighs its materiality in establishing the Officers’ expertise on such matters as their familiarity with the habits of users and distributors of heroin. Such qualification would be, perhaps, proper if conducted in camera. Despite the prosecution’s assertions to the contrary, (N.T. at 23, February 14-15, 1990), this court knows of no authority requiring that such testimony be presented in order to establish the qualifications of Officers Provident and Watson. Rather, the more ordinary method of qualifying such expert witnesses, is to refer to their training in the area of narcotics and the amount of on-the-job experience they have obtained. See, Commonwealth v. Riffert, 379 Pa.Super. 1, 21, 549 A.2d 566 (1988).

Therefore, we reverse the judgment of sentence and remand for a new trial in accordance with this opinion.


author: HESTER, Judge: WIEAND, Judge,

text:
    589 A.2d 1135
    TCI CONSTRUCTION CORP. v. James J. GANGITANO, Appelant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1991.
    Filed April 17, 1991.

      Paul A. Barrett, Scranton, for appellant.
    James V. Fareri, Stroudsburg, for appellee. (Submitted)
    Before WIEAND, MONTEMURQ and HESTER, JJ.
   HESTER, Judge:

James Gangitano appeals from the April 24, 1990 judgment entered by the Court of Common Pleas of Monroe County following a jury trial. The judgment upheld a mechanics lien filed against appellant’s property by TCI Construction Corp., appellee, in the amount of $208,303. The lien, originally filed in the amount of $222,591, was for renovation work performed by appellee on a turn-of-the-century vacation residence in the Pocono Mountains owned by appellant. Appellant argues in this appeal that many of the charges that appellee sought to collect via the mechanics lien were not charges that properly were lienable. Consequently, appellant argues that the trial court erred in refusing to grant his request for remittitur. Appellant also contends that the trial court abused its discretion by not granting a continuance when trial counsel entered his appearance less than two weeks before trial. We find no merit in appellant’s arguments; accordingly, we affirm.

The record reveals the following. Appellant, a Florida resident and a New York businessman, often visited the Poconos and came upon an old home that he purchased for $100,000, which he knew would require substantial renovation. He first contracted with a local firm, Kelly, Inc., to undertake the project but problems developed with both the quality and timeliness of the work. At the time these problems developed, appellant was introduced to Joseph Campanaro, a former vice-president of appellee corporation, at a New York cocktail party. Mr. Campanaro expressed interest on behalf of appellee, a New York based firm, in expanding its work beyond the New York commercial construction field to obtain a toehold in the Pocono residential market. Initially, appellee was retained to review the work done by Kelly, Inc. in order to render advice concerning impending litigation.

Later, appellant retained appellee to replace Kelly, Inc. as the contractor and to complete the project. Although Kelly, Inc. initially had submitted a written proposal for its project contract, appellee was retained pursuant to an oral understanding to correct and complete the project. Appellee discovered that local contractors declined to work on the project after Kelly, Inc. was replaced. Therefore, appellee informed appellant that in order for it to complete the project, it would be required to bring its own employees from New York, as well as New York contractors with whom it regularly did business in order to complete the project. Appellee also informed appellant that proceeding in this manner would require additional expenses relating to housing and feeding workers who would be away from their residences. Appellant allegedly agreed to pay these additional costs and directed appellee to proceed.

Appellant paid appellee several installments totaling $275,000 as the work progressed. He also made a number of changes in materials and details. Ultimately, appellant was displeased with the timeliness, correctness, and the cost of appellee’s work. The relationship between the parties deteriorated, and appellee stopped work. As appellee’s work on the project substantially was complete and the oral contract failed to include any prohibition against filing a mechanics lien, appellee filed a mechanics lien against the property for the costs of the labor, materials, and housing and feeding the workers minus the aforementioned payments.

Appellant retained several different attorneys to represent him during the course of this litigation. He did not contest the form of the lien, the notice provided, or the issue of whether the charges were lienable. Appellant’s sole defense to the lien was that the charges were exorbitant, insufficiently substantiated or documented, and that he should have a set-off against the lien due to defective and incomplete work. The jury credited some of the claimed set-off but upheld most of the renovation charges. This appeal followed.

Initially, we note that a mechanics lien claim is not a common law action. In Sampson-Miller Assoc. Co. v. Landmark, 224 Pa.Super. 25-26, 303 A.2d 43, 43 (1973) (footnote omitted), we stated:

Mechanics’ liens were non-existent at common law, being purely of statutory origin. As they are in derogation of the common law and since they effectively represent a special remedy in favor of a unique class of creditors, our courts have generally reviewed such claims with a strict construction of the statute which created them. Brann & Stuart Co. v. Con. Sun Ray, Inc., 433 Pa. 574, 253 A.2d 105 (1969); McCarthy v. Reese, 419 Pa. 489, 215 A.2d 257 (1965); see Act of May 28, 1937, P.L. 1019, art IV § 58, 46 P.S. § 558.

Appellee contends initially that due to the special nature of mechanics liens under the Mechanics’ Lien Law of 1963, 49 P.S. § 1101 et seq., the only proper manner to contest whether charges are lienable was by filing preliminary objections or a demurrer to the sufficiency of the mechanics lien. Once the propriety of the lien is admitted, the only defense is in the form of a set-off since counterclaims are not permitted. It contends that since appellant did not object to the lien but merely filed an answer challenging the merits of the complaint, appellant has only the right of a set-off and has waived procedural objections regarding the legal sufficiency of the mechanics lien documentation. See Pa.R.C.P. 1032 (a party waives objections which such party should have raised in the appropriate form with certain exceptions not here applicable). Furthermore, appellee contends that appellant did not raise this specific ground of error in his motion for post-trial relief and therefore has waived this issue on appeal. See Pa.R.C.P. 227.1(b). Accordingly, appellee contends that appellant cannot now contest on appeal the issue of whether some of the charges properly were lienable.

We do not agree that appellant has waived the issue of whether the lien improperly included charges that were unrelated to the renovation of the property and therefore unlienable by failing to file preliminary objections or demurring to the lien. By contesting the fact that the costs properly were incurred on the project in his answer to the lien, appellant also was contesting whether the costs properly could be liened. Appellant therefore would be entitled to a set-off for these charges. Appellant may have missed the opportunity to assert this affirmative legal defense to some of the charges in the lien by not challenging the lien facially or moving to strike various charges as inappropriate for a lien, but he still is permitted to challenge the validity and sufficiency of the project documentation that was submitted to the jury. In other words, appellant could attain the same end by different means. Therefore, since appellant did contest the terms and sufficiency of the contract and whether these charges properly were incurred, the issue was not waived by filing only an answer to the mechanics’ lien complaint.

Nevertheless, we agree with appellee that appellant failed to preserve properly this particular argument in his post-trial motions. Our review of appellant’s motion for post-trial relief and his supporting brief indicates that his arguments relate solely to the proper factual documentation of all the charges. Nowhere is there any mention of the inappropriateness of including some charges that may or may not be related directly to costs incurred by appellant in the renovation of the house as is required by the mechanics lien law. Furthermore, even though appellant does mention legal sufficiency in his post-trial motions, he does not in any manner relate this legal insufficiency of the charges to the issue of whether they are lienable under the mechanics lien statute. Instead, he makes unsubstantiated, unrelated, and boilerplate assertions of error. We often have repeated the requirement that arguments must be set forth with specificity and particularity in order to be preserved for appellate review. See Pa.R.C.P. 227.1(b); Dauphin Deposit Bank & Trust v. Pifer, 383 Pa.Super. 275, 556 A.2d 904 (1989); DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 544 A.2d 1345 (1988); Bryant v. Girard Bank, 358 Pa.Super 335, 517 A.2d 968 (1986). Accordingly, we find that appellant has waived this issue and has failed to preserve it for our review.

Thus, there is no basis advanced by appellant upon which we can grant remittitur since the amount upheld by the jury was less than that sought and supported by appellee’s evidence. Appellant therefore would have us second-guess the jury, whose province it is to resolve the factual issue of credibility in contradictory evidence adduced at trial. This we will not do. See Daley v. John Wanamaker, Inc., 317 Pa.Super 348, 464 A.2d 355 (1983) (remittitur limited to excessive and unsupported damages).

Even if this issue had been preserved for our review, we would conclude that it is without merit. The contested charges are those for the initial consultation and estimation of the project, the rental cost of equipment not consumed entirely on this job, and the costs for housing and feeding employees transferred from New York for the project. Appellant also contested employees’ expenses for liquor and telephone bills. The first of these costs was incurred before any of the work was begun and was paid for by appellant’s first installment payment. Therefore, it is not among the charges included in the lien. There is a split of authority in many jurisdictions concerning how directly related the costs must be to the site work in order to be lienable under a mechanics lien. There is an absence of clear Pennsylvania case law on this subject. However, in our view these costs were incurred solely for this particular project and were either necessary for the work to go forward or are costs that appellant acknowledged specifically would be required to complete the job.

The jury concluded that the contract was a cost-plus contract rather than a fixed-price contract, and therefore the profit was earned as the project progressed and could be liened. Appellee had no other projects in the Poconos area and did not utilize any of its employees for other projects. The jury did allow some set-off for contested charges and defective work. Consequently, these charges found valid by the jury do not represent an improper attempt by appellee to secure unliquidated damages for breach of contract or to recover general overhead costs. Instead, they represented costs incurred during the work on this particular project. As a result, these charges by nature properly were includable by appellee in its mechanics lien.

Appellant next argues that the trial court abused its discretion by denying his request for a continuance based upon the fact that trial counsel made his appearance only two weeks prior to trial. We note initially that the grant of a continuance is within the discretion of the trial court and will be reversed on appeal only for an abuse of discretion or an error of law. See Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware Inc., 439 Pa. 159, 266 A.2d 698 (1970). An abuse of discretion by the trial court is not mere error in judgment. If in reaching a conclusion the law is overridden or misapplied, or the judgment exercised manifestly is unreasonable, or the result of partiality, prejudice, bias, or ill-will as shown by the evidence or record, discretion is abused. Fee v. Fee, 344 Pa.Super 276, 496 A.2d 793 (1985).

Instantly, we find no evidence of an abuse of discretion. The record and the trial court opinion indicate that appellant consistently failed to comply with repeated discovery requests and failed to appear for a scheduled deposition on two different occasions without explanation. He refused to accept service by mail and his former counsel withdrew for nonpayment of fees. Appellant refused to accept service of the notice of discovery proceedings or to engage Pennsylvania counsel. Subsequent notice of the trial listing was given in accordance with local rules. No objection to the trial listing was filed until two weeks prior to trial. Under these circumstances, we conclude that the trial court properly refused to grant a continuance as it concluded that it would serve only to delay trial for additional discovery which previously should have been completed. Therefore, we fail to find an abuse of discretion.

Judgment affirmed.

WIEAND, J., concurs in the result and files a concurring statement.

MONTEMURO, J., concurs in the result.

WIEAND, Judge,

concurring.

I concur in the result. By not raising the lienability of expenses by employees of the contractor for liquor and telephone calls, appellant waived this issue and failed to preserve it for appellate review. Therefore, I find it unnecessary to express any opinion as to whether such expenses are properly the subject of a mechanic’s lien proceeding and do not join that part of the majority opinion.


author: CIRILLO, Judge:

text:
    589 A.2d 1140
    COMMONWEALTH of Pennsylvania v. Barbara REICHLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 4, 1991.
    Filed April 17, 1991.

      Michael D. Suders, Asst. Public Defender, Mifflinburg, for appellant.
    Robert B. Sacavage, Dist. Atty., Carmel, for Com., appellee.
    Before CIRILLO, MONTEMURO and TAMILIA, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Northumberland County. Appellant Barbara Reichle was charged with two counts of driving under the influence of alcohol (DUI), 75 Pa.C.S. § 3731(a), reckless driving, 75 Pa.C.S. § 3714, and a violation of 75 Pa.C.S. § 3301, driving on the right side of the roadway. Reichle entered into a negotiated guilty plea to one DUI charge in exchange for the Commonwealth’s agreement to nol pros the remaining charges and recommend the mandatory minimum sentence of 48 hours incarceration. 75 Pa.C.S. § 3731(e).

The sentencing court accepted the plea agreement, and Reichle was sentenced to serve 48 hours imprisonment and 50 hours of community service with the Salvation Army. A motion to modify sentence was filed and denied. See Pa.R.Crim.P. 1410. On appeal, Reichle challenges the discretionary aspects of her sentence, and raises the following issues:

1. Whether a substantial question about the appropriateness of the sentence exists where the sentence was excessive for this particular defendant?
2. Whether the court erred by imposing an excessive sentence?
3. Whether the court erred by failing to consider all the information regarding this defendant?

Generally, a plea of guilty amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of the sentence, and the validity of the guilty plea. Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982); Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980); Commonwealth v. Montgomery, 485 Pa. 110, 401 A.2d 318 (1979); Commonwealth v. Zanine, 444 Pa. 361, 282 A.2d 367 (1971); Commonwealth v. Pelzer, 319 Pa.Super. 282, 466 A.2d 159 (1983); See also Commonwealth v. Fruehan, 384 Pa.Super. 156, 557 A.2d 1093 (1989); Commonwealth v. Coles, 365 Pa.Super. 562, 569, 530 A.2d 453, 456 (1987), alloc. denied, 522 Pa. 572, 559 A.2d 34 (1989). The Commonwealth and Reichle bargained for a particular sentence. At the hearing plea hearing, following a full colloquy, Reichle accepted the sentence. Thereafter, the court accepted the guilty plea and Reichle was sentenced. Reichle received precisely what she was promised under the terms of the agreement.

Where the plea agreement contains a negotiated sentence which is accepted and imposed by the sentencing court, there is no authority to permit a challenge to the discretionary aspects of that sentence. “If either party to a negotiated plea agreement believed the other side could, at any time following entry of sentence, approach the judge and have the sentence unilaterally altered, neither the Commonwealth nor any defendant would be willing to enter into such an agreement.” Coles, 365 Pa.Super. at 571, 530 A.2d at 458. Permitting a discretionary appeal following the entry of a negotiated plea would undermine the designs and goals of plea bargaining, and “would make a sham of the negotiated plea process[.]” Id., 365 Pa.Superior Ct. at 568, 530 A.2d at 456. For these reasons, we dismiss the appellant’s appeal of the discretionary aspects of sentence.

The Commonwealth has included in its brief a request for costs and counsel fees. See Pa.R.A.P. 2744. The Commonwealth contends that Reichle’s appeal is frivolous and, pursuant to the Pennsylvania Supreme Court’s recent decision in Smith v. Board of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990), counsel fees and costs are warranted.

The authority to assess counsel fees and costs for the filing of a frivolous appeal is found in Pennsylvania Rule of Appellate Procedure 2744, which states in part:

Rule 2744. Further Costs. Counsel Fees. Damages for Delay.
In addition to other costs allowable by general rule or act of Assembly, an appellate court may award as further costs damages as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay ...,
if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule.

Pa.R.A.P. 2744. In Smith, the supreme court stated:

This Court has affirmed the power of an appellate court to award attorney’s fees pursuant to this Rule in a civil action, see Gossman v. Lower Chanceford Township Board of Supervisors, 503 Pa. 392, 469 A.2d 996 (1983), but we have never addressed a court’s power to impose such a sanction where, as here, appellate counsel is required by constitutional mandate to represent the client.... We now hold that despite the constitutional right to counsel in an appeal from a criminal conviction, costs and attorney’s fees may be assessed against court-appointed appellate counsel for the filing of a frivolous appeal.

Smith, 524 Pa. at 509, 574 A.2d at 563. In Smith, the appellant/parolee was convicted of robbery and sentenced to a term of imprisonment of eight months to four years and eleven months. He was paroled subject to the condition that he remain employed. The Board of Probation and Parole discovered that Smith had failed to report to work, and he was thereafter arrested for violating the condition of his parole. Smith waived his hearing, conceded the technical violation, and was sentenced to serve ten months back time. After receiving notice of his recommitment, Smith requested appointment of counsel and filed a petition for administrative relief. This petition was denied. Id., 524 Pa. at 503, 574 A.2d at 560.

On appeal, the Commonwealth Court of Pennsylvania affirmed and determined that Smith’s appeal was frivolous because the court had repeatedly held that it would not review the discretionary recommitment when the recommitment period is within the presumptive range. Id. The Commonwealth Court, on this basis, granted the Board’s petition for counsel fees pursuant to Pennsylvania Rule of Appellate Procedure 2744. Smith appealed, and the Pennsylvania Supreme Court affirmed. Smith v. Board of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990). The court reasoned that an indigent’s constitutional right to appointed counsel for purposes of appealing a criminal conviction neither includes nor justifies the advancement of frivolous claims on appeal. Id., 524 Pa. at 509, 574 A.2d at 568, citing McCoy v. Court of Appeals, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988).

In the case before us, we note that the limited right of appeal following the entry of a negotiated .guilty plea is, as noted above, a well established principle in this Commonwealth. See Moyer, supra; Unger, supra; Montgomery, supra; Zanine, supra. Moreover, we point out that the right to a direct appeal from the discretionary aspects of a judgment of sentence is not absolute. See 42 Pa.C.S. § 9781(b). An appeal as of right exists only in a challenge to the legality of the sentence. 42 Pa.C.S. § 9781(b). See also Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987); Pa.R.A.P. 2119(f). Here, appellant acknowledged during her guilty plea colloquy and during her sentencing hearing that her rights on appeal were limited to claims of ineffectiveness of counsel, validity of the guilty plea, legality of the sentence, and jurisdiction of the court. Despite the established precedent and the trial court’s repeated clarification on the record, the appellant nevertheless beseeched this court for review. We can discern no factual or legal basis for this appeal, and appellant offers no argument to alter the established law. See Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773 (1964); cf. Rules of Professional Conduct 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”)

We find that appellant’s claim lacks any basis in law or fact. We conclude, therefore, that the appeal is frivolous. Smith, supra; Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974); see also McCoy, supra (an appeal which is determined to lack any basis in law or fact is considered to be frivolous); cf. Riddle v. Commonwealth of Pennsylvania, Dept. of Transportation, 136 Pa.Cmwlth. 508, 583 A.2d 865 (1990). We remand to the trial court for the determination and imposition of costs and counsel fees. Smith, supra; Pa.R.A.P. 2744.

Appeal dismissed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Section 3731(e) of the Motor Vehicle Code provides in part:
      (e) Penalty.—
      (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:

        (i) Not less than 48 consecutive hours.
      ******

      . The colloquy provides, in part:
      Q: Knowing all of that, Mrs. Reichle, is the plea that you’re tendering to the Court today a free, knowing, and voluntary act on your part?
      A: Yes, it is.
      Q: To ask it another way, has anyone pressured, threatened, or forced you in any way to have you enter the plea?
      A: No.
      Q: Again, the plea being D.U.I., with a possible maximum penalty of two years and a $5,000.00 fine, or both. It’s the Court's understanding this is your first offense. So, there is a mandatory penalty of at least 48 hours and the terms of the plea agreement indicate that you will receive the mandatory minimum. Is that your understanding of the extent of the plea agreement?
      A: Yes.
      ******
      Q: Finally, do you understand that in the event I accept the plea and sentence you accordingly you [would] only be able to appeal to the higher Court on four grounds. Those grounds are whether the plea today is free, knowing, and voluntary, whether this Court has jurisdiction, whether [the] sentence is illegal, or whether your attorney was allegedly ineffective. Those are the only four grounds you can raise to a higher Court.
      A: Yes.
      We note that following sentencing the appellant was again informed of her limited appellate rights, and again acknowledged her understanding of the limited issues she could raise on appeal.

      . We note that Reichle has not challenged the validity of her guilty plea. See Pa.R.Crim.P. 321.


author: BROSKY, Judge.

text:
    589 A.2d 1143
    Marilyn D. ABADIE, Appellant, v. RIDDLE MEMORIAL HOSPITAL.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1991.
    Filed April 23, 1991.

      John M. Hickey, Media, for appellant.
    Susan L. Wallack, Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an Order sustaining preliminary objections in the nature of a demurrer to appellant’s two-count amended Complaint.

According to the allegations of her amended Complaint, appellant was a patient at appellee hospital where she was to undergo a lower gastrointestinal x-ray. She was placed upon a table in the x-ray room with an intravenous needle in her arm. However, the attendant had then left the room. Shortly thereafter, appellant heard loud, roaring noises, laughter and vulgar language. Appellant averred that the noise was caused by a birthday celebration for a hospital employee. As a gift to the employee, the other employees had hired a male dancer dressed in a gorilla outfit to strip. Appellant claimed that she was already emotionally fragile and suffered from severe anxiety disorders and that appellee’s employees, by their conduct, had intentionally and negligently caused her emotional distress.

Appellee filed preliminary objections in the nature of a demurrer on the basis that (1) no cause of action exists in this jurisdiction for the tort of intentional infliction of emotional distress and, even if it were recognized, the facts of the amended Complaint are insufficient to set forth a cause of action for intentional infliction of emotional distress; (2) the tort of “abandonment” does not exist in Pennsylvania and, even if it were cognizable in this jurisdiction, the facts in the Complaint do not support this cause of action; and (3) no claim can be made for punitive damages if the underlying cause of action is not sustainable. The court sustained appellee’s preliminary objections, whereupon this appeal followed.

We first note the guidelines which we must follow in reviewing the propriety of an Order granting preliminary objections in the nature of a demurrer. Preliminary objections in the nature of a demurrer admit the truth of the factual averments of the Complaint, but not conclusions of law, as well as all reasonably deducible inferences therefrom. The demurrer must be dismissed If the averments of the Complaint set forth a cause of action which, if proven, would entitle the party to relief. If the Complaint fails to set forth a cause of action, the demurrer must be sustained. Crivellaro v. Pennsylvania Power & Light Co., 341 Pa.Super. 173, 491 A.2d 207 (1985); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981), citing Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

Appellant’s first argument on appeal is that her Complaint does make out a cause of action for negligent infliction of emotional distress as a result of the conduct of appellee’s employees. Appellant argues that the averments in the amended Complaint of her emotionally and psychologically fragile condition plus the fact that appellee knew that she did suffer from anxiety neurosis are sufficient to sustain her claim. It is apparent from amended Complaint that she is alleging infliction of emotional distress, only, as a result of appellee’s conduct. Negligent infliction of emotional distress is the subject of Section 436A of the Restatement (Second) Torts.

If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

Comment a to this section explains:

Under the rule stated in this Section, the negligent actor is not liable when his conduct results in the emotional disturbance alone, without the bodily harm or other compensable damage.

The above section of the Restatement and its accompanying Comment have been interpreted as requiring an averment of physical harm. Banyas, supra. See also Sinn v. Burd, supra, and Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), which discuss the requirement of physical harm resulting from emotional disturbance as set forth in the Restatement (Second) Torts § 436. The Banyas requirement for pleading a cause of action for negligent infliction of emotional distress is now well-established. Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988); Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986); Lazor v. Milne, 346 Pa.Super. 177, 499 A.2d 369 (1985); Justice v. Booth Maternity Center, 345 Pa.Super. 529, 498 A.2d 950 (1985), reversed on other grounds, 510 Pa. 429, 509 A.2d 838 (1986); Crivellaro, supra.

Appellant states in her Brief to this court that she has alleged in her amended Complaint emotional and psychological damage. We have examined her amended Complaint and find this to be so. At the same time, however, and despite appellant’s assertion to the contrary, we find wholly absent from the amended Complaint any averments of physical harm, injury or illness occurring as a result of appellee’s conduct. Although appellant does aver in her amended Complaint that she is suffering from psychological factors affecting her physical condition and, further, that she will be required to expend substantial sums of money for medical care for her injuries, she does not plead the nature of her physical ills or injuries.

For example, in Crivellaro, supra, Ms. Crivellaro averred in her amended Complaint that she “ha[d] suffered from severe emotional distress and related physical trauma, including intense headaches, uncontrollable shaking, involuntary hyperventilation and shortness of breath, frequent nightmares, inability to control bowels, upset stomach, and an intense tightening of the muscles in the neck, back and chest which produced severe pain lasting several days----” 341 Pa.Super. 179-80, 491 A.2d 210. Therefore, on the basis of Banyas and its progeny, we conclude that the trial court was correct in sustaining appellee’s demurrer to this claim.

In her second issue on appeal, appellant asserts that her amended Complaint states a cause of action for intentional infliction of emotional distress on the part of the employees of appellee because of the outrageousness of their conduct. This type of conduct is explained in Section 46(1) of the Restatement (Second) Torts.

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

The gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tortfeasor. Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987). However, in that case, our supreme court imposed, as a threshold requirement to determining whether specific conduct of which a party complains reaches the level of outrageousness under Section 46 of the Restatement (Second) Torts, an allegation of physical injury or harm. The Kazatsky court explained, “Given the advanced state of medical science, it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant’s ‘outrageousness’ without expert medical confirmation that the plaintiff actually suffered the claimed distress.” 515 Pa. at 197, 527 A.2d at 995. What is required, according to Kazatsky, is “some objective proof of severe emotional distress.” Id. “At the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” Id. Because the Kazatskys failed to present evidence which would have established their right of recovery under Section 46 of the Restatement (Second) Torts, the supreme court did not consider it necessary to determine whether King David’s conduct reached the level of outrageousness required to sustain a claim under Section 46 and refused to adopt that section of the Restatement as the law in this Commonwealth.

The decisions of this court are in accord with Kazatsky. Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (medical assistance for emotional distress must be offered into evidence); Ford v. Isdaner, 374 Pa.Super. 40, 542 A.2d 137 (1988) (objective medical proof of emotional distress required; degree of tortfeasor’s conduct not outrageous to justify liability under Section 46 in any event).

As with her claim of negligent infliction of emotional distress, appellant’s claim for intentional infliction of emotional distress must likewise fall for the lack of any averment in her amended Complaint of physical harm, injury or illness occurring as a result of appellee’s conduct. See discussion supra at 1144. Moreover, we do not believe that her allegations of outrageousness, even if proven, rise to the level of the extreme and outrageous conduct contemplated by the Restatement. The conduct of appellee’s employees is not that which "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) Torts, § 46, Comment d. The Comment further refines liability under this section as follows:

The liability clearly does not extend to mere insult, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.

Id; emphasis supplied. Therefore, on the basis of Kazatsky and its progeny, appellee’s demurrer was properly sustained.

Finally, appellant contends that she is entitled to punitive damages because of the outrageous and extreme conduct of the employees of appellee. The trial court sustained a demurrer to the second count of appellant’s amended Complaint in which she alleges these damages. It is true that punitive damages may be awarded to punish conduct that is so outrageous as to rise to the level of intentional, willful, wanton or reckless conduct. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991); Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989); Houston, supra; Restatement (Second) Torts, § 908. However, punitive damages cannot be recovered in the absence of a legally recognized injury. Houston, supra. Since appellant has failed to meet the threshold requirement to maintain her cause of action, see Banyas, supra, and Kazatsky, supra, it logically follows that her claim for punitive damages cannot be sustained. Punitive damages are an element of damages arising out of the initial cause of action. Consequently, if the first cause of action is dismissed, the punitive damage claim cannot stand. Kirkbride, supra; Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959); Schecter v. Watkins, 395 Pa.Super. 363, 577 A.2d 585 (1990). Therefore, the trial court was correct in sustaining appellee’s demurrer to the second count of appellant’s amended Complaint.

Order affirmed.

      . The trial court in its Opinion and appellee in its Brief to this court discuss this tort. However, the trial court states that appellee has mischaracterized appellant’s claim of negligent infliction of emotional distress as one of abandonment. The court stated “[Appellant’s] counsel claims that the case does not charge [appellee] with abandonment but rather that abandonment was part and parcel of the [appellee’s] negligence.” Opinion, 6. Moreover, in her Statement of the Case portion of her appellate Brief, appellant advises this court that she “never alleged abandonment but only used the word abandonment among other words to describe the negligence of Appellee." [Pages unnumbered]. Therefore, we will treat appellant’s claim of abandonment as one alleging negligent infliction of emotional distress.

        . Appellant was given the opportunity to amend her Complaint after appellee had filed preliminary objections in the nature of a demurrer to the initial Complaint. As we have seen, however, she has not taken advantage of that opportunity to allege any specific physical injuries or ills emanating from the alleged infliction of emotional distress as required by Banyas, supra in text. The only amendment which appellant has offered is the addition of averments relating to appellee's negligent abandonment of her. We have decided to treat this additional claim as one for negligent infliction of emotional distress. See note 1, supra.