author: WIEAND, Judge:

text:
    612 A.2d 1021
    Anthony MARINARI, Helen Marinari, his wife, Appellants, v. ASBESTOS CORPORATION, LTD. and GAF Corporation, a Delaware Corp. and Carey Canada, Inc. and the Celotex Corporation, Successor in Interest to Panacon Corporation and Philip Carey Manufacturing Company, Inc. and Raymark Industries, Inc. formerly Raybestos Manhattan and Eagle-Picher Industries, Inc. and Keene Corporation and Owens Corning Fiberglas Corporation and Armstrong World Industries, Inc. and Owens Illinois Glass Co. and Pittsburgh Corning Corp. and Charter Consolidated P.L.C. and Garlock and Melrath Gasket Company, Inc., wholly-owned subsidiary of Melrath Gasket Holding Company, Inc. a/k/a TNT Liquidating Co. and Melrath Gasket Holding Company, Inc. a/k/a TNT Liquidating Co. and Durabla and Anchor Packing Joseph Howell.
    Superior Court of Pennsylvania.
    Argued May 1, 1992.
    Filed July 20, 1992.

      Edward Rubin, Lansdale, for appellants.
    Fredric L. Goldfein, Philadelphia, for Asbestos Corp., appellee.
    Joseph W. McGuire, Philadelphia, for Owens Corning, appellee.
    James F. Hammill, Cherry Hill, N.J. and Philadelphia, for Keene Corp. and Owens-Illinois, Inc.
    Daniel G. Childs, Philadelphia, for Joseph Howell, amicus curiae.
    Before ROWLEY, President Judge, and WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   WIEAND, Judge:

The general issue in this asbestos exposure action is whether Pennsylvania, in the context of asbestos actions, shall be a one-disease or two-disease state. More specifically, the issue is whether the two year statute of limitations, 42 Pa.C.S. § 5524(2), bars an action for lung cancer where the action was filed within two years of the cancer diagnosis but four years after asymptomatic pleural thickening had been discovered on x-ray. After lengthy, careful consideration and research, we conclude that Pennsylvania must join a majority of jurisdictions which have adopted a “separate disease” rule in asbestos exposure actions. Plaintiffs discovery of a nonmalignant, asbestos related lung pathology, whether or not accompanied by clinical symptoms of impaired pulmonary function, does not trigger the statute of limitations with respect to an action for a later, separately diagnosed, disease of lung cancer.

Anthony Marinari worked as a laborer at the Philip Carey Manufacturing Company in 1928 and 1929 and at Alan Wood Steel from 1937 to 1972. He was allegedly exposed to asbestos dust at both workplaces. In 1983, a routine chest x-ray prior to hip replacement surgery revealed that Marinari had pleural thickening (diaphragmatic plaque-like pleural calcification). Marinari, however, was asymptomatic, i.e., he was not experiencing any discernible impairment of his lung function, and he elected not to pursue at that time an action to recover damages for the pleural thickening.

In July, 1987, Marinari was diagnosed as having lung cancer. In November of that year, he and his wife filed the present action for damages attributable to the cancer. In this action, the Marinaris did not seek to recover for the husband’s pleural thickening or any non-malignant condition attributable to asbestos exposure. Marinari died on December 31, 1987, and the action has since been pursued by Helen Marinari, the executrix of her deceased husband’s estate.

On May 23, 1990, the trial court, in response to defendants’ motions for summary judgment, held that the claim was barred by the two year statute of limitations, 42 Pa.C.S. § 5524(2), and granted summary judgment in favor of all defendants. Plaintiff appealed.

“A motion for summary judgment may properly be granted only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law.” Persik v. Nationwide Mutual Insurance Co., 382 Pa.Super. 29, 30-31, 554 A.2d 930, 931 (1989), citing French v. United Parcel Service, 377 Pa.Super. 366, 370, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). Instantly, the material facts are not in dispute. The only issue is whether, as a matter of law, the claim for lung cancer filed in 1987 had accrued in 1983 when pleural thickening was initially diagnosed and, therefore, was barred by the two year statute of limitations.

The trial court, in an opinion by the Honorable Albert R. Subers, expressed agreement with plaintiff’s contention that nonmalignant asbestos disease and cancer are separate diseases for which separate actions should be permitted. The court concluded, however, that it was constrained by the decision in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) (en banc) to hold that plaintiff’s suit was time barred.

In Cathcart v. Keene Industrial Insulation, supra, the Superior Court affirmed summary judgment in favor of defendants because the action for pulmonary asbestosis had been filed more than two years after diagnosis of the disease. The Court specifically rejected plaintiffs’ contention that pleural thickening, allegedly diagnosed one year after the asbestosis, gave rise to a separate cause of action. While the Court acknowledged that differences exist between pleural thickening and asbestosis, it nevertheless held that a second injury or separate complication arising from an original tortious act did not give rise to a separate cause of action. The Cathcart Court relied on the reasoning in Shadle v. Pearce, 287 Pa.Super. 436, 430 A.2d 683 (1981), and stated as follows:

In Shadle, a dentist’s failure to properly treat an abscessed tooth evidently caused the plaintiff to develop a heart condition known as bacterial endocarditis. When a valve transplant operation resulted in the plaintiff’s apparent complete recovery, he decided not to sue the dentist. More than two years after the plaintiff learned that the dentist’s negligence had caused his initial problem, the plaintiff developed an aortic aneurysm, which was evidently secondary to the valve transplant, and which rendered him totally incapacitated. In holding the claim for the second injury barred by the statute of limitations, the panel stated: “If we were to hold otherwise under the facts presented here, we would create a concept in the law which would permit an injured plaintiff to have a new limitations period commence for the initiation of an action for personal injuries as of the date when each complication or change in condition arose, despite the fact that no ‘new’ negligence has occurred which is attributable to the defendant. Such a concept would be contrary to the legislative intent inherent in the creation of periods of limitations in our law.” 287 Pa.Super. at 441, 430 A.2d at 685-86.

Cathcart v. Keene Industrial Insulation, supra at 148-149, 471 A.2d at 506. See also: Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 296, 450 A.2d 681, 688 (1982) (dictum that pleural thickening and asbestosis are not separate diseases subject to different limitations periods). Under the rule applied in Cathcart, Marinari’s cause of action for all present and future damages caused by asbestos exposure accrued at the time, in 1983, when pleural thickening was initially discovered. This rule, which has generally proven fair and workable in the context of actions for personal injury, has given rise to an unworkable process and a potential for unfair results in the context of asbestos litigation.

The rigid, single cause of action approach applied by the trial court in the instant case has been seriously eroded by the recent decision of the Superior Court in Manzi v. H.K. Porter Co., 402 Pa.Super. 595, 587 A.2d 778 (1991). There, the Court held that it had been proper for a trial court to instruct a jury that if it should determine that plaintiffs “pleural thickening or pleural plaques are not compensable ..., then if [plaintiff] gets cancer in the future, he can come back.”

The approach to asbestos litigation suggested in Manzi, of allowing an action for nonmalignant asbestos disease and a separate action for cancer, we believe, represents the better view. In such actions, recovery can be had in a first action only for a disease which has already manifested itself from the exposure to asbestos and the natural, predictable progression, if any, of that disease. If additional injuries from a separate disease manifest themselves in the future, such injuries will support a second action.

This approach has been adopted by a majority of the jurisdictions which have confronted the special problems created by asbestos litigation. See: Hagerty v. L & L Marine Services, Inc., 788 F.2d 315 (5th Cir.1986) (applying Louisiana law); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982); Fearson v. Johns-Manville Sales Corp., 525 F.Supp. 671 (D.D.C.1981); Miller v. Armstrong World Industries, Inc., 817 P.2d 111 (Colo.1991); Sheppard v. A.C. & S. Co., 498 A.2d 1126 (Del.Super.1985); aff'd sub nom., Keene Corp. v. Sheppard, 503 A.2d 192 (Del.1986); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. Dist.Ct.App.1985), review denied, 492 So.2d 1331 (Fla.1986); VaSalle v. Celotex Corp., 161 Ill.App.3d 808, 113 Ill.Dec. 699, 515 N.E.2d 684 (1987); Smith v. Bethlehem Steel Corp., 303 Md. 213, 492 A.2d 1286 (1985); Pierce v. Johns Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983); Devlin v. Johns-Manville Sales Corp., 202 N.J.Super. 556, 495 A.2d 495 (Law.Div.1985); Fusaro v. Porter-Hayden Co., 145 Misc.2d 911, 548 N.Y.S.2d 856 (N.Y.Sup.Ct.1989); Potts v. Celotex Corp. 796 S.W.2d 678 (Tenn.1990). See also: Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977) (under New Jersey law plaintiff may assert separate actions for thrombophlebitis and cancer allegedly caused by same drug); Martinez-Ferrer v. Richardson-Merrell, Inc., 105 Cal.App.3d 316, 164 Cal.Rptr. 591 (1980) (separate causes of action allowed for independent, non-simultaneous injuries of dermatitis and cataracts caused by same drug). Cf. Anderson v. Sybron, 165 Ga. App. 566, 353 S.E.2d 816, aff'd, 251 Ga. 593, 310 S.E.2d 232 (1983) (claim for cataracts allowed after plaintiff experienced other illnesses as result of exposure to same toxic gas, under theory of continuing tort); Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 399 N.W.2d 1 (1986) (discovery of asbestosis does not trigger statute of limitations on action for cancer); LaVelle v. Owens Corning Fiberglas Corp., 30 Ohio Misc.2d 11, 507 N.E.2d 476 (1987) (Ohio courts have not decided whether to allow separate actions for malignant and nonmalignant diseases but evidence of increased risk of cancer held inadmissible in action for asbestosis). Contra: Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir.1985) (under Texas law, plaintiff has only one indivisible action for all damages — past, present and prospective — caused by asbestos exposure); Joyce v. A.C. and S., Inc., 785 F.2d 1200 (4th Cir.1986) (under Virginia law, statute of limitation is triggered by manifestation of first asbestos related disease, and second action for separate, distinct and later occurring asbestos disease was untimely); Matthews v. Celotex Corp., 569 F.Supp. 1539 (D.N.Dak.1983) (rejecting analysis in Wilson v. Johns-Manville Sales Corp., supra, court held only one suit may be brought for all damages arising from asbestos exposure); Pecorino v. Raymark Industries, Inc., 763 S.W.2d 561 (Tex.App.1988).

Those jurisdictions which permit more than one action for separate asbestos related injuries have done so in recognition that asbestos exposure does not result in only one disease. The damage to the human body which may result from asbestos exposure does not occur as a seamless progression of a single pathology. Instead, exposure to asbestos may result in a variety of benign and malignant conditions, each of which may occur at widely divergent times. A non-exhaustive list and brief description of asbestos related diseases was recited by the Superior Court of Delaware in Sheppard v. A.C. & S. Co., supra, as follows:

I. Nonmalignant diseases.
A. Pulmonary asbestosis/Parenchymal asbestosis.
B. Asbestos-related pleural disease/Pleural asbestosis. Pleural thickening is one major development of asbestos-related pleural disease. Other manifestations ... include pleural effusion, hyaline plaques, and calcified plaques.
II. Malignant diseases.
A. Lung cancer/Pulmonary carcinoma/Bronchogenic carcinoma.
B. Mesothelioma (tumor of the mesothelial surface). Mansfield, Asbestos: The cases and the Insurance Problem, 15 Forum 860, 861-64 (1980);
The non-malignant diseases may result when the body reacts to the inhalation of asbestos fibers which become imbedded in lung or other tissue. The reaction consists of the body “walling off” the foreign matter with fibrous cells such that it eventually produces scar-like tissue which builds up over many years.
Pulmonary asbestosis or parenchymal asbestosis occurs within the lungs; pleural asbestosis occurs in the pleural cavity. Pleural thickening, one of the manifestations of pleural asbestosis, may occur independent of or in conjunction with pulmonary asbestosis. 15 Forum 860, 862-863. Each of the diseases, i.e., pulmonary asbestosis, asbestos-related pleural disease, lung cancer, and mesothelioma, is recognized as a separate, and distinct disease.

Id., 498 A.2d at 1128 n. 3, citing Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083-1085 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974). See generally: J. Selikoff and D. Lee, Asbestos and Disease (1978); Special Project, An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vanderbilt Law Rev. 573 (1983). One or more of these diseases may occur in any one person at various times because of differing and often prolonged periods between exposure and manifestation of the disease. Thus, the diseases may be discovered at very different points in time. J. Selikoff and D. Lee, Asbestos and Disease, supra, Chap. 10.

The problem in the context of asbestos litigation arises when, as in the instant case, the first manifestation of asbestos exposure is asymptomatic pleural thickening. In the presence of such a sub-clinical condition, plaintiffs are able to lead normal lives, remaining active with no pain or suffering and without any loss of the use of an organ or disfigurement. See: Manzi v. H.K. Porter, supra at 599, 587 A.2d at 780. See also: In Re Hawaii Federal Asbestos Cases, 734 F.Supp. 1563, 1567 (D.Hawaii 1990). Mild or asymptomatic pleural thickening, therefore, may not call for an award of compensatory damages. Nevertheless, plaintiffs in Pennsylvania, once informed of pleural thickening, have been required to act within the period of the applicable statute of limitations to make a claim for an asymptomatic condition and also for any and all predictable later diseases and/or injuries related to asbestos exposure. See: Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 437, 539 A.2d 871, 874 (1988) (plaintiff in asbestos action would be able to recover for his present injuries as well as for increased risk of cancer). See also: Howell v. Celotex Corp., 904 F.2d 3, 5 (3d Cir.1990).

Because of the problems existing in the situation where a plaintiff has been pulled into court to seek large sums as compensation for anticipated future diseases, even before an existing condition has ripened into compensable injury, the strict single action doctrine was relaxed as early as 1982 by the United States Court of Appeals for the District of Columbia in Wilson v. Johns-Manville Sales Corp., supra. The Wilson court held that the occurrence of asbestosis did not necessarily trigger the running of the statute of limitations on all separate, and later manifested diseases, such as malignant mesothelioma, which had been engendered by the same asbestos exposure. The court reasoned that:

Upon diagnosis of an initial illness, such as asbestosis, the injured party may not need or desire judicial relief. Other sources, such as workers’ compensation or private insurance, may provide adequate recompense for the initial ailment. If no further disease ensues, the injured party would have no cause to litigate., However, if such a person is told that another, more serious disease may manifest itself later on, and that a remedy in court will be barred unless an anticipatory action is filed currently, there will be a powerful incentive to go to court, for the consequence of a wait-and-see approach to the commencement of litigation may be too severe to risk. Moreover, a plaintiff’s representative in such a case may be motivated to protract and delay once in court so that the full story of his client’s condition will be known before the case is set for trial.
Our consideration of this appeal persuades us that a model or rule acceptable for more common personal injury actions may not be appropriate in latent disease cases. With respect to the statute of limitations issue before us, we conclude that a potential defendant’s interest in repose is counterbalanced and outweighed by other factors, including evidentiary considerations, securing fair compensation for serious harm, and deterring uneconomical anticipatory lawsuits. We therefore hold that the diagnosis of “mild asbestosis” received by Henry Wilson in February 1973 did not start the clock on his right to sue for the separate and distinct disease, mesothelioma, attributable to the same asbestos exposure, but not manifest until February 1978.

Id. at 120-121 (footnotes omitted). See also: Fearson v. Johns-Manville Sales Corp., supra at 674; Sheppard v. A.C. & S. Co., supra at 1133; Smith v. Bethlehem Steel Corp., supra at 233, 492 A.2d at 1296; Pierce v. Johns-Manville Sales Corp., supra at 666-667, 464 A.2d at 1027.

Other jurisdictions have recognized the likelihood of unfairly excessive or inadequate compensation because of the inherently speculative nature of the evidence employed to prove the possibility of future disease. The Florida District Court of Appeals, in Eagle-Picher Industries, Inc. v. Cox, supra, determined that evidence regarding a risk of future disease is always unacceptably speculative. Therefore, the court held that asbestos plaintiffs would not be permitted to seek damages for risk of future disease but could assert a second action for cancer if and when it occurred. The Florida Court reasoned persuasively as follows:

Allowing recovery of risk of cancer damages not only encourages anticipatory lawsuits but runs counter to the desirable goal that cases be decided on the best quality evidence available and that jury verdicts speak the truth. Courts which have held that the statute of limitations for asbestos-caused cancer begins to run when the cancer was or should have been discovered, rather than when the medically unrelated asbestosis was or should have been discovered, have recognized that evidence in latent disease cases tends to improve over the course of time. As the court in Wilson explained:
“[I]n situations involving the risk of manifestation of a latent disease, unlike the mine run of litigation, the evidentiary consideration counsels narrower delineation of the dimensions of a claim. Key issues to be litigated in a latent disease case are the existence of the disease, its proximate cause, and the resultant damage. Evidence relating to these issues tends to develop, rather than disappear, as time passes.”
684 F.2d at 119.
The speculative nature of the prediction of future damages — that a person with asbestosis will someday contract cancer — may lead to several inequitable results. First, the plaintiff who does not contract cancer gets a windfall-cancer damages without cancer. See Wilson v. Johns-Manville Sales Corp., 684 F.2d at 120 n. 45 (persons who contract asbestosis but not mesothelioma “will receive a windfall, and, in the aggregate, the defendant will overcompensate the injured class”). Second, and perhaps worse, an asbestosis plaintiff who is unsuccessful in his efforts to recover risk of cancer damages, but later contracts cancer, has the disease but no damages. Third, even plaintiffs who later contract cancer and who have recovered some amount of risk of cancer damages may emerge with an inequitable award, since the jury, cognizant of the less than one hundred percent chance that the plaintiff will contract cancer, likely will have awarded less than one hundred percent damages. Finally, inequitable awards are more likely to result from a future damages action simply because the damages cannot be known. If the disease has advanced — or even come into existence — the actual financial needs of the plaintiff can obviously be more accurately assessed. See Wilson v. Johns-Manville Sales Corp., 684 F.2d at 119.

Id., 481 So.2d at 523-524 (footnotes omitted).

A similar reasoning was employed by the United States Court of Appeals for the Fifth Circuit in Hagerty v. L & L Marine Services, Inc., supra. The plaintiff in Hagerty had sued under The Jones Act for injuries resulting from a workplace accident involving a soaking with toxic, carcinogenic chemicals while loading a barge. Applying federal law, the Court held that plaintiff could not recover damages for an increased risk of developing cancer and that damages for cancer would only be available in a future action if and when the disease occurred. The Hagerty Court stated that:

Even when there is evidence that the increased risk of cancer exceeds fifty percent, the rule does not work well. A plaintiff, if suffering any injury, is forced to seek cancer damages although the extent of those damages is yet highly speculative. They may be nothing at all because what was probable may not occur. The extent of the disease may be limited or the suffering and expenses may be enormous.

Hagerty v. L & L Marine Services, Inc., supra at 320.

We recognize that in Pennsylvania, courts have generally followed the rule that all claims against a defendant arising from a single transaction or occurrence must be asserted in a single action.. Spinelli v. Maxwell, 430 Pa. 478, 480-481, 243 A.2d 425, 427 (1968), citing Fisher v. Hill, 368 Pa. 53, 59-60, 81 A.2d 860, 864 (1951) and Fields v. P.R.T. Co., 273 Pa. 282, 284, 117 A. 59, 60 (1922); Hineline v. Stroudsburg Electric Supply Co., 402 Pa.Super. 178, 586 A.2d 455 (1991); Epstein v. State Farm Mut. Ins. Co., 312 Pa.Super. 542, 459 A.2d 354 (1983). See also: Pa.R.C.P. 1020(d)(1) and (d)(4). The equation of a single, nondivisible action with the transaction or occurrence from which it arises comports with the now established trend toward a transaction based analysis of claims and away from defining a claim in terms of the theory of recovery or the identity of separate harms. See generally: Restatement (Second) of Judgments, § 24 comment a. By our decision today we do not denigrate or weaken this analytical approach. The prohibition against splitting a single cause of action is designed to prevent delay, additional expense and the waste of resources which follow when litigation is fragmented. The doctrine serves to further the important objectives of finality and judicial economy. Spinelli v. Maxwell, supra at 481, 243 A.2d at 427; Hineline v. Stroudsburg Electric Supply Co., supra at 182, 586 A.2d at 456. See generally: 2 Goodrich-Amram 2d § 1020(d):l (1991).

A strict transaction based analysis, however, must yield when the judicial objectives underlying the same are outweighed by the need to effect a just result based upon proof rather than upon sheer speculation. The adjudicative process must ultimately serve the principle that a fair and just resolution of disputes depends upon a search for truth, based on factual, non-speculative evidence (the integrity of the process). Litigation by an injured citizen against another citizen must result in a recovery of adequate compensation by the one and payment by the other of no more than fair and just compensation (the fairness of the result). In latent disease cases, such as the instant case, these principles of fair adjudication are not well served by the “rules developed against the relatively unsophisticated backdrops of barroom brawls, intersection collisions and slips and falls____” Devlin v. Johns-Manville Corp., supra at 569, 495 A.2d at 503, quoting Martinez-Ferrer v. Richardson-Merrell, supra at 324, 164 Cal-Rptr. at 595. Fair resolution of claims for latent asbestos disease requires that we adopt a more enlightened approach and move

[a]way from a blind adherence to rigid concepts of what constitutes a cause of action and toward a set of rules which will enable plaintiffs to recover for just claims where that is possible without prejudice to defendants or insult to established rules of law, such as the merger aspect of the rule of res judicata.

Martinez-Ferrer v. Richardson-Merrell, supra at 327, 164 Cal.Rptr. at 597.

In order to accomplish just results in the resolution of claims for latent asbestos diseases, the rigid rules designed to limit plaintiffs to a single lawsuit must yield. Therefore, we today join a majority of jurisdictions which have responded to this difficult issue by holding that an asbestos plaintiff may assert, in a second lawsuit, a claim for a distinct, separate disease if and when it develops at a later time.

In reaching this conclusion we have not adopted the argument that asymptomatic pleural thickening is insufficient injury, as a matter of law, to support a cause of action. In Pennsylvania, the Supreme Court has said that “injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). See, e.g.: Manzi v. H.K. Porter Co., supra at 598, 587 A.2d at 779; Pounds v. Lehman, 384 Pa.Super. 358, 361, 558 A.2d 872, 873 (1989); Corbett v. Weisband, 380 Pa.Super. 292, 309, 551 A.2d 1059, 1068 (1988); Bickford v. Joson, 368 Pa.Super. 211, 214, 533 A.2d 1029, 1031 (1987); Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 428, 516 A.2d 53, 57 (1986). The physiologic changes evidenced by pleural thickening are a clear indication that damage which is objective and ascertainable has occurred to tissues in the thoracic cavity. Hence, we conclude that pleural thickening, even when asymptomatic, is an injury which gives rise to a cause of action.

Instantly, a cause of action accrued in 1983 for pleural thickening when appellant’s decedent was told that he had this condition. By his failure to file an action for pleural thickening within the two year period provided by the statute of limitations, the decedent waived only the cause of action for pleural thickening. The instant action is for cancer which was not discovered until 1987. This action is not barred by the statute of limitations. Therefore, defendants are not entitled to summary judgment.

Judgment reversed.

      . The urgent need for change in asbestos cases has been made strikingly apparent by the fact that appellees, Owens-Illinois Inc. and Keene Corp., as well as the trial court, have expressed agreement with appellant’s contention that Pennsylvania should adopt a “two disease” rule.

      . Where a harmful substance has produced only a physiologic reaction without actual functional impairment a trial court in New Jersey has questioned whether there exists an “injury” which will support a cause of action. See, e.g.: Ayers v. Jackson Township, 189 N.J.Super. 561, 461 A.2d 184 (Law.Div.1983), aff’d in part and rev'd in part on other grounds, 106 N.J. 557, 525 A.2d 287 (1987). The United States District Court in Hawaii has noted that a mere physiologic change without functional impairment may call for nothing more than nominal damages for a harmless but offensive contact. In Re Hawaii Federal Asbestos Cases, supra at 1567 n. 7, citing Keeton. Prosser and Keeton on the Law of Torts, § 9 at 40 (5th ed. 1985).


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    612 A.2d 1028
    COMMONWEALTH of Pennsylvania v. Anthony FIELDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed July 20, 1992.

      Bernard L. Siegel, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   ROWLEY, President Judge:

In this appeal from the judgment of sentence imposed following his conviction of murder in the first degree, Anthony Fielder raises three issues: 1) whether the trial court erred in allowing the Commonwealth to read into the record the prior, and allegedly hearsay, statement of a Commonwealth witness; 2) whether the trial court erred in permitting the Commonwealth to offer, in rebuttal, testimony that allegedly should have been introduced as part of the Commonwealth’s case-in-chief; and 3) whether the conduct of the prosecutor was so inflammatory and prejudicial as to deny appellant a fair trial. After reviewing the record and considering the arguments of the parties, we affirm the judgment of sentence.

In his opinion dated July 1,1991, the Honorable David N. Savitt summarized the facts concerning the homicide as follows:

On Saturday, September 23, 1989 at about 5:00 p.m. the victim, Jack Fauntleroy, was having an argument outside Skip’s Bar at 52nd and Market Street [in Philadelphia] with a man named Stefan. Stefan then went into the bar and came out with the defendant Anthony Fielder who began arguing with the victim. After a few minutes Alfonso Goldsmith, a friend of the deceased, intervened on behalf of him and began to argue with the defendant. The argument came to blows and when Goldsmith began to get the better of it the defendant left and went back into Skip’s Bar. A few minutes later the defendant emerged from the bar with a .38 caliber handgun and fired it at the fleeing victim hitting him in [sic] once in the leg and once in the back causing his death.

On February 15, 1990, appellant voluntarily surrendered to the police in the offices of Chuck Stone, Senior Editor of the Philadelphia Daily News. On January 8,1991, a jury found appellant guilty of first-degree murder and possession of an instrument of crime. Judge Savitt imposed a sentence of life imprisonment for the former offense and a concurrent sentence of one to two years imprisonment for the latter. Post-sentence motions were filed and denied, Judge Savitt reimposed both sentences, and this timely direct appeal followed.

Appellant’s first issue concerns the Commonwealth’s attempt to rebut defense counsel’s attack on the credibility of Commonwealth witness Alfonso Goldsmith by having Philadelphia Police Detective John Szymczak read into evidence portions of the statement given to him by Goldsmith several days after the homicide. On direct examination Goldsmith testified as follows: As he was getting off the elevated train or “el” at approximately 5:00 p.m. on September 23, 1989, he saw his friend Jack Fauntleroy “arguing with this guy named Stefan” on the corner of 52nd and Market Street. Stefan then went into a nearby bar and returned with appellant, known to Goldsmith as “Tone,” who “started shoving Jack around.” Goldsmith joined in the fight and hit appellant several times, at which point appellant and Stefan went back into the bar. Appellant then came out carrying a gun, and Goldsmith ran toward a delicatessen on the corner of 52nd Street. As he was running, he heard two shots, turned, and saw appellant chasing him with the gun in his hand. Goldsmith ran into the delicatessen and jumped behind a counter. After waiting there for ten or fifteen minutes, he returned to the scene of the altercation and saw Fauntleroy lying in the street, surrounded by a crowd of people.

As appellant explains in his brief, “It was an important part of the defense in the case to establish that it was as likely, if not more so, that the shooter was actually Alfonso Goldsmith ...” (Brief for Appellant at 15) rather than appellant. Before Goldsmith testified, the Commonwealth had called as a witness Latonia Shawver, who testified that she had seen the shooting as she waited for a bus. Although she had identified appellant as the shooter after seeing him in a lineup, it was a theory of the defense that her actual description of the shooter fit Goldsmith more closely than it fit appellant Significantly, Shawver also testified that she had seen the shooter in a car shortly before the shooting took place.

In his cross-examination of Goldsmith, therefore, defense counsel focused on Goldsmith’s appearance at the time of the shooting and also on the form of transportation that had brought him to the scene. When defense counsel asked Goldsmith, “When you arrived at the corner of 52nd and Market, you came in a car; didn’t you?” Goldsmith replied, “No, I didn’t.” Defense counsel challenged Goldsmith’s answer by reading the following portion of the statement that Goldsmith had given to Detective Szymczak on October 1, 1989:

Question: In your own words, tell me what happened leading up to the shooting of Fauntleroy?
Answer: I was getting out of a hack cab at the southeast corner of 52nd and Market. I saw Jack arguing with some black dude.

N.T. at 170. Goldsmith acknowledged that “that’s what it says,” that he had read Detective Szymczak’s transcription of his statement before signing it, and that he had made no corrections to it. Nevertheless, he insisted that the statement quoted above was wrong because he had not arrived at the corner of 52nd and Market in a car, but rather on the el. He added that “[t]he hack is right there by the el but I didn’t get out [of] the hack or no cab.”

As his first witness defense counsel called Detective Szymczak, whom he questioned in pertinent part as follows:

Q: Did [Alfonso Goldsmith] tell you how it was that he arrived at 52nd and Market Street on September 23, 1989?
A: He did.
Q: What did he tell you?
A: I asked the question, in his own words, would he explain to me how he became aware of the death of Mr. Fauntleroy.
In his own words, in longhand, I wrote a statement. He told me that he arrived at 52nd and Market Street through a hack. At that point, I asked him what a hack was, and he said it was a cab, and that’s how I distinguished what a hack was.
Q: After you had completed your interview of Mr. Goldsmith, in handwriting, did you show it to him to review?
A: I did.
Q: That’s standard practice; isn’t it?
A: Yes, sir.
Q: Did you tell him that he had the right to make corrections to anything that he read?
A: I did.
Q: Did he correct any aspect of what you just said about how he arrived; namely, in a cab?
A: No.

N.T. at 278-80.

The testimony that appellant now alleges was inadmissible hearsay occurred during Detective Szymczak’s cross-examination by Assistant District Attorney Richard Sax, which we quote at length:

Q: Mr. Goldsmith told you he got out of a hack and was at the corner of 52nd and Market Street; is that correct?
A: That’s correct.
Q: And did he tell you — he told you, it was at that point, that he saw Jack; is that correct?
A: That’s correct.
Q: I would ask you to refer to the statement. Did he tell you what he saw Jack doing when he first saw Jack?
[Defense Counsel Bernard] Siegel: I object, your Honor. This is beyond the scope.
The Court: Well, I don’t think it is. You asked him questions concerning the statement of a particular individual. I think the District Attorney can inquire further under those circumstances.
Mr. Siegel: I would simply note that the inquiry was limited to a particular aspect.
The Court: I understand, but that opens the door for the statement.
By Mr. Sax:
Q: Did he tell you what he saw Jack doing when he saw Jack?
A: Goldsmith stated that he saw Jack arguing with some black dude.
Q: Those were Mr. Goldsmith’s words?
A: Yes.
Q: Did he tell you what that man’s name was who [sic] he saw Jack arguing [with]?
A: Again, Goldsmith stated to me “I later learned his name was Stefan,” and I spelled it STEFON.
Q: Did he tell you ... what they were arguing over or what he thought they were arguing over?
A: He thought that they were arguing—
Q: What were his words?
A: “I think they were arguing over a crap game or money. I stood and watched them.”
Q: Did he tell you where Stefan went ... ?
A: He did.
Q: Where did he tell you, in his words, where Stefan went?
A: “Then Stefan went into the bar, Skip’s Bar, and right back out again, enough time to tell somebody something.”
Q: Did he tell you anything about who came out of the bar?
A: “Stefan just stood there and Tone come out and got into Jack’s face.”
Q: Did Mr. Goldsmith tell you what, if anything, he, Mr. Goldsmith, did at that point in time?
A: He did. “That’s when I got in Tone’s face and told him to get out of Jack’s face because he,” referring to Jack, “was high.”
“Tone hit me once, and I swung back. I hit him once or twice but I swung several times. He kept backing away. We was on the sidewalk, like between the two bars, Skip’s and the Butterfly.
“Jack was there, like watching the boy Stefan.”
Q: Did he tell you anything further about what he saw Tone do?
A: He did. He went on to say “Tone went into the bar,” and in parenthesis, I put “Skip’s Bar [“ ”] for about a minute or two, then come back out and stood in the doorway.
“I saw he had a gun in his left hand, down by his side.”
He continued to say “I’ve been shot three different times, so I sees the gun and me and Jack run, and I heard two gunshots. Then I turned towards Tone and sees Tone pointing the gun and I ran. I ran down 52nd Street north and into a deli, which is located at 52nd and Filbert Streets.
“There was a bunch of dudes in the doorway of the deli, and I told them to get out of my way. I went in and jumped behind the counter.
“I turned a couple of times and Tone was on me and he still had the gun. That’s why I went into the deli. If he hadn’t been on me, I would have run down 52nd Street.”
Q: By “down 52nd Street,” did you understand him to mean continuing north?
A: Yes. I understood him to mean north when he directed my attention that way.
Q: Did he tell you how long he was in the Penn Deli and what he did upon leaving the Penn Deli?
A: He did. Continuing, “About five minutes later, I asked somebody in the restaurant, and they said the boy was gone, so I went back up to Market, and saw Jack laying on the street and the paramedic was there pushing on his chest.
“Jack didn’t say anything to me. He was coughing. I heard, while I was in the deli, that the boy Stefan was stomping him while Jack was on the ground.”
Q: Did you ask Mr. Goldsmith to look at any photographs?

N.T. at 281-85. At this point defense counsel objected, a sidebar discussion ensued, and the objection was sustained. Mr. Sax then continued his cross-examination of Detective Szymczak:

Q: Did you ask him who shot Jack?
A: I did.
Q: What was his answer?
A: That was the completion of the narrative. Then I began questions and answers. I did ask him. “Who shot Jack” was my question. His answer, his response was “Tone. Tone had the gun.”

N.T. at 289.

Appellant concedes that a prior consistent statement may be used to rehabilitate a witness if the statement is limited to the specific subject matter on which the witness has been challenged during cross-examination. He contends, however, that because the portions of his statement read by Detective Szymczak, as quoted above, did not concern the mode of transportation by which he arrived at the scene of the homicide, evidence as to that portion of the statement was hearsay not within any recognized exception, and its admission was error entitling him to a new trial.

It is hornbook law that hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Packel & Poulin, Pennsylvania Evidence, § 801 (1987); Commonwealth v. Smith, 402 Pa.Super. 257, 268, 586 A.2d 957, 963 (1991). The material at issue consisted of out-of-court statements offered, as we infer from the record, to bolster Goldsmith’s credibility in response to defense counsel’s attempted impeachment by showing that the remainder of Goldsmith’s statement was largely in accord with his trial testimony and by showing that Goldsmith’s statement had been accurately told to and recorded by Detective Szymczak.

It has been suggested that when prior consistent statements are offered for the purpose of rehabilitating a witness whose credibility has been attacked, they are not hearsay. Packel & Poulin, supra, § 801.6; Commonwealth v. Willis, 380 Pa.Super. 555, 573, 552 A.2d 682, 691 (1988) (en banc) (plurality), alloc. denied, 522 Pa. 583, 559 A.2d 527 (1989). It has also been held, however, that such statements are hearsay and admissible only as an exception to the hearsay rule. See Commonwealth v. Hutchinson, 521 Pa. 482, 487, 556 A.2d 370, 372 (1989); Commonwealth v. Griffin, 511 Pa. 553, 568, 515 A.2d 865, 872 (1986), cert. denied, Griffin v. Pennsylvania, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Havasy v. Resnick, 415 Pa.Super. 480,-, 609 A.2d 1326, 1332 (1992); Commonwealth v. Smith, supra.

We are persuaded that, regardless of how the evidence at issue is categorized, appellant has not shown that the admission of the evidence was improper. In Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980), our Supreme Court considered a claim similar to that involved here. In that case Philadelphia Police Officers George Ghee and Milton McCall were assigned to transport appellant Jose Cruz to homicide headquarters after appellant claimed to have information concerning the murder two years earlier of one Dennis Bishop, who had been stabbed and strangled. En route appellant informed the officers that several years earlier he had grabbed a man around the neck while one Glenda Swift stabbed the man repeatedly with an ice pick. Appellant was later charged with the murder of Bishop. At trial Officer Ghee testified on direct examination that on the drive to headquarters appellant made an inculpatory statement, namely, that Swift stabbed Bishop so quickly that he (appellant) had to move his arm to avoid being stabbed himself. During cross-examination defense counsel established that Officer Ghee had given to Detective Floyd Gallo a statement about what appellant had said and that Ghee’s statement did not include appellant’s comment about moving his arm to avoid being stabbed. Over defense counsel’s objection the trial court permitted the Commonwealth to read into evidence as a prior consistent statement Officer Ghee’s entire statement to Detective Gallo. Appellant argued on appeal that the prior statement was inadmissible hearsay. The Supreme Court resolved the issue as follows:

It is well-established that a trial court may, in its discretion, permit introduction of a prior consistent statement of a witness in order to rebut a claim of recent fabrication in the witness’s trial testimony. Here, by bringing out the fact that a portion of Officer Ghee’s trial testimony was not contained in his statement to Detective Gallo, defense counsel clearly advanced recent fabrication. Therefore, it was not error for the court to permit the Commonwealth to rebút the claim of recent fabrication by introducing Officer Ghee’s prior consistent statement. Moreover, since the statement at issue was first employed by defense counsel in an effort to impeach the Commonwealth’s witness, the court properly exercised its discretion in admitting the entire statement to show there was no inconsistency and no other difference between Officer Ghee’s out-of-court statement and his trial testimony. See Commonwealth v. Marino, 213 Pa.Super. 88, 245 A.2d 868 (1968), cert. denied, 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771, rehearing denied, 396 U.S. 871, 90 S.Ct. 46, 24 L.Ed.2d 129 (1969).

Id. at 566, 414 A.2d at 1036 (additional citations omitted).

Similarly, in Commonwealth v. Marino, cited in Cruz, supra, appellants “demanded of the District Attorney every statement Singer [allegedly the victim of blackmail and extortion] had made and they used everyone [sic] to show he had made conflicting statements.” Id. 213 Pa.Super. at 105, 245 A.2d at 876. This Court held that since parts of these statements had been disclosed through the efforts of appellants’ counsel to discredit the witness, “the other portions relevant to the subject matter were admissible in their entirety” as prior consistent statements. Id. at 105, 245 A.2d at 876. We conclude that the same result is warranted in the present case, and that the trial court’s ruling was not error.

Appellant’s second issue concerns the trial court’s decision to permit the Commonwealth to call a rebuttal witness. During its case in chief the Commonwealth, as noted above, presented evidence that appellant came out of Skip’s Bar with a gun just before Fauntleroy was shot. To counter this evidence, the defense called George Manley, the manager of the bar. Manley testified that he had seen appellant on the day in question and that appellant was not carrying a gun, but that another man who came into the bar that day, whose name he did not know, was carrying a gun. On cross-examination Manley denied that appellant kept a gun behind the bar of Skip’s Bar.

The prosecutor later informed the court that he intended to call as a rebuttal witness Tishira Fauntleroy, the victim’s sister, who had just informed him that she had often seen appellant keep his gun in Skip’s Bar. Fauntleroy had been sequestered during Manley’s testimony. The court indicated that her testimony would be proper rebuttal, and defense counsel said, “I don’t see how I can object.” When trial resumed several days later, however, defense counsel indicated that in fact he did object to the proposed testimony because it was the type of evidence that should have been introduced in the Commonwealth’s case in chief. The prosecutor responded by saying that he did not learn of the evidence until after the Commonwealth’s case had been closed. The court observed:

Ordinarily, I would agree with you, Mr. Siegel. If the Commonwealth had this evidence before trial, it should be introduced as part of their case in chief, that they would be able to show a witness who saw a gun — well, I’m not even sure of that. Let me consider it.

N.T. at 349. At a later point the court said:

[M]y inclination is to permit the testimony, and I will explain why, but I’m not making that decision right this moment because it isn’t ripe for decision, so ... if there’s anything further either of you has to say on that subject, I’ll hear you, and I will explain the reasons for my determination when and if it becomes necessary, and that’s when the defense closes and the Commonwealth witness is, indeed, being called, and then you can renew your objection, Mr. Siegel, and it will be ripe for determination.

N.T. at 353.

After the defense rested, the Commonwealth called Tashira Fauntleroy, who testified that on many occasions she had seen appellant enter Skip’s Bar, place a gun behind the bar near the cash register, and retrieve the gun when he left. On cross-examination she stated that she had given this information to a detective “[r]ight after my brother was killed,” that she believed the information was included in the statement that she signed, and that she had not repeated it to the prosecutor, Mr. Sax, because she thought he would have seen the statement that she had given to the detective. After being shown her signed statement by defense counsel, she admitted that it contained no reference to appellant keeping a gun in Skip’s Bar. Defense counsel and the court then asked the witness additional questions concerning appellant’s alleged practice of placing a gun behind the bar.

Appellant asserts that “the trial court had correctly determined to exclude the proposed rebuttal, and would have done so had the Commonwealth not incorrectly represented” (Brief for Appellant at 22) that it had not known of Fauntleroy’s evidence in time to introduce it during its case in chief. As the Commonwealth points out in its brief, defense counsel never renewed his objection to Fauntleroy’s testimony. Nevertheless, appellant’s post-trial motions include the claim that the trial court erred in permitting the Commonwealth to introduce the evidence, and the trial court addressed the issue in its opinion of July 1, 1991.

Assuming for the sake of argument that the issue has been properly preserved, we conclude that it is without merit. The record does not support appellant’s claim that the Commonwealth was aware of Fauntleroy’s information prior to trial. Although Fauntleroy testified that she told the detective about appellant’s habit of leaving his gun behind the bar, no such information is included in her signed statement. If in fact she gave such information to the police, the information was evidently not conveyed to the District Attorney’s Office and knowledge thereof cannot be attributed to the prosecution. See Commonwealth v. Bonacurso, 500 Pa. 247, 251 n. 3, 455 A.2d 1175, 1177 n. 3 (1983), cert. denied, 462 U.S. 1120, 103 S.Ct. 3090 (1983) (where detective, considering witness’s statements unimportant, did not include them in materials submitted to District Attorney’s Office before trial, Commonwealth will not be held to have violated discovery rules by failing to provide statements, which it did not possess and of which it was unaware, to defense). On these facts, we conclude that appellant is not entitled to relief.

In his final issue, appellant argues that the prosecutor’s conduct tainted the proceedings to the point that he did not receive a fair trial. Our Supreme Court recently discussed the issue of prosecutorial misconduct in the context of a request for a new trial:

Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. Rather, the focus is on what, if any, effects the comments had on the jury. A new trial is required when the effect of the [prosecutor’s] 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. Further, this decision is for the trial court to make. Our role is to determine solely whether the trial court abused its discretion.

Commonwealth v. Faulkner, 528 Pa. 57, 77, 595 A.2d 28, 39 (1991) (citations and internal quotation marks omitted).

Appellant first challenges the prosecutor’s conduct in questioning the Commonwealth’s own witness, Leon McRae, who was working in the delicatessen at the time of the shooting. McRae testified that two men had run into the delicatessen, one following the other, and that “as the [first] guy jumped over the counter, the other guy was walking out the door.” He added that as the second man was leaving, “[h]e looked as if he was putting the gun away, you know, stuffing something in the back of his jacket____” Asked “Stuffing what in the back of his jacket?” the witness replied, “I think it was a gun.” Defense counsel’s objection to that reply was sustained, and additional objections were sustained as the prosecutor continued to ask questions about whether the witness had seen a gun. The prosecutor then asked the witness to review the statement that he had given to the police, and the following exchange took place:

Q: Didn’t you tell the detective “Another guy came in behind him and the second guy was putting a gun somewhere in his back, like in his pants or something.” Didn’t you tell the detective that? Yes or no.
A: Yes, I did.
Q: You did not say to the detective I think it was a gun, it looked like a gun, Fm not sure whether it was a gun. Mr. Siegel: Objection.
By Mr. Sax:
Q: Did you?
Mr. Siegel: Objection.
The Court: Fm going to sustain that last question. In other words, that’s what you said; is that correct?
The Witness: Yes.
The Court: You didn’t say . anything other than that. The Witness: No.
The Court: You didn’t tell the detective that you didn’t actually see it?
The Witness: I told him exactly. I told him I didn’t actually see it. I told him it looked, it appeared that he was putting the gun away.

N.T. at 224-25. The prosecutor returned to the same line of questioning on redirect. Taking these statements in context, and noting that it was the Commonwealth’s own witness whose testimony was called into question, we conclude that the prosecutor’s questioning of the witness was not so egregious as to prejudice the jury against appellant.

Appellant contends that the prosecutor’s cross-examination of George Manley, the manager of Skip’s Bar, was even more unprofessional. The prosecutor attempted to show Manley’s favorable bias toward appellant, as the following exchange demonstrates:

Q: Within minutes after closing the door, Jack Fauntleroy is lying shot in the back twice—
Mr. Siegel: Objection.
The Court: Sustained. Stop that. Stop that.
Mr. Sax: Fm asking him a question.
The Court: Stop that. You are not asking the witness questions the way a lawyer in a court of law should do it. Mr. Sax: It’s cross examination, Judge.
The Court: Now, look. Don’t start an argument with me. That’s an improper question. That’s the way you might hear it done on some T.V. station. That’s not the way it’s done here and don’t—
Mr. Sax: I don’t watch TV, Judge.
The Court: You may argue when the time comes to argue. You may ask this witness questions in a respectful way.
Q: You also found out that the word all around was that Tone [appellant] had did the shooting, right?
Mr. Siegel: Objection.
The Court: Sustained. Now, don’t do that.
Mr. Sax: Don’t do what, ask questions?
The Court: Because that’s clearly hearsay and it is clearly inappropriate, what he might have heard in the community. Now, stop it. You are getting very close to a mistrial. Stop it.
Q: Did you ever find out that it was the defendant, the person who [sic] you had seen hundreds of times inside your bar who was involved in any way in this murder?
Mr. Siegel: Objection. That’s the point of this trial.
The Court: Sustained. Sustained. Now go on.
Mr. Sax: Did you find out or not?
The Court: Sustained. It’s not important. It’s not relevant.

N.T. at 312-16. The prosecutor’s continual asking of improper questions eventually led the court to admonish him, in a conference held outside the hearing of the jury, that his actions were disrespectful to the court and that he was coming close to a mistrial.

We do not agree with the Commonwealth’s assertion that “[t]he prosecutor’s questioning, designed to demonstrate Mr. Manley’s protection of his friend, was proper advocacy” (Brief for Appellee at 15). However, as the trial court points out, “[although these questions were improper the objections to them [were] sustained by this court and they remained unanswered” (Trial Court Opinion at 3). In addition, the court instructed the jury that only the witness’s answers, not the questions asked of him, constitute evidence. We are satisfied that the court’s actions were sufficient to prevent the prosecutor’s conduct from prejudicing the jury.

Finally, appellant alleges misconduct by the prosecutor in the following portion of his closing argument:

Goldsmith, the shooter? Put Alfonso Goldsmith in the lineup if any of you think Alfonso had anything to do with the shooting of Jack Fauntleroy. This is not about Japanese movies and Stefan not being present.
Now, wait a second. I’m not suggesting the defense has any burden to do anything here but Stefan is the defendant’s associate, not Jack’s or not Nike’s [Alfonso Goldsmith’s].
Mr. Siegel: Objection.
The Court: The objection is sustained. No witness must be called by either side and you cannot draw an unfavorable inference against either side by the failure to call a particular witness.

N.T. at 546-47. Appellant argues that “[t]he clear import of this improper remark was to state that the person referred to as ‘Stefan’ was someone who could clear the Defendant, and to ask why the defense had not called him” (Appellant’s Brief at 33). Appellant notes that one of the questions asked by the jury during the course of their deliberations was “Was Stefan ever locatedf?].”

Although the trial court sustained defense counsel’s objection to the prosecutor’s remark about Stefan, the court states in its opinion that none of the prosecutor’s closing remarks was improper. We agree that the remark at issue here was not improper. During his closing argument defense counsel referred to Stefan as follows:

Mr. Manley as well as Mr. Goldsmith talked about a gentleman by the name of Stefan____ We haven’t seen him. We certainly haven’t seen him in this courtroom. We don’t know what he looked like and how he was dressed, but from what you heard, he certainly had an axe to grind against Mr. Fauntleroy as well.

N.T. at 494. It is evident, therefore, that in mentioning Stefan the prosecutor was merely responding to defense argument, as is proper. See Commonwealth v. Kelly, 319 Pa.Super. 204, 211, 465 A.2d 1301, 1304 (1983). We conclude that appellant’s claims of prosecutorial misconduct, taken singly or together, do not entitle appellant to a new trial.

Judgment of sentence affirmed.

      . We are aware that defense counsel’s objection at trial did not include any assertion of hearsay, but consisted solely of the claim that the evidence which the Commonwealth sought to introduce was “beyond the scope” of his inquiry concerning Goldsmith’s statement. Nevertheless, we will address appellant’s hearsay argument in the interest of judicial economy.


author: BROSKY, Judge.

text:
    612 A.2d 1037
    COMMONWEALTH of Pennsylvania, v. Cyd Charrise BERGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1992.
    Filed July 22, 1992.
    Reargument Denied Sept. 18, 1992.

      Thomas Livingston, Pittsburgh, for appellant.
    Maria V. Copetas, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

Cyd Charrise Berger appeals from the July 30, 1991 trial court order denying her petition under the Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S. §§ 9541-9551 (Repealed April 13, 1988). In two separate informations she was charged with the first-degree murder of Robert Karcz, receiving stolen property, theft, conspiracy, robbery, credit card theft and hindering apprehension or prosecution. On June 12, 1981 she retained Claudia Sharon, Esquire, and a motion to suppress statements, that were allegedly the product of duress and coercion and that involved a violation of her Miranda rights, was filed. On June 16, her motion to sever her case from that of her co-defendants was granted. At the conclusion of a September 9 and 10, 1981 suppression hearing, before the Honorable Samuel Strauss of the Court of Common Pleas of Allegheny County, appellant’s motion to suppress was withdrawn. On October 15, 1981 the charges of receiving stolen property and hindering apprehension or prosecution were dismissed.

At Allegheny County Criminal No. CC8008057 of 1980 appellant was tried by a jury and on October 22, 1981 convicted of first-degree murder, robbery, credit card theft and conspiracy. On November 2, 1981, regarding Allegheny County Criminal No. CC8008137 of 1980, she pled guilty to theft by unlawful taking and conspiracy. Appellant’s post-trial motions were denied on November 15, 1983. On November 22, 1983 appellant was sentenced to a mandatory term of life imprisonment regarding the first-degree murder conviction, a two and one-half to five year concurrent term of imprisonment regarding the theft by unlawful taking conviction and an identical sentence regarding the conspiracy conviction. Appellant was separately sentenced regarding the robbery conviction; she received a ten to twenty year term of imprisonment.

On December 8, 1983 the office of the Allegheny County Public Defender was appointed to represent appellant. An appeal was filed to this Court on December 21, 1983. Commonwealth v. Berger, 355 Pa.Super. 630, 509 A.2d 1318 (1986). On February 18, 1986 a panel of this Court, in a memorandum opinion, affirmed appellant’s judgment of sentence. Appellant’s subsequent petition for allowance of appeal to our Supreme Court was denied. Commonwealth v. Berger (No. 136 W.D.1986, filed November 13, 1986).

On July 6, 1987 appellant filed a pro se PCHA petition. The Public Defender’s office was permitted to withdraw as counsel and on October 15, 1987 Thomas Livingston, Esquire, who is, appellant’s current counsel, was appointed to represent appellant. On August 20, 1990 counsel filed a supplement to appellant’s PCHA petition. On July 24, 1991 the trial court conducted a PCHA hearing and on July 30, 1991 the Honorable Donna Jo McDaniel, of the Court of Common Pleas of Allegheny County, denied appellant’s PCHA petition. Appellant then filed the instant appeal. Appellant’s statement of questions involved is as follows.

1. After eliciting evidence at trial which plainly gives the jury a “possible basis” for finding the affirmative defense of duress under 18 Pa.C.S. § 309(a), whether trial counsel was ineffective in failing to place the duress defense before the jury — through requested points for charge, closing argument and objections to the court’s final jury instructions — in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and in violation of Article I, Section 9 of the Pennsylvania Constitution?
2. Where the evidence at trial plainly gives the jury a “possible basis” for finding the affirmative defense of duress under 18 Pa.C.S. § 309(a), whether the failure of trial counsel to place the duress defense before the jury deprives the appellant of a fair jury trial and due process, in violation of the Fourteenth Amendment to the United States Constitution, and in violation of Article I, Sections 6 and 9 of the Pennsylvania Constitution?
3. Whether the failure of counsel on direct appeal to detect, present and argue the foregoing ineffectiveness and fair jury trial/due process claims is also an instance of ineffectiveness, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and in violation of Article I, Section 9 of the Pennsylvania Constitution?
4. In reviewing the foregoing issues, whenever the lower court errs by failing to apply to [Sic] correct standard of review, i.e., by failing to ask whether some portion of the evidence gives the jury a “possible basis” for finding the § 309(a) duress defense?

Appellant’s Brief at 3. The duress of which appellant speaks is that which was allegedly exerted upon her by one of her co-defendants, Dwayne Hicks. In this appeal appellant is averring that Hicks coerced her to participate in the murder of Robert Karcz. We affirm the order of the trial court.

In order to be eligible for relief under the PCHA, a person must prove, pursuant to 42 Pa.C.S. § 9543 (Repealed),

(3) That his conviction or sentence resulted from one or more of the following reasons:
(vi) The denial of his constitutional right to representation by competent counsel.
(xii) The abridgement in any other way of any right guaranteed by the constitutions or laws of this Commonwealth or of the United States, including a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right.

Our scope of review, when examining a post-conviction court’s grant or denial of relief is limited to determining whether the court’s findings were supported by the record and the court’s order is otherwise free of legal error. Commonwealth v. McClucas, 378 Pa.Super. 202, 548 A.2d 573 (1988). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

Ineffectiveness is established if the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Next, if appellant’s claim does have arguable merit, we must determine whether counsel’s failure to pursue the matter had some reasonable basis designed to serve the interests of his client. Id. Finally, if the record reveals that counsel was ineffective, it must be determined whether appellant has demonstrated that counsel’s ineffectiveness so prejudiced the appellant’s case that it is likely that the result would reasonably have been different absent the errors. Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395 (1987), appeal denied at 518 Pa. 618, 541 A.2d 745 (1988).

The burden of establishing ineffective assistance of counsel rests upon the appellant since counsel’s representation is presumed to be effective. Commonwealth v. Jones, 389 Pa.Super. 159, 566 A.2d 893 (1989). Appellant must demonstrate that counsel’s omission or commission was arguably ineffective and the likelihood that appellant was prejudiced as a result thereof. Id.

18 Pa.C.S. § 309 states,
(a) General rule. — It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
(b) Exception. — The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

The evidence adduced at appellant’s trial is as follows. On October 27, 1980 the Pittsburgh Police found the body of Robert Karcz in a wooded area in the Oakland-Squirrel Hill section of Pittsburgh; he had been strangled. On November 8, 1980 appellant, aware that the police were searching for her, co-defendant Dwayne Hicks and co-defendant Tracy Saunders, turned herself in to Pittsburgh Police detectives. She averred to the police that she was an innocent bystander to the murder of Robert Karcz and that she simply helped Hicks load the victim’s body into an automobile for disposal in the wooded area in which it was found by police.

Appellant began dating Hicks in 1976; she was working at Equibank in Pittsburgh. She testified that soon after moving in with Hicks he coerced her into working as a street prostitute; she testified that she continued to work, as a prostitute, due to beatings administered by Hicks and his threats of further beatings. Hicks moved from Pittsburgh and spent eight months in the United States Marine Corps. When he returned, appellant, who testified that she believed Hicks’ nature had changed, again moved in with him. She was again beaten, and, forced to work as a prostitute. Subsequently, Saunders moved in with appellant and Hicks (Hicks now had two lovers residing with him). The trio moved to California but appellant returned, alone, to Pittsburgh. Hicks and Saunders returned to Pittsburgh and, after a telephone call from Hicks, appellant again moved in with the couple, was beaten by Hicks, and, continued to prostitute herself. Appellant testified that Hicks stated that he would kill her if she left him. Appellant also testified that Hicks threatened to harm appellant’s children, who lived with appellant’s parents. Hicks also beat Saunders and eventually coerced her to work as a prostitute.

In the fall of 1980 Hicks became aware of an arrest warrant that had been issued for him regarding an unrelated burglary charge. Appellant told Hicks that he should leave the Pittsburgh area rather than turn himself in to the police. N.T., October 15, 1981, at 367. Hicks decided that he, appellant and Saunders would need a car and money in order to flee Pittsburgh. Saunders, who was working as a prostitute, agreed to find a “customer” and bring him back to the trio’s residence so that Hicks could rob him and take possession of his car. Id. Before Saunders left the apartment appellant told her that Hicks intended to kill the “customer.” Id. at 368. Hicks told appellant that stabbing the customer would leave deposits of his blood in the apartment; appellant suggested that Hicks strangle the customer. N.T., October 20, 1981, at 179-180. Appellant’s suggestion was made three and one-half hours before the killing.

Hicks and Saunders went to the Liberty Avenue section, recognized as the “red-light” district, of downtown Pittsburgh to find a victim; appellant remained at the apartment. Hicks purchased handcuffs and a pellet gun and returned to the apartment. He tested the handcuffs and fired the pellet gun in the apartment; appellant cautioned him not to fire it again since a neighbor could possibly call the police. Id. at 183. Saunders brought the victim back to the apartment and had him disrobe. Hicks entered the room, handcuffed the victim and strangled him. Appellant and Saunders were in another room; appellant informed Saunders that Hicks was strangling the victim. A bucket of water sat in the room where the strangling occurred. Saunders asked what the bucket was to be used for; appellant replied that the victim’s head would be placed in the bucket and that he would be drowned. N.T., October 15, 1981, at 383-384. After the victim was deceased Saunders asked appellant why the victim’s skin had turned “dark”; appellant replied that, “that is the color that you turn when you are dead.” Id. at 385-86. Hicks and appellant wrapped the victim’s body in a blanket; Saunders testified that she could not bring herself to assist them. Appellant directed Hicks to remove the handcuffs from the victim’s body since the trio’s collective fingerprints may have been inadvertently placed upon the handcuffs. Id. at 386. The victim’s wallet, car keys and credit cards were taken. Hicks took the victim’s body to a wooded area and left it. Appellant and Saunders cleaned and straightened the apartment and rummaged through the victim’s personal effects. When Hicks returned to the apartment he told the women that he deposited the victim’s body in Pittsburgh’s Schenley Park. Appellant told Hicks that he should have “threw [Sic] it [the body] in the river” where it would remain undetected for a longer period of time. N.T., October 20, 1981, at 196. Appellant suggested that the trio not leave Pittsburgh until the following day so that they could utilize the victim’s credit cards.

The next day the trio purchased items with the credit card; appellant sat alone in the victim’s car during one of the purchases at a shopping mall. A period of time later Hicks entrusted appellant with the car and fifty dollars and directed her to fill the car’s gasoline tank. Unaccompanied, she conducted several errands with the car. Hicks and Saunders left Pittsburgh that evening; appellant stayed alone at the apartment. The two returned a day or two later and Hicks stated to appellant that she could remain in Pittsburgh or leave with them; she chose to accompany them to Atlanta, Georgia. After three days in Atlanta, more beatings from Hicks and work as a prostitute appellant returned to Pittsburgh and turned herself in to police. She then participated in a police operation that culminated in the capture of Hicks.

Although appellant has framed her argument in four separate issues they are merely a repetition of only one issue: Whether her trial counsel was ineffective for failing to assert a duress defense (“through requested points for charge, closing argument and objections to the [trial] court’s final jury instructions”). Appellant’s Brief at 3.

Our Court has held that duress is a defense to all criminal activity except first degree murder. Commonwealth v. Morningwake, 407 Pa.Super. 129, 595 A.2d 158 (1991), alloc. den. at 600 A.2d 535. The Court stated,

The defense of duress is generally available to a defendant charged with any crime except one which involves taking the life of an innocent person. The three elements which must be shown to establish a duress defense are: (a) an immediate or imminent threat of death or serious bodily injury; (2) a well-grounded or reasonable fear that the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm except by committing the criminal act. The law cannot permit a party who places himself [or herself] in harms way by engaging in felonious criminal activity to exculpate himself [or herself] by claiming the taking of an innocent life was necessary because of duress, even if his [or her] own life was thereby threatened.
Duress must not be confused with justification. Justification entails taking the life of a person who is threatening the life of the defendant or another person to prevent oneself or the other person from being killed. Duress entails the killing of an innocent person under threat of being killed. The law of nature permits a person to kill one who is to take his life and acting in self-defense; it does not permit a person to take the life of an innocent person to prevent his own possible demise by the hand of the person making the threat. For lesser crimes than murder, duress is allowable because, on balance, saving one's own life, by committing a crime not entailing the death of another, has a higher value in society than avoiding the commission of that crime. One, however, may not be permitted to kill another person to save one’s own life, since society placés an equal value on both lives.

Id. 407 Pa.Super. at 140-41, 595 A.2d at 164.

However, our Supreme Court, in Commonwealth v. Pelzer,-Pa.-, 612 A.2d 407 (1992), while not addressing the issue of whether a defendant accused of first-degree murder may avail himself of the duress defense, impliedly stated that such a defendant may avail himself of said defense under appropriate factual circumstances. In Pelzer, the defendant, who was charged with first-degree murder, alleged that the trial court improperly refused to give a jury instruction regarding the duress defense. The trial court, in refusing to give the charge, stated that 18 Pa.C.S. § 309(b) applied as a matter of law to preclude the use of the duress defense; our Supreme Court agreed. Id. The Court held that, pursuant to the facts in Pelzer, the defendant recklessly placed himself in a situation in which it was probable that he would be subjected to duress; hence, pursuant to § 309(b), he could not avail himself of the duress defense. Id. Our Supreme Court did not find that § 309 was unavailable to a defendant charged with first-degree murder. It applied the statute but found that pursuant to a section of the statute the duress defense was unavailable to that defendant. Therefore, it appears that our Supreme Court has impliedly overruled our Court’s pronouncement in Commonwealth v. Morningwake, supra, regarding the duress defense, and that the duress defense could have been, under appropriate factual circumstances, available to the instant appellant. Commonwealth v. Pelzer, supra.

Our review of the facts adduced at trial compels us to conclude that appellant recklessly placed herself in a situation in which it was probable that she would be subjected to duress. 18 Pa.C.S. § 309(b). Appellant had lived with Hicks intermittently for a period of four years prior to the murder of the victim. She left him twice and chose both times to move back in with him. The day after the murder she, unaccompanied, drove the victim’s car around the city. Hicks gave appellant the option of choosing to stay in Pittsburgh rather than accompanying himself and Saunders to Georgia; appellant chose to accompany the two to Georgia. While appellant knew hours in advance of the murder that Hicks intended to kill someone, and she was left alone in the apartment when Hicks and Saunders searched for a victim in another part of Pittsburgh, appellant did not flee the apartment and/or attempt to extricate herself from the conspiracy to kill one of Saunders’ “customers.” While Hicks left the apartment, to dispose of the victim’s body, appellant remained at the apartment and awaited Hicks’ return. All of the aforementioned examples clearly indicate that appellant had numerous opportunities to sever her ties with Hicks both prior and subsequent to the spawning of the scheme to murder the victim. At the very least she recklessly placed herself in a situation (the relationship with Hicks, and, the conspiracy, from its infancy, with Hicks and Saunders) in which it was probable that she would be subjected to duress. If appellant had physically removed herself from the situation it would have been impossible for Hicks to have subjected her to the type of duress that would have caused her to participate in the murder of the victim. Therefore, we find, pursuant to 18 Pa.C.S. § 309(b), that appellant was not entitled to assert a duress defense. Commonwealth v. Pelzer, supra. Since the defense was unavailable appellant’s trial counsel was not ineffective for failing to assert it at trial. Accordingly, the trial court properly denied appellant’s PCHA petition.

We wish to note that the evidence adduced at trial indicated that appellant’s actions and omissions prior to, during and subsequent to the instant murder indicated that her involvement in the crime was more elaborate than the mere action of recklessly placing of herself in a situation in which it was probable that she would be subjected to duress. Appellant was involved from the inception of the instant plan to commit a murder. It was she, who, after learning of the unrelated burglary arrest warrant for Hicks, advised Hicks to flee the Pittsburgh area rather than turn himself in to the police; she suggested that Hicks strangle rather than stab the victim; she warned Hicks not to re-fire the pellet gun in the apartment since the noise could have caused a neighbor to summon the police; she directed Hicks to remove the handcuffs from the victim’s body since the handcuffs may have contained the defendant’s fingerprints; she advised Hicks that “the river” would have been a preferable location to dispose of the victim’s body; and, she suggested that the trio remain in Pittsburgh for one more day so that they could utilize the victim’s credit cards. Appellant’s actions went far beyond what could have been expected from an individual responding to duress; they were illustrative of acts of limited leadership in the murder scheme. Hence, appellant’s assertion that she was coerced into participating in the instant murder was clearly not supported by the evidence adduced at trial.

In conclusion, we affirm the trial court’s order denying appellant’s PCHA petition.

Order affirmed.

      . Appellant is not presently challenging the validity of her guilty plea.

      . This case was decided under the PCHA.

      . As stated, supra, § 309(b) provides that the duress defense is unavailable if, inter alia, "the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress.” Id. As mentioned, supra, 18 Pa.C.S. § 309 is the criminal statute that defines the duress defense, and, details when the defense is unavailable.


author: JOHNSON, Judge: POPOVICH, Judge,

text:
    612 A.2d 1043
    COMMONWEALTH of Pennsylvania v. Robert T. THILL, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1992.
    Filed Aug. 6, 1992.

      Martin W. Sheerer, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

Robert T. Thill appeals from Judgment of Sentence entered November 16, 1990, in the Court of Common Pleas of Allegheny County. We are asked to review the trial court’s determination that breathalyzer test results were properly admitted at trial in the face of a contention by Thill that the procedures employed in operating the testing equipment were in violation of applicable regulations. We agree with the suppression court’s determination that the test in question did not satisfy the regulatory requirement that the simulator solution be produced and tested for accuracy by independent laboratories. However, we reject that court’s conclusion that a violation of the applicable regulations does not constitute sufficient justification to warrant suppression. Instead, we conclude that Thill was entitled to have the results of the test suppressed and we are constrained to reverse judgment of sentence and remand for a new trial.

On December 2, 1989, at approximately 5:00 a.m., Officer R. Carter, of the Pittsburgh Police Department, arrived on the scene of a one car accident on East Ohio Street in Allegheny County. Officer Carter determined that Thill had been the operator of the vehicle at the time of the accident. When asked what had occurred, Thill responded that the car had left the road and hit a pole. Officer Carter noticed that Thill’s eyes were “glassy” and that Thill had an odor of alcohol on his breath. Officer Carter arrested Thill, who complied with the Officer’s request to submit to a test of his breath to determine blood alcohol content. That test yielded a reading of 0.224%.

Thill was charged with operating a vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving, 75 Pa.C.S. § 3731(a)(1), and operating a vehicle while the amount of alcohol by weight in his blood was .10% or greater, 75 Pa.C.S. § 3731(a)(4). Thill filed a pre-trial motion to suppress the test results on the basis that the solution used to calibrate the breath testing device, and to test it for accuracy, was not produced in compliance with the applicable statute and regulation: 75 Pa.C.S. § 1547(c)(1) and 67 Pa.Code. § 74.24(d).

The statutory section relied upon provides as follows: § 1547. Chemical testing to determine amount of alcohol or controlled substance
(c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
(1) Chemical tests of breath shall be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the departments of Health and Transportation. Devices shall have been calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation. ...

75 Pa.C.S. § 1547(c) (emphasis added). The applicable regulations, adopted jointly by the Departments of Health and Transportation, state:

§ 77.24. Breath test procedures.
(b) Procedures. ... The procedures for alcohol breath testing shall include, at a minimum:
(2) One simulator test using a simulator solution designed to give a reading of .10%, to be conducted immediately after the second actual alcohol breath test has been completed. ... The tests results will be disregarded, and the breath test device will be removed from service ... if one of the following occurs:
(ii) If the simulator test yields a result less than .09% or greater than .10% when the breath test device is read to the second decimal place, or if the simulator test yields a result less than .090% or greater than .109% when the breath test device can be read to the third decimal place.
(d) Simulator solution certification. The manufacturer of simulator solution shall certify to the test user that its simulator solution is of the proper concentration to produce the intended results when used for accuracy inspection tests or for calibrating breath test devices. This certification shall be based on gas chromatographic analysis by a laboratory independent of the manufacturer.

67 Pa.Code § 77.24 (emphasis added).

In support of his motion to suppress, Thill contended that the simulator solution had not been “analyfzed] by a laboratory independent of the manufacturer,” although such independent analysis is required by the regulation. To rebut this contention, the Commonwealth introduced the testimony of Dr. Charles Winek, Director of the Department of Laboratories for Allegheny County.

Dr. Winek testified that the Department of Laboratories is composed of two divisions: the Forensic Sciences Division, and the Public Health Division. Suppression Transcript, May 8, 1990, at 4. Dr. Winek further testified that the Forensic Sciences Division includes the Toxicology Laboratory Section, and that the Public Health Division includes the Environmental Health Laboratory Section. Id. at 4-5. Dr. Winek testified that the Environmental Health Section manufactures simulator solution for the Department of Laboratories, and that the Toxicology Section tests and certifies that solution for the Department of Laboratories. Id. at 5. In support of the Commonwealth’s position that the two laboratories are independent, Dr. Winek testified that the Environmental Health Section and the Toxicology Laboratory Section have separate independent budgets, and that the two sections are managed by different individuals. Id. at 6. Dr. Winek also stated that “[n]o one from one section or the other section has authority in the other section---- They do not cross with authority, they do not cross with budgets. They have no control over each other’s sections.” Id. at 7.

On cross-examination, however, the following took place: Q. Neither of these [sections] are independent of you, are they?
A. No.
Q. The manufacturer or the testing, they are both under your supervision?
A. They’re under my administration, yes.
Q. They are both part of the one department of Allegheny County government, the Department of Laboratories?
A. That’s correct.
THE COURT: Does the Department of Laboratories, does the forensic science section? Do you certify anyone other than the one produced by the environmental chemistry section?
THE WITNESS: No.
Q. When you make this solution, I understand it’s disseminated to the various police departments that use breath test devices in Allegheny County. And you were talking about the economics. I want to. focus on that for a minute and ask, do those police departments pay your laboratory for the product, or does the County just supply it to them?
A. They do not pay for the product, they do not pay for the instruments.
Q. The County owns it all, don’t they?
A. (Indicates yes.)
Q. So, it’s all one operation by the County of Allegheny?

A. Essentially, yes. It's the only one like it in the state. Id. at 12, 18, 19-20.

The Commonwealth also introduced the testimony of Dr. Wagdy Wahba, Manager of the Toxicology Section of the Forensic Science Division. Dr. Wahba testified that the Environmental Chemistry Section is managed by Bob Huston. Suppression Transcript, May 2, 1990, at 7. Dr. Wahba testified that the employees of the Environmental Chemistry Section are not the same employees as work for the Toxicology Section. Id. He testified that there has never been an occasion where the equipment used by the Environmental Chemistry Section was used by the Toxicology Section. Id. at 8. Dr. Wahba also testified, however, that both he and Mr. Huston report to Dr. Winek and that both the Toxicology Section and Environmental Chemistry Sections are under Dr. Winek’s “direct supervision.” Id. Finally, he testified that Mr. Huston selects which samples are to be tested, and submits those samples to Wahba. Id. at 12.

The suppression court, in its opinion, stated:
This Court finds the distinctions between the Environmental Chemistry Section and the Toxicology Section of the Department of Laboratories insufficient from which it can be concluded that the certification testing laboratory is independent of the manufacturer. Here, the manufacturer and the laboratory are tentacles on the same octopus. While the Court has no question about the honesty, integrity and dedication of Dr. Winek and the operation of his Department, it would be improper to impose a lesser requirement of scrutiny upon a government agency than would be imposed upon someone making and testing simulator solution in his garage.
There is no doubt that the purpose of requiring certification testing of simulator solution by a “laboratory independent of the manufacturer” is to provide quality control, a “double check”, insurance that there is no collusion between a manufacturer and that manufacturer’s laboratory. The regulations make no distinction between private or public manufacturers or private or public laboratories and does not exempt public entities manufacturing simulator solution from the requirement of an independent laboratory test.
... Having made no distinction between private and public entities however, the Court has little choice but to find that the procedures utilized by the Allegheny County Department of Laboratories are in violation of the Regulations of the Pennsylvania Department of Transportation, at 67 Pa.Code § 74.24(d).

Opinion, May 30, 1990, at 3-4 (footnote omitted).

The suppression court thus determined that the Commonwealth had not overcome its burden of demonstrating that the Toxicology Section and the Environmental Chemistry Section were independent within the meaning of § 77.24(d). Given the testimony of record, we cannot conclude that the suppression court erred in this conclusion. We are persuaded by that court’s reasoning that the regulation would not permit the independent laboratory requirement to be satisfied by a finding that there was no collusion between the laboratories, nor actual error in the testing. By its terms, the regulation requires that the laboratories be not merely possessed of integrity and good intentions, but that they be actually independent. Accordingly, the tests challenged here were not conducted in accordance with the applicable regulation.

We next consider what remedy, if any, is appropriate. On this issue, the suppression court held that, while “evidence of bad faith, collusion or [the] absence of certification would clearly implicate the defendant’s constitutional rights[,] ... the mere violation of a regulatory requirement does not amount to unconstitutional conduct.” Opinion at 7. The suppression court thus concluded that, in the absence of an allegation of unconstitutional conduct, suppression was unavailable as a remedy. Instead, the court ruled that Thill would have the opportunity to challenge the test results at trial on the basis of non-compliance with the regulation.

In Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986), our Supreme Court was faced with a challenge to the admissibility of evidence which had been collected in violation of § 1547. Although the model of breath testing device in question had been approved by the Legislature, this particular unit had been modified prior to the test. The Court held that the results of breath tests conducted on this modified machine were inadmissible, not because the machine was inherently unreliable, but because the machine no longer complied with § 1547. McGinnis, 511 Pa. at 525-26, 515 A.2d at 849-50.

In Commonwealth v. Culp, 378 Pa.Super. 213, 548 A.2d 578 (1988), this court affirmed an order which suppressed blood test results upon concluding that the Commonwealth had failed to carry its burden of showing compliance with 75 Pa.C.S. § 1547, the statute governing the admissibility of such evidence. Id., 378 Pa.Superior Ct. at 221, 548 A.2d at 582.

In Commonwealth v. Diulus, 391 Pa.Super. 379, 571 A.2d 418 (1990), this court recognized that the statutory language of § 1547 made compliance with the regulatory language of § 77.24(d) mandatory for admissibility as well. In Diulus, we noted that the regulations require two tests of the suspect’s breath, with the lower result to be admissible at trial. Where only one test was completed, this court held that the single result did not satisfy the regulations and was therefore inadmissible. Accordingly, we affirmed an order which suppressed the result of that single test.

Finally, in Commonwealth v. Mabrey, 406 Pa.Super. 437, 594 A.2d 700 (1991), this court affirmed an order suppressing the results of a breath test. The suppression court had found that the test of Mabrey had been conducted following the Commonwealth’s failure to adjust the device, although the regulations required such adjustment. We stated:

To resolve this issue, we look to and reaffirm our position in Diulus, supra, and hold that the statutory requirements of 75 Pa.C.S. § 1547 and the regulations in 67 Pa.Code § 77.24 both establish the requisite procedures for a valid breath test.

Id., 406 Pa.Superior Ct. at 444, 594 A.2d at 702 (emphasis original). Because the device had not been maintained in compliance with the applicable regulations, we held that the results of tests conducted with it were inadmissible at trial.

Guided by Culp, McGinnis and Mabrey, we conclude that the failure of the Commonwealth to establish at the suppression hearing that the test of Thill’s breath was conducted using simulator solution produced and tested in independent laboratories entitles Thill to suppression of the test results. Thill is entitled to a new trial at which the results of the breath test will be inadmissible.

Judgment of Sentence Reversed; Case Remanded; Jurisdiction Relinquished.

POPOVICH, J., files a dissenting statement in which OLSZEWSKI, J., joins.

POPOVICH, Judge,

dissenting.

The record shows sufficient independence between the divisions of the Department of Laboratories. In the absence of a specific showing of an abuse of that independence, I would affirm.

OLSZEWSKI, J., joins.