author: MONTEMURO, Judge:

text:
    472 A.2d 1083
    Thomas J. FUREY v. THOMAS JEFFERSON UNIVERSITY HOSPITAL and Gerald Marks, M.D., and Melvin Moses, M.D. Appeal of Gerald MARKS, M.D.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1983.
    Filed Feb. 10, 1984.
    Petition for Allowance of Appeal Denied May 8, 1984.

      Allan H. Starr, Philadelphia, for appellant.
    Gustine J. Pelagatti, Philadelphia, for appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

This matter is before the court on the appeal of Gerald Marks, M.D., the defendant/appellant in this malpractice action. Thomas J. Furey, the plaintiff/appellee, was admitted to the emergency room of Thomas Jefferson University Hospital on November 9, 1970, with complaints of severe abdominal pain. Dr. Marks operated on appellee several hours later. While appellee concedes that Dr. Marks’ operative performance was proper, he contends that the operation itself was not indicated. The case was tried before a jury from March 24, 1981, through March 31, 1981. A verdict was returned for appellee in the amount of $75,-000.00. Motions for a judgment n.o.v. and a new trial were filed by appellant and denied by the lower court. This appeal followed from the denial of the post-trial motions.

While appellant has asserted several grounds of error, we find that the first two assignments of error are crucial and prove to be dispositive. We reverse and remand for a new trial.

I. IMPROPER ADMISSION OF TESTIMONY.

The first contention which we address involves the trial court’s allowance of testimony by appellee’s medical expert. Specifically, appellee’s medical expert testified, over objection, that a handwritten result on a laboratory slip was “460” units. Appellant further complains that this error was exacerbated rather than cured by the ensuing judicial comments.

Careful review of the record compels us to agree. An examination of the parties’ respective theories of the case reveals that the jury’s resolution of whether the disputed result was “460” or “ < 160” was a pivotal issue, and that admission of the challenged testimony was gravely prejudicial. Scrutiny of the context of the testimony and the subsequent judicial comments demonstrates that the prejudicial error was far from cured.

Appellee’s theory of the case was presented through one expert witness, Dr. Robert P. Bass, Jr. Dr. Bass is an osteopathic, Board Certified family practitioner who had practiced for twenty-five years at the time of trial. Dr. Bass testified that appellee entered the hospital suffering from acute pancreatitis, an inflammation of the pancreas. Dr. Bass based his diagnosis of pancreatitis on the results obtained from a laboratory test for serum amylase. He opined that an elevated amylase result was the “hallmark” of pancreatitis. Furthermore, he declared that the laboratory slip indicated that appellee’s amylase was “460” units, which represented an elevation from a normal range of 60 to 200 units.

Given this “cardinal” sign of pancreatitis, Dr. Bass stated that the recognized treatment for appellee’s condition was nonsurgical. He testified that in ninety-five percent of all pancreatitis cases, the symptoms resolved almost “spontaneously” within forty-eight to seventy-two hours, with only close observation and supportive treatment including hydration, intravenous fluids, and possible antibiotics to prevent infection.

In response to inquiries regarding appellee’s documented bacterial infection, Dr. Bass testified that the bacterial infection could not have been significant because appellee did not have an accompanying fever. Laboratory results from a blood sample taken before the operation showed the presence of Escherichia coli (E. Coli) bacteria. Dr. Bass admitted that the existence of E. Coli in the body outside of the digestive system signified an infection in the body, and if the infection reached the blood stream it could possibly become a life-threatening situation. Dr. Bass testified, however, that even in instances of overwhelming infection, treatment should be restricted to antibiotic therapy.

It was Dr. Bass’ ultimate opinion, therefore, that appellee had pancreatitis and a mild bacterial infection, neither of which required surgical intervention. This being so, appellant did not, according to Dr. Bass, conform to reasonable standards of the medical profession in that he exposed appellee to the unnecessary risk of surgery and the complications which followed thereafter.

The defense presented three expert witnesses, including the defendant/appellant, to substantiate their position that surgery was not only a proper course of treatment, but an essential one. The defense experts were Dr. Charles C. Wolferth, a Board Certified general surgeon who has practiced since 1954; Dr. George P. Rosemond, a Board Certified general and thoracic surgeon who was retired at the time of trial, having practiced from 1934; and the appellant, a Board Certified general, colon and rectal surgeon who has practiced since 1951. The testimony of these three medical experts was that at the time appellee was admitted to the hospital, he was in a state of shock from an overwhelming and life-threatening bacterial infection. Because of this infection and irrespective of its source, the defense experts testified that emergency surgery was required.

While the cause of the infection was not located during the exploratory surgery, the defense experts were adamant that there were no indications of pancreatitis. The appellant, Dr. Marks, suspected that the infection was caused by a perforated diverticulitis, and Dr. Wolferth suggested that the infection originated from inflammation and leakage of the sigmoid colon. Both of these diagnoses accounted for the appearance of E. Coli bacteria in the abdominal cavity. A lavage of the abdominal cavity was performed to cleanse out the abnormal, infectious fluid, and then drains were inserted and the incision packed closed.

The defense countered Dr. Bass’ diagnosis of pancreatitis by attacking the serum amylase result which Dr. Bass claimed to be “460”. Dr. Bass had professed no knowledge of the clinical procedures for serum amylase testing at Thomas Jefferson University Hospital in 1970. The defense presented Dr. Schwartz, Director of the Clinical Laboratory of Thomas Jefferson University Hospital. Dr. Schwartz testified that he was familiar with that hospital’s laboratory procedures in 1970 and at present, and that because of the way the test was performed, it was impossible for a value of “460” to be obtained, while it was common to reach a result of “<160.” Dr. Schwartz explained the serum amylase test and the equation utilized to get the amylase reading. This testimony was undisputed, as was testimony that the laboratory slip results were “called up” to the emergency room surgical resident who then transcribed them in his report to appellant.

It can hardly be argued that Dr. Bass’ interpretation of the serum amylase result was anything but inadmissible testimony. Appellee, in fact, completely avoids discussion in his brief on the propriety of this testimony. The scope of expert testimony is limited:

Expert testimony is permitted only as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman. McCormick, Handbook on the Law of Evidence, § 13, (2nd ed. 1972); Commonwealth v. Newsome, [462] Pa. [106], 337 A.2d 904 (Filed 1975); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971). Where the issue involves a matter of common knowledge, expert testimony is inadmissible. Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1966).

Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976).

Here, Dr. Bass lacked any special expertise which would qualify him to decipher the numerical notations on the laboratory slip — he was neither a handwriting expert, nor was he the preparer of the document. The source of Dr. Bass’ interpretation was common knowledge, for which expert testimony is impermissible. His testimony on this subject was a usurpation of the jury’s traditional function and manifestly erroneous.

To justify a reversal because of a ruling on evidence, the ruling must not only be technically erroneous, but it must also be harmful to the appellant. Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965). We do not hesitate to find prejudice here. The ultimate issue before the jury was whether surgery had been necessary; i.e., whether they believed Dr. Bass’ version or whether they believed the defense version. The jury obviously decided the issue in favor of Dr. Bass’ version. Since the crux of Dr. Bass’ testimony was that appellee had pancreatitis, and that diagnosis hinged on his interpretation of the serum amylase result as “460”, the improper admission of Dr. Bass’ repeated and steadfast translation of that result was “460” was fatal to appellant’s case. Where erroneously admitted evidence goes to the heart of the issue, this court must reverse and remand for a new trial. Commonwealth ex rel. Buchakjian v. Buchakjian, 301 Pa.Super. 213, 447 A.2d 617 (1982).

The trial court, however, refused to find error in its admission of this testimony. In its opinion denying the post-trial motions, that court held that the immediate instructions to the jury cured any potential for error.

The injurious line of questioning began when Dr. Bass was allowed to testify, over objection by counsel for appellant, that the hospital records included a laboratory report which recorded appellee’s serum amylase as “460” units. Appellee’s counsel had Dr. Bass reiterate this numerical value several times, over objection. The trial judge, apparently perplexed as to the reason for the persistent and strident objections, ventured to look at the laboratory slip himself. After observing the slip and within hearing of the jury, he proclaimed, “It’s a test with a number on it, 460.” (Supplemental Record at p. 43).

Appellant’s counsel respectfully protested, whereupon the trial judge gave the following instruction to the jury and then endeavored to clarify the problem himself by questioning Dr. Bass:

THE COURT: The jury will have to decide whether that is 460.
Again, ladies and gentlemen, it is not my opinion that matters. Maybe I am confused at this point, but it ultimately will be for you to decide, and we will wait to hear what cross-examination might clarify this. I don’t prepare the basis. I am in the dark the same as you, and if I call it 460 and for some reason it is not, then, that is for you to decide.
THE COURT (Contd.) I will give this back to the doctor and you can pass that around to the jury at this point. It may assist them in understanding the testimony.
Before you do that, again with the same caveat from me, ladies and gentlemen of the jury, I was about to ask a question. I think that I should ask it.
Doctor, it has ‘normal value’ on this sheet. There is a whole column, this is a printed form, and it has a 60-200 units.
THE WITNESS: That’s correct.
THE COURT: As I understand it, you are saying this particular hospital’s formal {sic) value scope was within from 60 to 200 and that was on their printed form?
THE WITNESS: That’s correct.
THE COURT: Then, immediately beside that in the column ‘result’ it has the number 460, subject to this being cleared up in your case by cross-examination, is that what you meant when you referred to the numbers, Doctor?
THE WITNESS: Yes.
THE COURT: And that 460, in your interpretation of this report it is that a test was done and the result was 460?
THE WITNESS: That’s exactly right.
Mr. STARR: Your Honor, may I be heard?
THE COURT: I will pass this to the jury. You can cross-examine him about it. I don’t want to go into it any further.

(Supplemental Record at pp. 43-44). At this point, the laboratory slip was marked as an exhibit and examined by the jury. Appellee’s counsel then proceeded to stress that the amylase result was “crucial to the plaintiff’s case” (Supplemental Record at p. 45), and had Dr. Bass state several more times that the result was “460.” Thereafter, through his lengthy direct examination, Dr. Bass referred to the “elevated” amylase reading not as an assumption of fact or even his interpretation, but as a fact itself.

It was not until midway through Dr. Bass’ cross-examination that the jury was advised of the controversy over the amylase result. The defense introduced into evidence the surgical resident’s report which noted the serum amylase result after it had been called up from the laboratory. This exhibit was examined by the jurors, and counsel directed their attention to a comparison with other numerals on the report to determine whether the amylase was “<160” or “460.” Counsel for appellant also posed several questions in which he asked Dr. Bass to assume that the amylase result was actually “<160” instead of “460.” Dr. Bass exhibited considerable difficulty in making such an assumption: “Q: ... You have agreed with me if it’s less than 160 it’s no hallmark? A: It’s stated in two places in the record that it’s 460.” (Reproduced Record at p. 235a).

We are mindful that the admission of improper evidence can be cured by appropriate instruction from the court:

[T]he mere admission of improper evidence is not always ground for a new trial. Such an error may be cured and rendered harmless by striking out the evidence and eliminating it from the jury’s consideration. Lilly v. Metropolitan Life Insurance Co., 318 Pa. 248, 177 A. 778; Mitchell v. Edeburn, 37 Pa.Super. 223. However, if the evidence is of a sort that tends to prejudice the minds of the jurors, the error is not cured by instructions to disregard it. Hamory v. Pennsylvania M. & S.R. Co., 222 Pa. 631, 72 A. 227. Whether or not the error is corrected, therefore, involves a consideration of the circumstances under which the irrelevant evidence was given and its probable effect on the jury. Saunders, et al. v. Commonwealth, 345 Pa. 423, 29 A.2d 62.

McJunkin v. Kiner, 157 Pa.Super. 578, 581, 43 A.2d 608, 609 (1945). Consideration of the circumstances here, however, forces us to conclude that the trial court’s instruction failed to have any curative effect.

First of all, the trial judge’s instructions were a response to the judicial comment only. He informed the jurors that his opinion did not matter, and never advised them that Dr. Bass’ opinion did not matter either. To the contrary, he questioned Dr. Bass further to make sure that Dr. Bass’ interpretation was that the result was “460”. Thus, the supposed “curative” instruction served to highlight Dr. Bass’ interpretation rather than to strike it from the jury’s consideration.

Furthermore, any possibility that the instruction actually neutralized the effect of Dr. Bass’ improper testimony was dashed by Dr. Bass’ continued characterization of that result as “460” throughout his lengthy examination. While the trial judge had stated that this confusion might be cleared up on cross-examination, during the whole course of direct examination the jury had no inkling as to why “460” could be anything other than “460”. To make matters worse, the laboratory slip was passed to the jurors immediately after both Dr. Bass and the trial judge had identified it as “460”, and before they were aware of appellant’s alternate interpretation. Of course, that laboratory result does resemble “460” in the absence of notice that it might be “<160”. By the time the jury was finally apprised of the “460”, “<160” conflict, it had already sat through at least a day of testimony by Dr. Bass who had persistently referred to the elevated amylase level as a given. Unfortunately, the trial judge, in his charge to the jury failed to elucidate that the “460”, “ < 160” controversy was an issue for them to decide.

Thus, we find that Dr. Bass’ improper testimony constituted prejudicial error which was not cured by the instruction of the trial court.

II. FAILURE TO CHARGE ON “TWO SCHOOLS OF THOUGHT”

We additionally find prejudicial error in the trial court’s failure to give a submitted point for charge on the “two schools of thought” doctrine. This doctrine is called into play in medical malpractice cases where there is more than one method of accepted treatment for the patient’s disease or injury. The rule is that, where competent medical authority is divided, a physician will not be liable if in the exercise of his judgment he followed a course of treatment supported by reputable, respectable, and reasonable medical experts. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980); Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965).

Here, the medical authority on the treatment of a severe bacterial infection was diametrically opposed. Dr. Bass testified that treatment should absolutely be limited to antibiotic therapy. The defense experts stated that surgical intervention was imperative, and that it would have constituted malpractice to have failed to operate at once. Appellant asserts that on the basis of this testimony, the jury, if it found that appellee had a severe bacterial infection, should have been afforded the opportunity to conclude that both methods of treatment were medically accepted and that appellant was not liable for following one accepted method even though the jury might decide that the treatment advocated by Dr. Bass was preferred.

One of the seminal cases in Pennsylvania on the “two schools of thought” doctrine is instructive. In Remley v. Plummer, 79 Pa.Super. 117 (1922), this court was confronted with a situation where plaintiffs and defendants’ medical experts presented conflicting views as to the proper course of treatment. The court held:

The question actually passed upon by the jury was not whether the defendants, in their handling of the case, had been guilty of negligence in not following a well-recognized and established mode of treatment, but rather, which of two methods, both having their respective advocates and followers of respectable authority, was the safer and better from a surgical standpoint. In other words, in the face of conflicting reliable expert evidence as to what was the proper course to be pursued by the surgeon in charge of the case, twelve laymen, with no knowledge of medicine and surgery were called upon to decide a disputed scientific medical and surgical question upon which eleven physicians and surgeons of standing and experience could not agree, and as to which there is a wide divergence of competent authority, and were permitted to mulct the defendants in damages for following a course of conduct which by far the greater number of the expert witnesses testifying said was in accordance with that indicated by the best modern surgical practice.
Thus practitioners of a reputable school of medicine are not to be harassed by litigation and mulcted in damages because the course of treatment prescribed by that school differs from that adopted by another school: Force v. Gregory, 63 Conn. 167, 27 Atl. 1116; Grainger v. Still, 187 Mo. 197, 85 S.W. 1114; 21 R.C.L. 383; 5 Thompson on Negligence, section 6715. As was said in Patten v. Wiggin [51 Me. 594], supra, ‘The jury are not to judge by determining which school, in their judgment, is the best.’ ‘If the treatment is in accordance with a recognized system of surgery, it is not for the court or jury to undertake to determine whether that system is best, nor to decide questions of surgical science on which surgeons differ among themselves.’: 30 Cyc. 1588, section 8.
The testimony clearly showed a difference of medical opinion, expressed by physicians and surgeons of unquestioned standing and reputation, and the defendants were not negligent for having adopted the view held by the majority of their brethren who testified.

Id., 79 Pa.Superior Ct. at 121-23.

In Remley, the standing and ability of each of the experts was not questioned and so the court reversed a judgment for the plaintiff and entered judgment for the defendants. A jury may not decide which of two respected methods of treatment is the better one. Brannan, supra. In Tobash, supra, the court noted that although “the instructions complained of permitted an inquiry by the jury unwarranted by the applicable law ...” Id., 419 Pa. at 217, 213 A.2d at 593, the appellant was favored by the instructions rather than harmed. It is evident, therefore, that where the evidence establishes “two schools of thought”, the court as a matter of law must find a physician not liable for choosing treatment advocated by either school.

Here, however, an initial jury question was presented as to whether or not there were two competent medical viewpoints on the treatment of severe bacterial infections. The defense strenuously attacked the credentials and expertise of Dr. Bass and both sides claimed that it would be malpractice to follow the treatment advocated by the other side. Faced with this testimony and unaided by the proffered instruction on “two schools of thought”, the question actually passed upon by the jury was not whether the appellant had been negligent in not following a well-recognized and established mode of treatment, but rather, which method was the “correct” one. Remley, supra. Absent the proposed instruction, the jury was not advised that it could find that both methods of treatment were proper courses of treatment, and that appellant would not be liable if he had followed either one. Thus, the requested charge was both accurate and applicable.

The failure to give a requested point for charge, which is accurate and applicable, is reversible error if the appellant has been prejudiced. Gombar v. Schaeffer, 202 Pa.Super. 282, 195 A.2d 527 (1963). “An omission to charge which leaves the jury without discretion on an important question, or which plainly tends to mislead them, is cause for reversal.” 2 P.L.E. Appeals § 491. We find that the failure to give a “two schools of thought” charge was prejudicial error.

While the appellee’s case de-emphasized the importance of the bacterial infection and stressed an alleged failure to diagnose pancreatitis, from the perspective of appellant’s case, the issue of treatment of the bacterial infection was crucial. There was testimony by the defense that even if appellee had had pancreatitis, which they felt he didn’t have, surgery should still have been performed because of the life-threatening bacterial infection. Since the undisputed evidence on the extent of the bacterial infection clearly indicated that appellee’s bacterial infection was serious (i.e., E. Coli bacteria in the blood stream), the jury inevitably had to decide if surgery was a proper course of treatment for the bacterial infection, regardless of whether they found initially that appellant had failed to diagnose pancreatitis. Without being charged that they could find both surgical and non-surgical methods to be proper, the jury engaged in an impermissible weighing of the two alternatives. Thus, the jury was not advised of the allowable latitude of choice in reaching its decision. The appellant, who might have been absolved of liability if a “two schools of thought” charge had been given, was thereby prejudiced.

Accordingly, we reverse and remand for a new trial. This court does not retain jurisdiction.

      . Appellant also argues that Dr. Bass, as a general practitioner, should not have been qualified by the trial court as an expert on the particular subject involved, i.e.,' the "acute surgical abdomen." Appellant assigned as error the trial court’s failure to strike the entire testimony of Dr. Bass.

      . Dr. Bass was not appellee’s treating physician, but was retained as an expert for trial. He examined appellee once briefly, and testified primarily from the hospital records.

      . Dr. Bass noted two exceptions where surgery was recommended for pancreatitis, both instances being of a chronic nature, and neither of which he believed appellee to have had.

      . Drs. Wolferth and Rosemond did not treat appellee but testified on the basis of the facts reported in the hospital records.

      . Diverticulitis is the inflammation of a diverticula which is a pouch which opens off the gut. Diverticulitis occurs especially in small pockets in the wall of the colon which fill with stagnant fecal material and become inflamed, and may cause obstruction, perforation, or bleeding. When perforated, gastrointestinal substances (including E. coli bacteria) are emitted into the abdominal cavity. See Steadman's Medical Dictionary (24th ed. 1982).

      . Counsel for appellant attempted to explain to the trial judge that while the accuracy of the hospital records was stipulated to, the interpretation of the notation representing the serum amylase result was not agreed to, and was a critical factual issue in the case. The trial judge refused to allow appellant’s counsel to acquaint him with these details, and made it clear that any point counsel wished to make should be reserved for cross-examination.

      . Dr. Bass offered his uncalled-for interpretation that the report was written in two different handwritings, and an objection to this testimony by appellant’s counsel was sustained.

      . Although the trial court informed appellant’s counsel that the "two schools of thought” doctrine would be covered in the general charge, the charge failed to encompass such an instruction. This omission was pointed out to the trial judge who insisted that he had covered the subject and noted counsel’s exception. In its subsequent opinion denying the post-trial motions, the lower court recognized that the "two schools of thought" charge had not, in fact, been given. That court held, however, that the testimony did not warrant such a charge.

      . The qualifications of the defense experts were not attacked.


source: Caselaw Access Project

author: POPOVICH, Judge: JOHNSON, Judge,

license: Public Domain

text:
    472 A.2d 1091
    COMMONWEALTH of Pennsylvania, Appellant v. William A. KELLIHER.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1983.
    Filed Feb. 10, 1984.

      William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellant.
    Paul W. Kilgore, Lebanon, for appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Lebanon County (per Judge Walter) awarding the appellee, William A. Kelliher, a new trial after a hearing conducted pursuant to the Post-Conviction Hearing Act (PCHA). 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We reverse.

Following a joint trial in which the appellee and a John Krall were found guilty of burglary, conspiracy and receiving stolen property, post-trial motions raised issues of sufficiency of . the evidence and alleged trial errors, one of which concerned the permissibility of the Commonwealth to cross-examine defense witness Bonnie Sweigart as to her placement in the Accelerated Rehabilitative Disposition (ARD) program. Thereafter, the motions were denied, sentence was imposed and an appeal, raising all of the issues presented to the post-trial motions court, was perfected. A panel of this Court, consisting of Judges Spaeth, Cavanaugh and O’Kicki, affirmed the judgment of sentence in a per curiam opinion. Commonwealth v. Kelliher, 287 Pa. Super. 582, 428 A.2d 247 (1980). Petition for allowance of appeal was denied by the Pennsylvania Supreme Court on January 21, 1981 [No. 512 E.D.Misc. Docket 1980].

Prior to the Supreme Court’s denial of appellee’s request for allocatur, counsel for the appellee filed a “Petition For Post Conviction Relief” on January 7, 1981. Therein it was alleged that the appellee was “eligible for relief because of the use by the state of perjured testimony of Terry Deck which ha[d] recently come to the attention of Petitioner.” After a hearing, the PCHA court denied appellee’s petition on the ground that he failed to prove that the recantation was true. An appeal was perfected from the September 2, 1981 PCHA Order and docketed in this Court on October 5, 1981 at No. 2560 Philadelphia, 1981.- As of the date of this Opinion, the case is still pending.

Notwithstanding the pendency of the prior appeal, appellee filed a second PCHA petition and, as a result of a hearing conducted thereon, was awarded a new trial. In doing so, the PCHA court made the following relevant findings of fact:

16. On June 1, 1981, petitioner filed his second petition under the Post Conviction Hearing Act predicated on the reason a different Superior Court panel had awarded co-defendant John Krall a new trial, finding reversible error in what Kelliher’s panel determined harmless: improper impeachment testimony elicited under cross-examination of a witness’ placement in the A.R.D. program (as if it were a conviction).
17. ...
18. On August 7, 1981, the Court entered its Order continuing th[e evidentiary] hearing and order pending final resolution of the Commonwealth’s petition for reargument of the Superior Court’s award of a new trial for John R. Krall.
19. The Superior Court of Pennsylvania denied the Commonwealth’s request for reargument.
20. The Petition for Allowance of Appeal with the Supreme Court of Pennsylvania in the companion Krall case was denied December 22, 1981.
21. The Krall case was remanded to the Court of Common Pleas January 5, 1982, for a new trial.

The PCHA court went on to discuss that the decision denying Kelliher’s initial appeal was in the nature of a “Memorandum Opinion,” vis-a-vis the ruling granting co-defendant Krall’s request for a new trial was an authored “Opinion.” He found that this distinction, read in light of the succeeding language preceding all notices of cases decided in memorandum form by the Superior Court and listed as such in the Official and Atlantic Reporter Systems, rendered the “Memorandum Opinion” issued in Kelliher’s case to be of no force or effect. The notice consists of the following language:

SUPERIOR COURT OF PENNSYLVANIA
Notice to the Bar
The Superior Court of Pennsylvania, commencing with cases heard or submitted during the March 1979 session, adopted a practice whereby some cases are affirmed per curiam, without a published opinion. However, a memorandum opinion has been prepared and filed by the Superior Court in most of these cases and copies of the memorandum opinion have been forwarded to the chief counsel for the parties and to the lower court. These memorandum opinions contain the rationale of the Superi- or Court in reaching its decision. Copies of these memorandum opinions may be procured by members of the Bar or any member of the public at the prothonotary’s office of the Superior Court in the district in which the case arose. These memorandum opinions are not to be considered as precedent and cannot be cited for any purpose.

Immediately after citing the aforesaid, the PCHA court ended its discussion by observing, “In that fashion we arrive at the conclusion the precedent has been fixed for the issue in question by the decision and opinion in Commonwealth v. Krall. Viewed in that light the trial court for Kelliher committed reversible error in permitting witness impeachment using that witness’ enrollment in an A.R.D. program.” (PCHA court Opinion at 6) From the Order granting Kelliher a new trial, the Commonwealth instituted the instant appeal.

Although we could dispose of the present appeal under the caption of a “Memorandum Opinion” by holding that the issue raised by the appellee in his second PCHA petition has either been “finally litigated” or “waived,” see 42 Pa.C.S.A. § 9544, we feel compelled to respond in the form of an authored opinion to:

1) dispel the misconception engendered by the PCHA court regarding the efficacy of this Court’s “Memorandum Opinions;” and
2) lay to rest once and for all the erroneous belief that under the facts of this case Kelliher is entitled to a new trial.

As to Point 1, we observe that as of July of 1983 the bench and bar have been afforded some insight into, inter alia, the role of this Court’s unpublished “Memorandum Opinions” in a booklet captioned, “Internal Operating Procedures For the Superior Court of Pennsylvania.” Therein, at pages 9-10, under the heading “V. DISPOSITION OF APPEAL” appears, as is applicable here, the following:

8. PREPARATION AND CIRCULATION OF OPINIONS.
The court shall publish either a signed opinion, an opinion per curiam, or a per curiam order. A per curiam order may be supported by a memorandum opinion which shall not be published and may not be cited as precedent in any brief, argument or subsequent opinion. As to published opinions, if the decision of the court is not unanimous, one or more concurring or dissenting opinions may be published, or there may be a notation, without an accompanying opinion, that a judge concurs in the result or dissents. After a proposed opinion is drafted, copies are sent, by the author, to the other members of the panel or the court en banc, to Central Legal Staff for conflict clearance, and to the Recorder’s Office. The panel or en banc members must provide their written votes to the opinion’s author, the other panel members, Central Legal Staff and the Recorder’s office.
Memorandum concurring and dissenting opinions are treated the same as memorandum majority opinions and will not be published in bound volumes unless any two judges of a panel authorize publication. Disputes will be resolved by the President Judge. If the vote is for publication then the majority memorandum opinion will be filed as an Opinion Per Curiam unless its author wishes to sign the opinion.
The opinion is ready for filing if it has commanded a majority and if Central Legal Staff has formally notified that no conflict exists. The majority opinion, along with any accompanying opinions or vote notations, should then be sent to the appropriate Prothonotary’s office for filing and publication. The Prothonotary shall thereafter forward copies of filed opinions to all judges.

Only one minor revision has occurred in regard to the aforecited since the publication of the 1983 Internal Operating Procedures pamphlet; i.e.:

2. A concurring or dissenting memorandum opinion will be treated the same as a majority memorandum opinion and will not be published in bound volumes unless its author desires the opinion to be published, in which event the majority opinion will be converted into an opinion per curiam or a signed opinion.

First and foremost, this Court wishes to note that the objective in foregoing the publication of a “Memorandum Opinion” in the reporter systems is two-fold, both of which we believe benefit the bench, the bar and at the same time do justice to the litigants.

Initially, we wish to make it known that the fact that a “Memorandum Opinion” is not to be cited for precedential value does not in any way detract from or minimize its legitimacy. Rather, this concept (or approach) is rooted in the fact that the case presents no novel question of law or fact which has not already been expounded by a prior decision of an appellate court of this Commonwealth.

The second concern is the futility of publicizing each and every opinion disposing of a case when the case:

(a) raises no substantial legal issue;
(b) is controlled by statute and no substantial question of interpretation, constitutional or public importance is raised;
(c) is controlled by a published decision that is not challenged for any infirmity that requires reexamination of the rule; and
(d) involves factual issues and the evidence is conflicting, so that application of the appropriate standard requires deference to the trial court or the jury.

We believe that the bench and bar is inundated with enough literature to occupy its reading time without having to add to it, unnecessarily, cases that deal with accepted principles of law already in print. Thus, there is no need for duplication by having the manner in which a case is disposed of preserved in the Official and Atlantic Reporter systems.

To eliminate any doubt one may have as to the weight this Court attaches to a “Memorandum Opinion,” we want to make it clear that the ruling entered in any “Memorandum Opinion” is to have the same force and effect as if it were authored and is controlling as to the facts of that case and is the law of that case until overruled, either by a court en banc or the Pennsylvania Supreme Court.

Having laid to rest the subject of the role served by, and the viability of, the “Memorandum Opinion” in the scheme of appellate review in this Court, we can now turn our attention to the propriety of the new trial awarded by the PCHA court to the appellee.

Simply stated, it is the PCHA court’s position that Kelli-her is entitled to the same type of relief secured by codefendant John Krall (a new trial), inasmuch as the inquiry ruled to be prejudicial in Commonwealth v. Krall, supra, was made during their joint trial. Implicit in the PCHA court’s ruling is the determination that Kelliher also was prejudiced by the prosecution’s line of questions disclosing co-defendant Krall’s girlfriend’s entry into an ARD program in its attempt to impeach her credibility.

We find that a perusal of the applicable case law, when viewed against the backdrop of the trial transcript, undermines the PCHA court’s ruling. Moreover, in order to facilitate our disposition of this appeal, we look to the following standard to determine if the issuance of a new trial was called for; i.e.:

Every unwise or irrelevant remark made in the course of trial by a judge, a witness, or counsel does not require the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.

Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973), quoting Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957). Thus, “the critical factor in one[’s] analysis is the prejudice which inures to the accused as a result of the” prosecution’s cross-examination of co-defendant Krall’s witness, Bonnie Sweigart. See Commonwealth v. Iacino, 490 Pa. 119, 126, 415 A.2d 61, 65 (1980). The complained of testimony was elicited by the prosecution during its cross-examination of Bonnie Sweigart; to-wit:

BY MR. LONG:
Q Mrs. Sweigart, isn’t it true that you were charged with the offense of retail theft, along with Paul Harlan [ — Harlan was the Commonwealth’s principal witness and the offense just mentioned was not related to the instant case — ]?
THE COURT: Answer the question yes or no.
A Yes
Q Isn’t it true that Paul Harlan was going to testify against you in that case?
A Yes
Q Isn’t it true that in that he was going to testify against you and you voluntarily placed yourself on the ARD program?
A Yes.
MR. LONG: That’s all
(N.T. 7/5-6/78 at 227)

This court in Commonwealth v. Krall, supra, condemned the use of such evidence (because it did not lead to a conviction) for impeachment purposes, and, additionally, the Krall Court noted that the error was compounded by the trial court’s reference to it in the charge to the jury:

Now members of the jury, you have heard evidence that two of the witnesses had been convicted of crimes of theft. Mr. Harlan was one, and — I don’t want to make a mistake about this — Rebecca Brensinger?—
MR. LONG:
Bonnie Sweigart.
THE COURT:
—Oh, I’m sorry — Bonnie Sweigart; right, Bonnie Sweigart it was. It was the witness for Mr. Krall. Mr. Harlan, of course, was one of the witnesses for the Commonwealth. You may consider that evidence of prior conviction in deciding whether or not to believe all or part of their testimony, but that is the only purpose for which you may consider it. In doing so, you may consider the type of crime committed, how long ago it was committed, and how the conviction may effect [sic] the likelihood that either Bonnie Sweigart, or Paul Harlan, or both, has testified truthfully in this case. (N.T. 7/5-6/78 at 274-275)

It is undisputed that as to Krall, the egregious conduct of the prosecution and trial court warranted a new trial. However, as to appellee-Kelliher, “[t]he effect of such remarks depends upon the atmosphere of the trial[.]” Commonwealth v. Guess, 266 Pa.Super. 359, 370, 404 A.2d 1330, 1335 (1979).

The proprietor of Kleinfelter’s Auction Room in Lebanon County testified that her second floor apartment, situated over the business, had been burglarized. She testified that the theft occurred sometime between Saturday noon on the 28th day of January, 1978 and the following day. She had closed the establishment for the weekend and had traveled to her farm in Fredericksburg, as it was her custom to do. While at her weekend retreat, she was phoned by neighbors and told that the doors to her business were opened. Upon her return, she discovered that the first floor business area had not been disturbed, and even the safe in the office was in its place. However, her second floor apartment had been entered and a safe (containing coins, jewelry and family documents) was missing. A false drawer in the Chippendale desk had been “pulled out” and the purse containing two coins was gone. Several other antiques were taken as well, yet the apartment was not “ransacked.”

Mrs. Kleinfelter proceeded to tell the jury that Kelliher had been an employee of hers for about 2 years before being fired for tardiness on the job. She also stated that Kelliher was her daughter-in-law’s brother and was well aware of the “lay-out” of the building and Mrs. Kleinfelter’s habit of going to her farmhouse when the weather was good, as it was on the weekend of the theft. Mrs. Kleinfelter went on to recount that Kelliher had assisted her in the placement of her antiques in the second floor apartment, which included the Chippendale desk with the secret compartment.

The next witness to appear for the prosecution was Paul Harlan, whose common law wife was John Krall’s half-sister. Harlan had known Krall all of his life and had met Kelliher two weeks before the reported theft when the three of them went to the racetrack in Kelliher’s pickup truck.

Harlan recalls being awakened by his stepson, Terrance Deck, on the 29th of January, 1978, at approximately 12:30 or 1:00 a.m. Terrance informed his stepfather that Krall was at the front door. Harlan got out of bed and was asked by Krall for a screwdriver, sledgehammer and flashlight. Harlan could only give Krall a flashlight. The two then walked over to a pickup truck, with Kelliher seated inside. The vehicle was then backed up to a shed on Harlan’s property, situated about 100 yards from the house, and Kelliher and Krall removed a safe from the bed of the truck. The safe was opened and the jewelry, coins and personal documents (on which Harlan observed the name of Kleinfelter affixed thereto) were moved into Harlan’s house. At this point, Krall told Harlan that the items were taken from Kleinfelter's Auction Room and he wanted to keep them at Harlan’s house until he could locate a buyer. Krall made some phone calls from Harlan’s home and discussed with Kelliher, which Harlan overheard, the possibility that a Doug Dohner or Glenn Swanger might be interested in purchasing the merchandise.

Harlan agreed to let Krall keep the goods at his home for a short period. Within an 8-hour span Krall and Kelliher had left and returned to remove the items that they had left behind. Harlan, for his troubles, was paid 12 or 14 dollars in pennies. He also found on the floor, where the valuables had been placed, 2 coins. After reading about the incident in Monday’s paper, Harlan anonymously phoned Mrs. Kleinfelter and told her that the burglary had been committed by “Krall and a guy named Bill, because at that time [he] didn’t know Kelliher’s last name.” (N.T. 7/5-6/78 at 102)

Terry Deck testified that on the 29th of January, 1978, he saw his uncle (Krall) and Kelliher wrapping up “an antique” on the floor of his living room. And he saw 2 large boxes in the room at the same time that Krall and Kelliher were present with his stepfather.

Kelliher took the stand in his own defense, unlike Krall, and testified that between the evening of January 28th and the early morning of January 29th of 1978 he was in the company of his girlfriend, Rebecca Brensinger. The two lived together. He also recalled loaning his pickup truck to his younger brother, Patrick, during the period in question and receiving it back the afternoon of January 29th.

Kelliher went on to recount how he had sustained an injury to his right foot (burn) at Industrial Castings in late December of 1977 and convalescing until the first week of February of 1978. He also told of having had a skin graft on his right foot and being advised by his doctor to remain off of his feet. He stated he did so.

The preceding accounting was corroborated by Rebecca Brensinger and Patrick Kelliher.

In point of fact, William Kelliher denied committing the burglary and admitted meeting Harlan after the incident at the racetrack with his friend of about 4 years, John Krall. However, he made no effort to conceal the fact that he had been employed at Kleinfelter’s for about 2 years before being let go. He told of possessing keys to the business during his employment, being aware of the “lay-out” of the two-story structure and the contents in the second floor apartment. He likewise did not dispute his familiarity with the Kleinfelters’ weekend habit of traveling to their farmhouse in Fredericksburg, for he had been there on occasion as a guest. Nonetheless, he denied his complicity in the reported theft and being present in the company of Harlan and Krall with the stolen goods in the early morning hours of January 29, 1978.

The trial then progressed with the presentment of Krall’s alibi witness, Bonnie Sweigart, and the complained of cross-examination by the prosecution. At this stage of the discussion, “[i]t is pertinent to note that [Sweigart] was not called by [Kelliher] as a witness, nor was [Sweigart’s] credibility essential to appell[ee’s] defense. Under the circumstances of this case, we do not believe that the [improper cross-examination and jury instruction high-lighting this matter] were material enough to require a new trial.” Commonwealth v. Frank, 263 Pa.Super. 452, 468 n. 8, 398 A.2d 663, 671 n. 8 (1979). Stated otherwise, the remarks may have been marginally improvident in this case, but they were certainly not such as to warrant a new trial as to Kelliher. See generally Commonwealth v. Guess, supra. This conclusion is buttressed by the fact that we have documentation at trial, in the charge to the jury and in the case of Commonwealth v. Krall, supra, to show that Bonnie Sweigart had been labelled as John Krall’s witness.

Additionally, we have read through Ms. Sweigart’s testimony and she makes no mention whatsoever of Kelliher. Thus, we do not have a scintilla of evidence linking Ke'lliher’s defense with Sweigart’s testimony. See Commonwealth v. Middleton, 320 Pa.Super. 533, 551, 467 A.2d 841, 850 (1983); cf. Commonwealth v. Barren, 501 Pa.Super. 493, 497, 462 A.2d 233, 234 (1983) (“It is well settled that an abstract comment uttered by a prosecutor during his closing statement which makes no specific reference to the accused does not constitute prosecutorial misconduct of such a nature as to necessitate a new trial. In the instant matter, the word ‘kinky’ was not applied to appellee.” [Citations omitted]); Commonwealth v. McQuaid, 273 Pa. Super. 600, 609, 417 A.2d 1210, 1215 (1980) (“This case does not assist appellant as the redacted statement of appellant’s co-defendant did not in any way implicate him.”); Commonwealth v. Hales, 384 Pa. 153, 156, 119 A.2d 520, 521 (1956) (Concurring Opinion by MUSMANNO, J.) (“the Presiding Judge allowed the trial assistant district attorney to put questions to the girl-defendant on the subject of her aunt’s conviction for murder, which certainly had nothing to do with the issue before the Court and jury... [H]ere the district attorney was attempting to suggest guilt by kinship, raising a possible inference that the defendant came from a family of murders, for whom homicide was common occupation and killing a routine.”). Accordingly, we fail to see the nexus between the impropriety involving Krall’s witness and the jury’s ability to render an impartial and judicially sound verdict as to Kelliher. See Commonwealth v. Middleton, supra.

Moreover, the jury was cautioned repeatedly to consider the evidence as to each of the accused and not to intertwine the two. Characteristic of this posture by the trial judge is his instruction, “If you have such a [reasonable] doubt regarding any of the elements of the crimes that I have defined for you, or the identity of the perpetrators of that crime or those crimes, then as to it or them, you should find the defendant or defendants, whatever the case may be, not guilty.” The trial court also advised the jury, “If you find the defendant, or at least one of them, guilty ...” they were required to go a step farther, as to the receiving stolen property charge, and determine the value of the item taken to aid the judge in sentencing the accused for a felony. {See N.T. 7/5-6/78 at 260 & 263)

Finally, as already noted, Sweigart’s testimony was not in any way “critical” to the prosecution’s case against Kelliher. Clearly, the testimony which led to his conviction was that of Kleinfelter, Harlan and Deck. The jury, obviously as is evident from the verdict, disbelieved Kelliher’s alibi defense. This was the right of the veniremen as the sole arbiters of fact.

We conclude that, given the instructions of the trial court, see Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981); Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980); Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1978), and, more importantly, in the absence of any association between Sweigart and Kelliher, the Order of the PCHA court is unwarranted. We perceive no “prejudice” inuring to the appellee because of the prosecution’s mis-step as to Krall’s witness.

Thus, the Order of the PCHA court is reversed and the judgment of sentence is left standing. Jurisdiction is relinquished.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring:

Although I agree with the result reached by the majority in the instant case, I would dispose of this appeal based on the fact that the issues raised by appellee have been finally litigated. 19 P.S. § 1180-4(a), reenacted at 42 Pa.C.S.A. § 9544(a). See also Commonwealth v. Hook, 300 Pa.Super. 181, 446 A.2d 290 (1982) (issue argued and decided adversely to defendant on direct appeal has been finally litigated and may not be raised collaterally in a P.C.H.A. proceeding).

      . See Memorandum Opinion filed June 20, 1980 by a panel of this Court and captioned Commonwealth v. Kelliher at Journal No. 2049 of 1979. It consists of 9 pages and specifically responds to Kelliher’s request for a new trial based on the prosecution’s inquiry of co-defendant Krall’s girlfriend’s arrest for retail theft and her ultimate placement in the Accelerated Rehabilitative Disposition program.

         Commonwealth v. Krall, [290] Pa.Super. [1], 434 A.2d 99 (1981).