author: KELLY, Judge:

text:
    607 A.2d 756
    MT. LEBANON SCHOOL DISTRICT and Mt. Lebanon High Authority, Appellees, v. W.R. GRACE AND COMPANY, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed April 29, 1992.

      Lawrence E. Flatley, Pittsburgh, for appellant.
    John F. Perry, Pittsburgh, for appellees.
    Before CAVANAUGH, BECK and KELLY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine, inter alia, whether a school district may assert the doctrine of nullum tempus occurrit reqi to defeat the applicable statute of limitations in an action against a third party based upon that party’s sale to the school district of a product containing asbestos for use in the construction of additions to a school building within the district. Following a three week trial, a jury returned a verdict in favor of appellant, W.R. Grace and Company (hereinafter “Grace”) and against the appellee, Mt. Lebanon School District (hereinafter “School District”). Subsequent to the filing of post-verdict motions, the trial court awarded the School District a new trial. The court found that it had erred in charging the jury on the applicable statute of limitations, concluding that “the doctrine of nullum tempus was applicable.” Trial Court Opinion at 3. We agree with the trial court that the doctrine of nullum tempus was applicable in the instant case and that the granting of a new trial was proper. Hence, we affirm.

The relevant facts and procedural history are as follows. In 1970, the School District formed the Mt. Lebanon High School Authority to finance the construction of several additions to Mt. Lebanon High School. During construction, Grace supplied the Authority with fireproofing material it had manufactured known as Monokote. The Monokote was used as fireproofing mainly in the floors, ceilings and beams in the additions. Subsequent to the completion of the additions and as a result of several reports suggesting guidelines for the testing for asbestos in schools, the district commenced inspection of the high school. The inspection uncovered asbestos in the Monokote used as fireproofing in the additions. Consequently, on August 19,1983, the School District filed this lawsuit seeking recovery for the costs of removing Grace’s product from the high school additions.

On September 21, 1989, the trial court granted the School District’s motion in limine to exclude evidence on the statute of limitations. The order granted the motion, “... without prejudice to defendants’ [Grace’s] right to offer the same evidence as to other issues.” Order, 9/12/89. Throughout the entire litigation it was the School District’s position that the doctrine of nullum tempus applied, negating the statute of limitations. The trial court was well aware of this when it granted the District’s motion in limine and denied Grace’s motions for a directed verdict. See N.T. 9/29/89 at 161. At the conclusion of testimony, however, Grace requested a charge on the applicable statute of limitations. At the charge conference, the court granted Grace’s charge on the statute of limitations and the School District noted an exception, again informing the court of its position as to the applicability of nullum tempus. N.T. 10/11/89 at 226(b). At trial and very near the close of its instructions, the court instructed the jury as follows:

There is sort of a legal matter in here, I’m not quite sure it belongs to the jury, but they have asked for it and I’m going to give it to you.
W.R. Grace contends the plaintiff’s claims are barred by a defense called the statute of limitations. The statute of limitations is the time period within which a plaintiff is required by law to commence a lawsuit. If plaintiff does not bring his lawsuit within that required time, he forfeits his right to sue.
In this case the statute of limitations period is two years. The two-year period begins to run when the plaintiff first knew, or by the exercise of reasonable care or diligence should have known, that its claim that asbestos-containing products in its building were potentially hazardous. With regard to plaintiff’s knowledge, you are instructed that plaintiff had knowledge if it actually knew that asbestos-containing fireproofing could be potentially hazardous or that plaintiff had information which would normally have led a reasonably careful person of the same intelligence, training and experience to make inquiry through which the plaintiff would have learned and discovered that asbestos-containing fireproofing could be potentially hazardous.
W.R. Grace has the burden to prove the plaintiff’s knowledge by a preponderance of the evidence. If W.R. Grace proves by that preponderance of the evidence that plaintiff knew, or by the exercise of reasonable care or inquiry should have known on or before August 19,1981 that the asbestos-containing fireproofing applied to the additions of plaintiff’s high school had contaminated the building, then this lawsuit was untimely filed and your verdict must be for the defendant.

N.T. 10/12/89 at 345-347. The jury deliberated nearly four hours before returning a verdict for Grace.

The School District filed timely post-verdict motions alleging several trial errors. Most significantly, the School District contended that the court had erred in charging the jury on the applicable statute of limitations. The School District argued that the court had effectively reversed its order granting the District's motion in limine precluding evidence regarding the statute of limitations. Moreover, the School District alleged, as it had at the charge conference, that the doctrine of nullum tempus applied, thus defeating the statute of limitations defense. Having more fully researched the issue, the trial court concluded that the School District was correct and that it had erred when it charged the jury on the applicable statute of limitations. The court further found that a new trial was warranted because it was unclear on what grounds the jury had based their verdict. Trial Court Opinion at 5-6. Following the court’s order awarding the School District a new trial, Grace perfected this timely appeal.

On appeal, Grace contends that: 1) the trial court erred in granting the School District a new trial under the doctrine of nullum tempus; 2) the School District may not now claim prejudice when it failed to do so below; 3) the court’s charge on the statute of limitations, if error, was harmless error, and; 4) the trial court erred in failing to direct a verdict for Grace when the School District is seeking purely economic recovery which is not recoverable in tort. We address these issues seriatim.

We begin by noting that our standard of review from a trial court’s decision to grant a new trial is, “whether the trial court palpably and clearly abused its discretion or committed an error of law which controlled the outcome of the case.” Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 256, 523 A.2d 723, 725 (1987). Where as here, however, the court gives a single reason for the granting of a new trial, the court’s discretion is not at issue, but rather the validity of its legal justification is subject to review. Id. With the foregoing in mind, we turn to Grace’s challenges on appeal.

The doctrine of nullum tempus occurrit reqi (“time does not run against the king”) has long been accepted in this Commonwealth. Commonwealth Department of Transportation v. J.W. Bishop & Co., 497 Pa. 58, 62, 439 A.2d 101, 103 (1981); School District of the Borough of Aliquippa v. Maryland Casualty Company, 402 Pa.Super. 569, 580-82, 587 A.2d 765, 771 (1991). As this Court recently noted,

[wjhenever the Commonwealth invokes the doctrine of nullum tempus, it is seeking as a plaintiff to vindicate public rights and protect public property. Thus, since its adoption in this country, the rationale for the doctrine of nullum tempus has been “the great public policy of preserving public rights, revenues and property from injury and loss.” United States v. Hoar, 26 Fed.Cas. 329, 330 (C.C.D.Mass.1821) (No. 15,373) (Story, J.). See [Commonwealth v.] Musser Forests [394 Pa. 205, 146 A.2d 714 (1958)], supra (nullum tempus “matter of important public policy”). Moreover, the benefits and advantages of the doctrine of nullum tempus extend “to every citizen, including the defendant whose plea of ... limitations it precludes.” Guaranty Trust [Co. of New York v. United States], supra, 304 U.S. [126] at 132, 58 S.Ct. [785] at 789 [82 L.Ed. 1224 (1938)].

School District of Aliquippa, supra, 402 Pa.Super. at 581, 587 A.2d at 771, quoting Bishop, supra, 497 Pa. at 62, 439 A.2d at 104. In City of Philadelphia v. Holmes Protective Co., 335 Pa. 273, 6 A.2d 884 (1939), our Supreme Court held that,

[i]t is true that, unless otherwise provided, statutes of limitations cannot be pleaded against such political subdivisions when they are seeking to enforce strictly public rights, that is, when the cause of action accrues to them in their governmental capacity and the suit is brought to enforce an obligation imposed by law as distinguished from one arising out of an agreement voluntarily entered into by the defendant.

Id., 335 Pa. at 278, 6 A.2d at 887; see also Pocono Township v. Hall, 127 Pa.Cmwlth. 116, 121, 561 A.2d 53, 55 (1989) (same); Borough of West Fairview v. Hess, 130 Pa.Cmwlth. 385, 391-393, 568 A.2d 709, 713 (1989) (“unless a municipality is exercising a governmental function or there is an express provision to the contrary, a statute of limitation will apply to the government unit.”); but see Northampton County Area Community College v. Dow Chemical, U.S.A., 389 Pa.Super. 11, 19, 566 A.2d 591, 595 (1989) (statute and case law have rejected a “governmental v. proprietary function” test), affirmed Northampton County Area Community College v. Dow Chemical U.S.A., 528 Pa. 502, 598 A.2d 1288 (1991) {per curiam) (Papadakos, J., dissented and filed an opinion which Larsen, J. joined).

Within this framework Grace contends that the School District entered into a private contract and, like a private litigant, is seeking judgment based on its purchase of an allegedly defective product. See City of Philadelphia v. Holmes, supra. Grace points to a recent Federal District Court case for support. In In re Asbestos School Litigation, 768 F.Supp. 146 (E.D.Pa.1991), several school districts filed suit against manufacturers of asbestos laden products present in schools throughout their respective districts. The defendants raised the statute of limitations as a bar to the lawsuits. The school districts countered that the doctrine of nullum tempus applied and defeated the statute of limitations defense.

In concluding that nullum tempus could not be invoked to defeat the applicable statute of limitations, the Court opined:

Under nullum tempus, the statute of limitations cannot be pleaded against the Commonwealth of Pennsylvania, or political subdivisions thereof, ... when they are seeking to enforce strictly public rights, that is, when the cause of action accrues to them in their governmental capacity and the suit is brought to enforce an obligation imposed by law as distinguished from one arising out of an agreement voluntarily entered into by the defendant. City of Philadelphia v. Holmes Electric Protective Co. of Philadelphia, 335 Pa. 273, 6 A.2d 884 (Pa.1939).
In support of their argument that nullum tempus applies here to avoid a statute of limitations bar to the Fourth Amended Complaint, Plaintiffs cite several cases which favor application of nullum tempus to a Pennsylvania school district plaintiff. Respectfully, I am not inclined to agree that nullum tempus should be applied to Plaintiffs’ Fourth Amended Complaint. In spite of the fact that in constructing school buildings, Commonwealth school districts can be said to act as “an arm or agency of the state with attributes of sovereignty inherent in the state,” [School District of Philadelphia v. Planet Insurance Co., 44 Pa.D. & C.3d 262 (1987)] the fact that a public function rather than a proprietary one is being carried out is not enough, in itself, to mandate immunity from the statute of limitations under nullum tempus. A “governmental vs. proprietary function” test has been rejected as a means of determining governmental immunity generally, and as a test for the application of nullum tempus specifically. See [Northampton County Area Community College v. Dow Chemical, U.S.A., 389 Pa.Super. 11, 566 A.2d 591 (1989)].
According to the Supreme Court of Pennsylvania, in order for the application of nullum tempus to be appropriate, the right sought to be enforced must be “strictly public,” as well as “imposed by law on the defendant.” Holmes, supra, 335 Pa. at 278 [6 A.2d 884]. Here, Plaintiffs seek to recover damages for injury to school district property resulting from numerous asbestos manufacturers having allegedly placed dangerous, friable asbestos-containing materials in Plaintiffs’ school building, as well as having concealed knowledge of the danger. Although the Plaintiffs may be acting in a governmental role, as the authority cited by Plaintiffs has legitimately found, they are not acting in a role that is “exclusively governmental ... but rather [are] seeking a judgment against alleged [tortious actors], just as any private litigant having standing could do.” Borough of West Fairview v. Hess, 568 A.2d 709, 713 (Pa.Commw.1989). The language of the Pennsylvania Supreme Court in Holmes requires the latter for nullum tempus to be invoked. Therefore nullum tempus does not defeat Pennsylvania’s two-year statute of limitations, which expired against Plaintiffs no later than January 17,1985. Summary Judgment in favor of Kaiser Gypsum and against Plaintiffs in the Lancaster Action will be entered accordingly.

768 P.Supp. at 152. Grace further maintains this Court recently held that school districts cannot invoke the doctrine of nullum tempus, citing School Dist. of Aliquippa v. Maryland Casualty Co., supra.

The School District contends that the trial court properly applied the doctrine of nullum tempus in awarding a new trial. For support, the District points to School District of Philadelphia v. Planet Insurance Co., 44 Pa.D. & C.3d 262 (1987). In Planet, supra, the School District of Philadelphia sought to recover damages suffered as the result of defective electrical construction at several of its schools. Planet Insurance brought a motion to dismiss claiming that the school district’s claims were barred by the applicable statute of limitations. The school district argued that under the doctrine of nullum tempus it was immune from the statute of limitations.

In finding in favor of the school district, the Planet court opined:

The school district was created for the purpose of educating the public. Article 3 § 14 of the Pennsylvania Constitution commands the creation of a body or agency to “provide for the maintenance and support of a ... system of education to serve the needs of the Commonwealth.” Section 7-701 of the Public School Code of 1949 states in part:
“The board of school directors ... shall provide the necessary grounds and suitable school buildings to accommodate all the children between the ages of 6 and 21____ Such building shall be constructed, furnished, equipped and maintained in a proper manner herein provided. Suitable provisions shall be made for the heating, ventilating, adequate lighting,____
“§ 7-733 Standards of State Board of Education states in part that (1) all public school buildings hereafter built or rebuilt shall conform to standards established by the state Board of Education as to heating and ventilating ... light area____
“§ 7-751 (a) relating to contracts, command that the school board enter separate contracts with the lowest responsible bidder after due public notice asking for competitive bids.”
These statutes made it clear that in building schools, the school district must follow commands set forth by the Pennsylvania Constitution and the Legislature of the Commonwealth. Accordingly, in this context, the school district is an arm or agency of the state with attributes of sovereignty inherent in the state. Plaintiff did not enter the contract voluntarily, but instead entered mandatorily at the instruction of the state Constitution and the 1949 Public School Code. The state has a strong interest in educating our children and must provide buildings in which to house them during the process. In order to carry out this duty, someone must build and construct the schools to house the children.
To prevent the school district from asserting the protections granted to the Commonwealth would frustrate the intent and purpose of the Pennsylvania Constitution, Article 3 § 14, and the Public School Code of 1949.
* # * * * *
Thus, it appears that the school district has no choice and is acting by constitutional mandate when it enters a construction contract.
Id. at 270-73. While recognizing the “private” nature of the contract, the court emphasized that the district was compelled by law to enter into the contract. We find the reasoning employed by the court in Planet, supra, particularly persuasive.
The Constitution of this Commonwealth provides:
The general assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.
Pa.Const. Art. 3, § 14. School districts have been created as agencies of the legislature to administer this constitutional duty. School District of Philadelphia v. Twer, 498 Pa. 429, 435, 447 A.2d 222, 224 (1982); Smith v. School District of Township of Darby, 388 Pa. 301, 130 A.2d 661 (1957). Moreover, the legislature has declared that it is the duty of the board of directors of each school district to ... provide the necessary grounds and suitable school buildings to accommodate all the children between the ages of 6 and 21 years, in said district, who attend school. Such buildings shall be constructed, furnished, equipped and maintained in a proper manner as herein provided. Suitable provisions shall be made for the heating (including the purchase of fuel), ventilating, adequate lighting, and sanitary conditions thereof, and for a safe supply of water, so that every pupil in any such building may have proper and healthful accommodations.

24 Pa.S.A. § 7-701. The Pennsylvania Code provides that, “[t]he school buildings, grounds, play area equipment and appurtenances shall be constructed and maintained to minimize health and accident hazards.” 25 Pa.Admin.Code § 171.13.

The School District is, as an agency of the legislature, unquestionably compelled by law, constitutionally and statutorily, to provide safe and suitable facilities to accommodate the schoolchildren of the Commonwealth. The practical implications of such a duty require School Districts, in their governmental capacity, to enter into contractual relations with private parties who can construct and maintain such suitable facilities. Where, as here, a cause of action accrues to a party in its governmental capacity and the suit is brought to enforce strictly public rights and an obligation imposed by both the constitution and statute, such as that herein, the doctrine of nullum tempus applies. City of Philadelphia v. Holmes, supra. Accordingly, we hold that nullum tempus applied to the School District’s action against Grace brought to enforce and vindicate obligations imposed upon the District by law.

Grace’s next two contentions are somewhat intertwined and will therefore be addressed together. Grace contends that the School District did not allege any prejudice resulting from the instruction by the trial court and was or is therefore precluded from claiming prejudice in post-verdict motions or on appeal. Grace also argues that any error in the instruction was harmless.

We begin by noting that the School District specifically argued the applicability of nullum tempus throughout the litigation. N.T. 9/29/89 at 161; 10/11/89 at 226(b). The School District objected to the charge at the conference and again following the charge itself. N.T. 10/12/89 at 354. Both Grace and the trial court were on notice as to why the School District felt the statute of limitations charge was error and how such a charge might prejudice the District. Thus, the School District had properly preserved any challenge to the erroneous jury instruction and had pointed out the possible prejudice to the trial court prior to the filing of post-verdict motions. See e.g. Summit Fasteners, Inc. v. Harleysville Nat. Bank & Trust Co., Inc., 410 Pa.Super. 56, 62 n. 4, 599 A.2d 203, 206 n. 4 (1991).

As to Grace’s harmless error argument, an erroneous jury instruction will provide the basis for a new trial if the instruction is fundamentally in error and it may have been responsible for the verdict. Summit Fasteners, Inc. v. Harleysville Nat. Bank & Trust Co., Inc., supra, 410 Pa.Super. at 62, 599 A.2d at 206; Smith v. Brooks, 394 Pa.Super. 327, 340, 575 A.2d 926, 932 (1990); Jistarri v. Nappi, 378 Pa.Super. 583, 588, 549 A.2d 210, 213 (1988). Instantly, it is clear from our discussion infra, that the instruction itself was error. The trial court concluded that because the instruction may have contributed to the verdict, a new trial was warranted. Trial Court Opinion at 5-6. Our review of the record fails to compel a different conclusion.

Grace’s final contention is that the trial court erred in failing to direct a verdict in its favor. Citing this Court’s decision in REM Coal Co. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128 (1989) (en banc), Grace argues that because a party cannot recover in a negligence or strict liability action for a purely economic loss, the School District is precluded from recovery herein for the costs of removing the asbestos contaminated fireproofing from the additions to the high school.

In REM Coal Co., Inc. v. Clark Equipment Co., supra, this Court addressed

[T]he appropriateness of permitting recovery in tort where a product malfunctions because of an alleged defect in the product, causing damage to the product itself and consequential damages in the nature of costs of repair or replacement or lost profits, but the malfunction causes no personal injury and no injury to any other property of the plaintiff.

Id., 386 Pa.Superior Ct. at 403, 563 A.2d at 129. In concluding that recovery was no longer appropriate in these cases, this Court adopted the view set forth by the United States Supreme Court in East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (recovery in tort is barred where the only damage is to the product itself). Grace maintains that REM Coal, supra, bars the School District’s recovery in the instant case.

The School District maintains that REM Coal, supra, is inapposite instantly, as courts throughout the country have determined that asbestos contamination constitutes “property damage” and not merely damage to the product itself. Because the School District does not seek recovery for damages to Grace’s product arising from its defective nature but for damage to the buildings, their contents and their occupants, the School District concludes that it is not prevented from recovering in tort for the costs of removing Grace’s product. We agree that our decision in REM Coal, supra, does not preclude recovery in the instant case.

A number of recent cases in other jurisdictions have rejected the argument that a public entity owning a public building cannot sue in tort for the costs of removing building materials contaminated with asbestos. See City of Greenville v. W.R. Grace & Co., 827 F.2d 975 (4th Cir.1987); Northstar Assoc. v. W.R. Grace & Co., 767 F.Supp. 969 (D.Minn.1991); Independent School District v. W.R. Grace & Co., 752 F.Supp. 286 (D.Minn.1990); Drayton v. Public School Dist. No. 19 v. W.R. Grace & Co., 728 F.Supp. 1410 (D.N.D.1989); City of Manchester v. National Gypsum Co., 637 F.Supp. 646 (D.R.I.1986); Town of Hooksett School Dist. v. W.R. Grace & Co., 617 F.Supp. 126 (D.N.H.1984); Livingston Board of Education v. U.S. Gypsum, 249 N.J.Super. 498, 592 A.2d 653 (Appellate Division, 1991); Board of Education of City of Chicago v. A.C. & S., Inc., 131 Ill.2d 428, 137 Ill.Dec. 635, 546 N.E.2d 580 (1989). The courts have cited a number of factors supporting their rulings. We find two of these factors most persuasive: (1) that the school district is a public entity and not a business seeking reimbursement for lost profits; and (2) that the defect is not in the product’s failure to perform the function for which it was purchased, but rather in its ability to expose the occupants of the building to serious health hazards.

The School District is not alleging that Grace’s product is unacceptable as fireproofing or that the presence of asbestos in any way limited the product's ability to repel fire. Rather, the School District maintains that the presence of asbestos fibers in Grace’s product damages not the product itself, but the building and those who are exposed to the fibers. In REM Coal, supra, this Court simply stated that “negligence and strict liability theories do not apply in an action between commercial enterprises involving a product that malfunctions where the only resulting damage is to the product itself.” Id. 386 Pa.Super. at 412-13, 563 A.2d at 134. Thus, recovery is appropriate where, as here, the party seeking recovery is a public entity and not a private litigant seeking reimbursement for lost profits, and the product’s defect is its capacity to expose individuals to a potentially life threatening safety risk, and not in its failure to perform the function for which it was purchased.

Accordingly, and for the foregoing reasons, the order awarding the School District a new trial is affirmed.

Order AFFIRMED.

      . The trial court rejected the School District’s remaining allegations of error. They are not before us on appeal.

      . In note 5 of Aliquippa, this Court suggested that it "would not appear that the Aliquippa School District could itself invoke nullum tempus____” Aliquippa, supra 402 Pa.Super. at 583, n. 5, 587 A.2d at 772, n. 5. The rationale was twofold. First, the district had already been made whole by the insurance company’s payment of the judgment. Finally, the action was based on the alleged negligence of auditors hired by the district and was between two private litigants, the insurance company and the auditors. Nothing in Aliquippa, supra, precludes the decision we reach in the instant case.

      . In Northampton County College v. Dow Chemical, Co., supra, this Court held that because the legislature did not create the community colleges, but merely authorized their creation, the college could not properly invoke nullum tempus as it was not a Commonwealth party. Id. 389 Pa.Super. at 19-21, 566 A.2d at 595. The School District, however, has been created to fulfill the legislature’s constitutional mandate, i.e. to provide an efficient system of public schools. See School District of Philadelphia v. Twer, supra and Smith v. School District of Township of Darby, supra. Given this distinction in classification, the holding in Northampton County College v. Dow Chemical, Co., supra, is inapplicable to the instant case.

      . Contrary to Grace's assertions, City of Philadelphia v. Holmes, supra, does not compel an opposite result. There a city ordinance granted Holmes, Co., permission to carry its wires “under and beneath the highways of the City of Philadelphia,” Holmes, supra, 335 Pa. at 275, 6 A.2d at 886, provided the company paid the city a certain percentage of gross receipts for the year. The city was not required, either under the Constitution, statute or case law, to provide companies the option of carrying their wires under the streets of the city. The ordinance granted the companies permission to do so. The court emphasized that the city was suing to enforce a contract “assumed by defendant when it accepted the privilege granted by the ordinance____" Id., 335 Pa. at 280, 6 A.2d at 888. As discussed infra, the school district herein is compelled by law to provide for the safe and healthy construction and maintenance of school buildings to accommodate the schoolchildren of this Commonwealth.

      . We note that although authority from other jurisdictions is divided, we find persuasive those cases which have granted immunity from statutes of limitation. See e.g. Laramie County School District Number One v. Muir, 808 P.2d 797 (Wyo.1991); Board of Education of City of Chicago v. A, C, and S, Inc., 131 Ill.2d 428, 137 Ill.Dec. 635, 546 N.E.2d 580 (1989); Commonwealth v. Owens-Coming Fiberglas Corp., 238 Va. 595, 385 S.E.2d 865 (1989); Oklahoma City Municipal Improvement Authority v. HTB, Inc., 769 P.2d 131 (Okl.1988); Rowan County Board of Education v. U.S. Gypsum, 87 N.C.App. 106, 359 S.E.2d 814, reh. denied, 321 N.C. 298, 362 S.E.2d 782 (1987); Bellevue School District No. 405 v. Brazier Construction Co., 103 Wash.2d 111, 691 P.2d 178 (1984); but see New Jersey Educational Facilities v. Gruzen, 125 N.J. 66, 592 A.2d 559 (1991); Board of Education v. Dow Chemical Co., 40 Conn.Supp. 141, 482 A.2d 1226 (1984).


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    607 A.2d 764
    COMMONWEALTH of Pennsylvania v. Floyd FORD, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1991.
    Filed April 30, 1992.

      Lori J. Barger, Harrisburg, for appellant.
    Gloria T. McPherson, Asst. Dist. Atty., Shermansdale, for Com., appellee.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence entered . after appellant was convicted of arson endangering persons and arson endangering property. Appellant raises four issues on appeal: (1) whether the evidence was insufficient to support the convictions; (2) whether the trial court erred in failing to declare a mistrial when a Commonwealth witness testified that appellant had previously been charged with an unrelated act of arson; (3) whether the trial court erred in allowing the Commonwealth to reopen its case to present testimony to refute appellant’s alibi without proper notice to the defense; and (4) whether the trial court erred in failing to hold a suppression hearing with respect to a statement that appellant gave to Detective Fegan. For the reasons set forth below, we reverse the judgment of sentence and remand for a new trial.

On December 24, 1989, at approximately 8:30 p.m., the home of Rosa Venable became engulfed in flames. At the time, Veronica Ford and her children were living with Ms. Venable because Ms. Ford and her husband, Floyd Ford, the appellant, were separated. Both exits of the house were on fire and unusable. Ms. Ford and her children were able to escape from bedroom windows, but Ms. Venable was confined to a wheel chair and was unable to exit the home until the arrival of the firefighters. Later investigation revealed that the fire had been intentionally set by someone who had doused both entrances to the house with gasoline and set them afire.

At trial, the evidence indicated that during the week preceding the fire, appellant and his wife had numerous arguments regarding the state of their marriage. On December 24, 1989, the calls culminated in a statement by appellant to his wife that, “Bitch, one of these days you are going to make me kill you.” Upon leaving the burning house, Veronica Ford noticed appellant at the scene of the fire. She spoke with him briefly, but when Detective Woodring approached, appellant abruptly ended the conversation and walked away. Appellant later made statements to the police regarding his whereabouts on the evening of the fire. He indicated that he was with his brother the entire evening, and that he did not set the fire. At trial, however, the evidence indicated that appellant and his brother were in fact separated for two hours between 7:00 and 9:00 p.m. During this period appellant’s brother visited with a friend who lived just two blocks away from the Venable residence while appellant waited for him outside in the car. During the trial, one of the witnesses testified that appellant told him that he was going to “beat” the arson charge because the Commonwealth would be unable to prove that he was at the Venable residence when the fire started. The witness further testified that appellant said that he would “beat” the arson charge because his wife would not testify against him, knowing that he would kill her if she did. Finally, there was evidence suggesting that appellant had intimidated the Commonwealth witnesses whom he knew were going to testify against him. Although none of the witnesses directly stated that they were threatened by appellant, one of the witnesses stated that he was threatened by someone not to testify against appellant.

From this evidence, appellant was found guilty by a jury of arson endangering persons and arson endangering property. Following the denial of appellant’s post trial motions, he was sentenced to a term of five to ten years incarceration. This appeal follows.

Initially, we note that when reviewing a challenge to the sufficiency of the evidence, we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988).

In this case, we find that the evidence was sufficient to support appellant’s conviction. It is well established that a conviction for arson may be based solely on circumstantial evidence. Commonwealth v. Trafford, 312 Pa.Super. 578, 459 A.2d 373 (1983). A conviction for arson requires that the Commonwealth establishes: (1) that there was a fire; (2) that it was of incendiary origin; and (3) that appellant set the fire. Commonwealth v. Galloway, 302 Pa.Super. 145, 151, 448 A.2d 568, 571 (1982). Here the first two elements are uncontested. Appellant’s only argument is that the evidence was insufficient to prove that he was the person who set the fire. We disagree and find that the evidence presented to the jury, i.e., appellant’s motive, his presence near the scene when the fire was set, his presence at the scene shortly after the fire was set, appellant’s apparent falsification of his whereabouts on the night of the fire, and the intimidation of the Commonwealth’s witnesses, was sufficient to support appellant’s conviction.

Although we find that there was sufficient evidence to convict appellant, we reverse and grant appellant a new trial based on the testimony regarding appellant’s prior arson charge. At trial, during the direct examination of one of the Commonwealth’s witnesses regarding a conversation he had with appellant, the following testimony was elicited:

Q. What did [Floyd Ford] say about the arson?
A. (There is no response)
Q. You’ve indicated he didn’t tell you he did it, but he didn’t tell you he didn’t do it?
A. He told me he was charged with an arson charge.
Q. All right. What else did he tell you?
A. That he had an arson charge before—

At this point, appellant’s counsel objected, and moved for a mistrial. The motion was denied, and the trial proceeded without any further mention of appellant’s prior arson charge.

Generally, the decision to grant a mistrial is within the sound discretion of the trial court, whose decision will not be reversed absent a manifest abuse of discretion. Commonwealth v. Duffy, 391 Pa.Super. 602, 571 A.2d 1079 (1990). While not all statements regarding the accused’s prior criminal conduct require a mistrial, when the accused is prejudiced by the reference, a mistrial must be granted. Commonwealth v. Laughman, 306 Pa.Super. 269, 452 A.2d 548 (1982). The controlling question in cases raising this issue is whether or not a juror could reasonably infer that the accused had engaged in prior criminal activity. Commonwealth v. Bowermaster, 297 Pa.Super. 444, 444 A.2d 115 (1982). If such an inference is created, and the accused is prejudiced thereby, then a mistrial must be granted. Id. Moreover, whether the remark was intentionally elicited by the Commonwealth, and whether cautionary instructions were given, are considerations relevant to the determination of whether a mistrial is required. Commonwealth v. Perdue, 387 Pa.Super. 473, 564 A.2d 489 (1989). In certain situations, curative instructions may suffice to remove the taint of unintentional and innocuous references to prior criminal activity. Commonwealth v. Gaerttner, 335 Pa.Super. 203, 484 A.2d 92 (1984).

In the instant case, we find that the trial court abused its discretion in not granting the mistrial. First of all, the remark unnecessarily conveyed to the jury that appellant had a prior criminal record. Although there was only a single reference regarding appellant’s prior arson charge, the jury could have reasonably inferred that appellant engaged in prior criminal activity. Since such an inference was created, appellant was entitled to a mistrial if he was prejudiced therefrom. We find that appellant was in fact prejudiced by the remark. The prior crime which was mentioned by the witness was the same exact crime for which the appellant was on trial. Such a reference undoubtedly aroused prejudice in the minds of the jurors by implying that appellant had the propensity to commit arson. In spite of the prejudicial effect of the statement, the trial court gave no cautionary instructions to cure the improper reference. See e.g., Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975). Although the disputed testimony was clearly inadmissible, the trial court refused the mistrial motion because “the remark was not intentionally elicited by the Commonwealth,” and because it was ambiguous and did not indicate that appellant was actually convicted of the prior charge. We disagree, and find that although the statement was not intentionally elicited by the Commonwealth, the single reference unnecessarily conveyed to the jury that appellant had a prior criminal offense, an offense which was the same as that for which he was then being tried. Accordingly, the judgment of sentence is reversed and the case is remanded for a new trial.

Judgment of sentence reversed.

Case remanded.

Jurisdiction relinquished.

      . At trial, appellant denied that he was waiting for his brother in the car for any length of time. He testified that his brother knocked on the door of his friend’s house, but when there was no answer, the two men left.

      . Appellant raises several other issues on appeal. In view of our holding granting appellant a new trial, we do not consider appellant’s remaining contentions.


author: BROSKY, Judge.

text:
    607 A.2d 767
    COMMONWEALTH of Pennsylvania v. Michael James SHERRELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1992.
    Filed April 30, 1992.

      Suzanne M. Swan, Asst. Public Defender, Pittsburgh, for appellant.
    Maria Y. Copetas, Asst. Dist. Atty., Pittsburgh, Com., appellee.
    Before ROWLEY, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s convictions for possession of and possession with the intent to deliver crack cocaine, a schedule II controlled substance. The sole issue presented for our review is whether the evidence was sufficient to sustain appellant’s conviction for possession with the intent to deliver. For the reasons set forth below, we affirm the judgment of sentence.

We will briefly recount the relevant facts of this case before undertaking our review of appellant’s evidentiary challenge. An outstanding arrest warrant for appellant, Michael Sherrell, had been issued with regard to offenses that were unrelated to the case sub judice. On March 7, 1990 an unidentified individual contacted the McKees Rocks’ police department and informed them that appellant could be found in the Broadhead Manor/McKees Rocks section of the City of Pittsburgh. The police promptly proceeded to this area to execute the warrant. Upon their arrival, the police saw appellant standing on the sidewalk conversing with other individuals. As the police exited their vehicles and announced their identity, appellant fled the immediate vicinity and a chase ensued. The police eventually caught appellant and while attempting to handcuff him, they observed appellant drop a bag which was later found to contain crack cocaine. A pat-down search for weapons disclosed another bag which also contained crack cocaine. Criminal charges arising out of this incident were later instituted against appellant.

Appellant waived his right to a jury trial and the case was tried with the court sitting as finder-of-fact. Prior to trial, appellant orally moved for a dismissal of the count involving the offense of possession with the intent to deliver. After hearing testimony, the court denied this motion. The case then proceeded to trial the following day. Appellant presented no evidence in his defense and after closing argument, the trial court found appellant guilty of both simple possession of and possession with the intent to deliver crack cocaine. Although appellant’s post-trial motions wére not timely filed, the trial court nevertheless addressed the merits of his claims. Appellant’s post-trial motions were denied and appellant was thereafter sentenced to a term of three (3) to six (6) years’ imprisonment. This timely appeal followed.

Appellant contends that the evidence presented by the Commonwealth was insufficient to sustain his conviction for possession with the intent to deliver. In reviewing the merits of this claim,

the evidence must be viewed in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, it must be determined whether the [fact-finder] could reasonably have found all of the elements of the crime to have been established beyond a reasonable doubt.

Commonwealth v. Bruner, 388 Pa.Super. 82, 97, 564 A.2d 1277, 1284 (1989) (citation omitted). See also Commonwealth v. Smagala, 383 Pa.Super. 466, 475, 557 A.2d 347, 351 (1989), allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989); Commonwealth v. Parsons, 391 Pa.Super. 273, 283, 570 A.2d 1328, 1334 (1990); Commonwealth v. Ramos, 392 Pa.Super. 583, 592, 573 A.2d 1027, 1032 (1990), allocatur denied, 527 Pa. 602, 589 A.2d 692 (1990); Commonwealth v. Ariondo, 397 Pa.Super. 364, 382, 580 A.2d 341, 350 (1990), allocatur denied, 527 Pa. 628, 592 A.2d 1296 (1991); and Commonwealth v. Robinson, 399 Pa.Super. 199, 204-205, 582 A.2d 14, 17 (1990), allocatur denied, 528 Pa. 629, 598 A.2d 282 (1991) (for similar considerations). Moreover, “[i]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact[-]finder is free to believe all, part or none of the evidence.” Commonwealth v. Ariondo, supra (citations omitted). See also Commonwealth v. Parsons, supra (same).

In addition to these considerations, we further recognize that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was possessed with the intent to deliver. Expert opinion testimony is admissible concerning whether the facts surrounding the possession of controlled substances are consistent with an intent to deliver rather than with an intent to possess it for personal use. Under Pennsylvania law, intent to deliver may be inferred from possession of a large quantity of controlled substances. Similarly, the absence of intent to deliver may be inferred where only a small amount of the controlled substance was discovered. However, ‘the amount [of [the] controlled substance] involved is not necessarily crucial to establishing an inference of possession with the intent to deliver, if ... other facts are present.’

Commonwealth v. Ariondo, 397 Pa.Super. at 383, 580 A.2d at 350-351 (citations omitted) (emphasis added). See also Commonwealth v. Robinson, 399 Pa.Super. at 205, 582 A.2d at 17; Commonwealth v. Ramos, 392 Pa.Super. at 592-593, 573 A.2d at 1032-1033; and Commonwealth v. Smagala, 383 Pa.Super. at 476, 557 A.2d at 351-352 (for similar considerations).

Other factors which also may be relevant in establishing an intent to deliver are the presence of drug paraphernalia or unusually large sums of cash. Commonwealth v. Parsons, 391 Pa.Super. at 285, 570 A.2d at 1335. See also Commonwealth v. Rodriguez, 526 Pa. 268, 276, 585 A.2d 988, 992 (1991).

Further, the particular method of packaging or form of the drug as well as the defendant’s behavior similarly may be relevant in establishing an intent to deliver. See Commonwealth v. Ramos, 392 Pa.Super. at 594, 573 A.2d at 1033-1034 (nine (9) heat-sealed pre-packaged plastic packets of cocaine, when coupled with defendant’s actions in placing the drugs beneath a parked car, sufficiently proved an intent to deliver) and Commonwealth v. Robinson, 399 Pa.Super. at 205, 582 A.2d at 17 (1990) (possession of thirty-eight (38) vials of crack cocaine and the absence of any drug paraphernalia which would facilitate immediate consumption of the drug was sufficient to establish the defendant’s intent to deliver). We will evaluate appellant’s arguments in accordance with the above principles.

The record reveals that appellant was found to be in possession of two bags of crack cocaine which respectively contained a single chunk weighing 2.97 grams, and ten rocks of approximately the same size and shape, which in the aggregate, weighed 1.88 grams. N.T. at 24-25 and 76. The crack cocaine was estimated to have a street value of $800.00. Id. at 52, 54 and 56. In addition, appellant possessed approximately $20.00 in cash at the time of his arrest and was not observed to have any drug paraphernalia, such as a razor blade to cut the crack cocaine or a pipe or other equipment with which to smoke it. Id. at 79-81. Appellant also did not appear to engage in any type of behavior which would be consistent with drug dealing, as he was seen merely standing on a sidewalk conversing with a few other individuals just prior to his arrest. Id. at 14 and 79. However, appellant was arrested in an area which is known for its high level of drug activities. Id. at 30-31. Further, the police knew that appellant was a drug user. Id. at 85. Based on the above information, the Commonwealth requested its expert, Detective Marx, to render his opinion as to whether appellant possessed the crack cocaine with the intent to deliver, and his testimony was as follows:

Due to the amount, the ten pieces of crack and the— where you see a 2.97 grams [sic], if that was the weight of the other [chunk], that would be consistent with — the 2.97 grams would be consistent with what they call an eighth of an ounce of cocaine, and in the form that it was in when I saw it, it was uncut at the time— ... In other words, if you had that amount, \i.e., the single 2.97 gram chunk,] that is a personal use amount. That’s an amount that you cut and resell. And with regards to the ten pieces of crack being in the one plastic bag, the way that we’ve been buying crack and the way — there’s two ways it is delivered. One is, they’re either in little coin bags, Ziploc bags, or they’re sold just out of hand. In other words, you pull up on the street, and — where he was is a high drug area where they sell a lot of crack, and ... [y]ou drive up on the street. You pull up to the curb. A guy walks over to the car, holds out his hand, and you tell him you want two or three rocks. He shows you maybe five or six, and you pick out what you want, and you pay him.

N.T. at 29-30. Detective Marx attempted to clarify his testimony on cross-examination as follows:

I sounded a little vague. I’ll try to explain myself better. The one bag I say was cut was rocks that were individually separate, so each — there was ten pieces, and these ten pieces were similar in size and shape as [if] they were purposely cut like that, and that is frequently the way that we go out and buy crack____ The other stuff I referred to as uncut was a solid piece of crack cocaine. In other words, this crack cocaine ... was not chopped up, but before you could smoke it or deliver it, you would have to chop it up, yes.

Id. at 32. Detective Marx added that it would be extremely uncommon for an individual to possess both a solid chunk and a bag of rocks for personal use. Id. at 52 and 56. Rather, he believed that it would be more probable for a drug user to purchase the 2.97 gram chunk if he intended to personally use the drug. Id. at 52. While Detective Marx’s testimony was less than a model of clarity, his opinion essentially was that while appellant’s possession of the single chunk of crack cocaine was consistent with personal use, his possession of the bag of rocks was more consistent with drug dealing rather than personal use. Consequently, it was Detective Marx’s belief that appellant intended both to use and sell the crack cocaine and his opinion remained unshaken despite vigorous cross-examination by defense counsel. Id. at 84 and 88.

Although the above evidence does not present the strongest possession with the intent to deliver case which has come before this court, a review of the totality of the circumstances and the relevant factors nevertheless persuades us that the Commonwealth sustained its evidentiary burden. As instructed by our prior cases, we must first examine the quantity of the substance possessed by appellant. In this case, the total weight of the cocaine was not unusually large, especially when compared to that in other cases in which the amount of the cocaine was of sufficient quantity as to be inconsistent with personal use. See, e.g., Commonwealth v. Rodriguez, 526 Pa. at 276, 585 A.2d at 992 (where defendant possessed three (3) ounces of cocaine) and Commonwealth v. Ariondo, 397 Pa.Super. at 384, 580 A.2d at 351 (where the defendant possessed 12.6 grams of cocaine at his residence and an additional 126.7 grams of cocaine had been previously removed from the package by the police). However, the amount of cocaine possessed by appellant here, 4.85 grams, was much larger than that which this court has found to be consistent with personal use. See Commonwealth v. Smagala, 383 Pa.Super. at 477, 557 A.2d at 352 (where we found the defendant’s possession of .8 grams of cocaine to be consistent with personal use). Possession of a small or moderate quantity of drugs is not dispositive as we must ascertain whether the other factors evidence an intent to deliver. Commonwealth v. Parsons and Commonwealth v. Ramos, supra.

As noted above, another relevant factor is the presence or absence of a large quantity of cash. Commonwealth v. Parsons and Commonwealth v. Rodriguez, supra. In this case, appellant was found to possess a little more than $20.00 at the time of his arrest. Thus, this factor does not overwhelmingly support an inference of drug dealing rather than drug usage.

We must also examine the type of behavior engaged in by appellant. Here, appellant was known to be a drug user. Although appellant was arrested while in a high drug activity zone, this factor is not of great significance because appellant may have visited the area to purchase the crack cocaine. More importantly, the police did not observe appellant engage in any type of conduct which would be consistent with drug dealer rather than drug user behavior. Compare Commonwealth v. Ramos, 392 Pa.Super. at 594-595, 573 A.2d at 1033-1034 (where the defendant denied use and possession of the drugs, and the police had observed the defendant hiding the pre-packaged drugs beneath a parked car; behavior of this type was found to be typical of juvenile drug dealers). An intent to deliver likewise cannot be established through appellant’s prior conduct because there was no evidence that appellant had recently sold crack cocaine to the police or a confidential informant. Compare Commonwealth v. Keefer, 338 Pa.Super. 184, 190, 487 A.2d 915, 918 (1985) (evidence deemed sufficient to establish intent to deliver where, in addition to presence of drugs and drug paraphernalia, there was evidence that the defendant had recently sold drugs to a police informant).

The final factors which we must examine are the presence or absence of drug paraphernalia and the packaging or form of the drugs. Commonwealth v. Parsons, Commonwealth v. Ramos, and Commonwealth v. Robinson, supra. In this case, appellant was not found to be in possession of any type of drug paraphernalia or equipment which would be consistent with drug distribution activities. Compare Commonwealth v. Ariondo, 397 Pa.Super. at 384, 580 A.2d at 351 (where the defendant had a triple-beam balance scale, a portable gram scale, four (4) bottles of inositol (a cutting agent), two (2) electronic beepers, gem-pacs and plastic baggies) and Commonwealth v. Parsons, 391 Pa.Super. at 284, 570 A.2d at 1334-1335 (where the defendant had an electronic scale, a second scale with weights, assorted sizes of plastic bags, and tally sheets indicating individuals’ names, amounts and other drug-related notations). Appellant similarly did not possess any equipment such as a razor blade, a pipe or some other implement which would be conducive to his immediate consumption of the drug. Compare Commonwealth v. Smagala, 383 Pa.Super. at 476, 557 A.2d at 352 (where the defendant was found to have previously-used glassine baggies, hundreds of burnt matches, used “Klennex” [sic], a glass pipe, wire mesh screens, a razor blade and a rolled-up twenty dollar ($20.00) bill; paraphernalia of this type was consistent with personal usage). In addition, one bag of the cocaine contained ten rocks which were all of similar size and shape, indicating that the rocks had been purposely cut in this manner for distribution. The packaging and form of the rocks, when considered in conjunction with appellant’s lack of drug paraphernalia to facilitate immediate consumption of the crack cocaine and Detective Marx’s expert opinion that it would be highly unusual to find a drug user in possession of both a single solid chunk and a bag of crack cocaine rocks, sufficiently established beyond a reasonable doubt that appellant intended to distribute or re-sell some of the crack cocaine found in his possession. See Commonwealth v. Robinson, 399 Pa.Super. at 205, 582 A.2d at 17 (evidence sufficient to establish intent to deliver where the defendant possessed thirty-eight (38) vials of crack cocaine, had no paraphernalia which would be conducive to immediate consumption, and where a qualified expert found these circumstances indicative of an intent to deliver) and Commonwealth v. Ramos, 392 Pa.Super. at 594-595, 573 A.2d at 1033-1034 (evidence sufficient to establish intent to deliver where the cocaine was divided into nine (9) pre-packaged heat-sealed plastic packets, a form which was typical of juvenile drug sales).

In sum, we have carefully examined appellant’s claim in light of the evidence contained in the certified record and the guidance provided by relevant authorities. Our review compels us to conclude that the Commonwealth’s evidence was sufficient to establish that appellant possessed the crack cocaine with the intent to deliver. We therefore affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-104(2)(i)4.

      . We will not examine the sufficiency of the evidence with regard to appellant’s conviction for simple possession, as appellant does not attack his conviction for this offense.

      . This portion of the city is a high drug activity area. N.T. at 30-31.

      . This bag contained ten rocks of crack cocaine which in the aggregate weighed 1.88 grams. N.T. at 20 and 76.

      . The bag found inside appellant’s jacket contained a single chunk of crack cocaine which weighed 2.97 grams. N.T. at 20 and 76.

      . The evidence introduced at the hearing on the pre-trial motion was expressly incorporated into the record at appellant’s trial. N.T. at 78.

      . Because the trial court considered the issues raised in the untimely post-trial motions, appellant’s claims have been preserved for appellate review. Commonwealth v. Markovitch, 388 Pa.Super. 244, 248, 565 A.2d 468, 471 (1989); Commonwealth v. McBride, 391 Pa.Super. 113, 117, 570 A.2d 539, 541 (1990); and Commonwealth v. Pirela, 398 Pa.Super. 76, 81, 580 A.2d 848, 851 (1990), allocatur denied, 527 Pa. 672, 594 A.2d 658 (1991).

      . Detective Marx, who was qualified as an expert witness, indicated that each of the individual rocks could be sold for $20.00 to $40.00. N.T. at 30. In arriving at the total value of $800.00, Detective Marx estimated the price of the single chunk to be $600.00 and the ten rocks to be worth $200.00, i.e., ten rocks at $20.00 each. Id. at 52, 54 and 56.


author: BECK, Judge: JOHNSON, Judge,

text:
    607 A.2d 772
    COMMONWEALTH of Pennsylvania v. William C. EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1991.
    Filed April 30, 1992.
    Petition for Allowance of Appeal Granted Sept. 24, 1992.

      Suzanne M. Swan, Asst. Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

      Before BECK, JOHNSON and HOFFMAN, JJ.
   BECK, Judge:

The sole issue in this appeal is whether appellant William C. Edwards is entitled to a new trial because the trial court instructed the jury, despite defense objection, that it must draw no adverse inference from appellant’s failure to testify. While it is clear that, pursuant to Commonwealth v. Rasheed, 392 Pa.Super. 280, 572 A.2d 1232 (1990) (en banc), the trial court’s instruction to the jury was error, we conclude that the error was harmless beyond a reasonable doubt. Therefore, the judgment of sentence is affirmed.

Appellant was convicted of third degree murder following a jury trial. Post-verdict motions were denied and appellant was sentenced to ten to twenty years imprisonment. The evidence which formed the basis for the conviction is as follows. The deceased, Mary Edwards, was appellant’s wife. On the day Mary Edwards was murdered, Mary Brown, the couples’ daughter, had been visiting for Thanksgiving dinner. Appellant and his wife had a variety of disagreements that night and when the deceased left to escort her daughter home, appellant allegedly threatened, “I will take care of you when you get home”. Ms. Brown did not see her mother alive again.

The next day, various family members tried unsuccessfully to contact Mary Edwards by phone. One daughter, Daisy, went to her mother’s home and looked through the mail slot. She could see appellant in a reclining chair. The family assembled and called the police. When the police broke in they found Mary Edwards dead on the kitchen floor. The police also found appellant in a reclining chair, apparently very intoxicated and unresponsive. There was blood on his socks and shoes. A .38 snub nose revolver was on the table next to appellant. The police also noted that there were no signs of a break-in and that there was a German Shepard dog in the yard. An almost-empty bottle of vodka was on the dining room table. The police could not rouse appellant and he was taken to the hospital.

Ballistics testimony indicated that at least five rounds were fired from the recovered .38 revolver. Three spent shots were removed from the deceased’s body and two spent cartridges were found near her on the kitchen floor. No fingerprints could be obtained from the gun. The blood on appellant’s socks and shoes matched the decedent’s blood type.

The defense presented no evidence. However, in closing argument to the jury, defense counsel argued that the Commonwealth failed to establish that it had been appellant who shot Mary Edwards and theorized:

You have a man found in the same house as the body. At some point after she had been shot and he was in the general vicinity and nothing more has been established.
You have a person who is in a recliner who would have been passed out for hour upon hour. A person who potentially might have been able to even stagger into the kitchen area where he hits blood on his sock before he goes back to the recliner.
He could have been in that recliner three hours or for 12 hours.
Something had happened in that 12-hour period. If something happened would William Edwards be aware of it? Most likely not. He was unaware of anything going on around him.

The jury was instructed on first degree murder, third degree murder and voluntary manslaughter. The jury was charged that voluntary intoxication could reduce murder in the first degree to third degree murder. The jury was also charged that to be voluntary manslaughter, the killing would have to be in the “heat of passion”. The jury convicted appellant of third degree murder.

It is undisputed that defense counsel requested the court not to instruct the jury on the principle that “no adverse inference” could be drawn from appellant’s failure to take the witness stand. Despite the request, the trial court instructed the jury as follows:

As he sits here with us this morning William Edwards is innocent of the charge of criminal homicide. He remains innocent unless and until you conclude that the Commonwealth has proven him guilty beyond a reasonable doubt.
He has no duty to defend himself. He does not have to prove his innocence. The Commonwealth has the burden of proving his guilt.
He has elected in this case to present no defense. And he has elected not to testify. That is his right, and you may draw no inference adverse to him from that election; for in a criminal trial under our system of justice the accused does not have to testify in a matter which he is accused.

The Commonwealth concedes that, in view of the principle enunciated in this court’s en banc opinion in Commonwealth v. Rasheed, supra, it was error for the trial court to give the no-adverse-inference charge in the face of a defense request that the charge be omitted. The Commonwealth argues, however, that in light of the circumstances of this case, the error was harmless beyond a reasonable doubt. We agree.

The same case which articulated the rule that it is error for the court to give a no-adverse-inference charge in spite of a contrary defense request, also instructs us that the inquiry does not end there. In Rasheed this court stressed that we must then “look at the entire record of the trial at which the error occurred to determine if it is harmless error.” 392 Pa.Super. at 285, 572 A.2d at 1235. With respect to the law of harmless error, this court has noted:

The harmless error doctrine reflects a fundamental principle which we think is particularly apt here, i.e., ‘that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the fundamental fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). If this court can conclude beyond a reasonable doubt that the error complained of did not contribute to the verdict, no new trial is required.

Commonwealth v. Weisman, 401 Pa.Super. 62, 71, 584 A.2d 980, 985 (1990), appeal denied, 528 Pa. 644, 600 A.2d 195 (1991).

More specifically, the standard we use to judge the impact of the error in cases where a trial court ignores a defense preference that a no-adverse-inference instruction be omitted was articulated in Rasheed. In Rasheed, we stated that, “we must discern if the error in the charge, in any way, contributed to the verdict so as to render it less than a true verdict.” 392 Pa.Super. at 287, 572 A.2d at 1236. Not only did the court in Rasheed refuse to find that in every case the giving of such an instruction over defense objection is reversible error per se, in addition it found that in that very case the error in instructing the jury was harmless. We see nothing in the instant case which distinguishes it from Rasheed. In fact, we find that the argument for a finding of harmlessness is even more persuasive.

It is the Commonwealth’s burden to persuade this court that the error in the case was harmless beyond a reasonable doubt. In fact, the mere existence of the stringent “reasonable doubt” standard for finding harmless error casts the burden on the Commonwealth and already has provided the defendant (i.e., the one allegedly harmed by the error) with the benefit of the doubt.

In order to carry its burden the Commonwealth argues that, given the circumstances of this case, there was no reasonable possibility that the error contributed to the verdict. This argument is properly based on the facts of the case, the nature of the error, the defense strategy and closing argument and the overall impact of the no-adverse-inference instruction. The Commonwealth has also, in part, sustained its burden to establish harmlessness by effectively rebutting all of appellant’s arguments that the error was reversible. The burden of the Commonwealth is to persuade the reviewing court that based on the record a true verdict was reached. In fact, one commentator, in discussing the issue of “burdens” in the harmless error context, noted:

Chief Justice Traynor of the California Supreme Court suggested that the entire issue of presumptions and burdens was largely meaningless in the harmless error context. In evaluating what effect, if any, an error had on the jury’s verdict, the appellate court may look only to the record before it. The function of a party carrying the burden is simply to suggest, in light of that record, how prejudice may or may not have occurred.

LaFave and Israel, Criminal Procedure, § 26.6, 999 (1985) (citation omitted).

The Commonwealth has fully, and in our view persuasively, fulfilled its function in aiding this court in its harmlessness determination.

As noted above, we find the argument for finding harmless error here even more compelling than it was in Rasheed. In Rasheed, the charge was rape and the offense was alleged to have occurred at knife-point at the complainant’s apartment. Rasheed and the complainant had known one another very slightly before the attack. Prior to the assault, complainant had invited Rasheed into her apartment for a beer. While corroborating physical evidence of intercourse was offered by the Commonwealth, the knife was never recovered and the use of the knife constituted the forcible compulsion aspect of the rape. Rasheed did not testify. The trial court instructed the jury that it could draw no adverse inference from the defendant’s silence even though defense counsel opposed the instruction. However, although the Rasheed court held the giving of the instruction was error, it also found it to be harmless beyond a reasonable doubt. The Rasheed court stated that “[although the charge may have called attention to the fact that the appellant did not testify, no evidence was offered on behalf of the defendant and the charge did not call the jury’s attention to anything of which it was not aware”. 392 Pa.Super. at 287, 572 A.2d at 1236.

Precisely the same conclusion must be reached in the instant case. No evidence was offered on appellant’s behalf here. We find appellant’s argument that the jury’s verdict of third degree murder “may have been a compromise” and that the Commonwealth’s case was “significantly bolstered by the court-underscored silence of Mr. Edwards” wholly unpersuasive. The third degree murder verdict completely comported with the evidence of voluntary intoxication coupled with a killing done with malice, although the record also contains evidence from which the jury could have inferred premeditation. The record does not support the conjectural suggestion that the jury “compromised” in reaching its verdict, even if we were to assume, as does appellant, that the court’s instruction did highlight appellant’s silence.

Furthermore, in our view, it is highly speculative to suggest that in the absence of the court’s instruction the jury would not have noticed or remembered that appellant did not testify. Appellant argues that the judge’s instruction “highlighted” his silence. On this point, we agree with Judge Kelly who stated in his concurring and dissenting opinion in Rasheed:

[W]e can hardly expect a jury of twelve reasonably intelligent citizens to overlook the fact that the defendant, whose fate they are to determine, sat silent throughout the proceedings.

392 Pa.Super. at 291, 572 A.2d at 1238 (Kelly, J., concurring and dissenting).

The rationale underlying the cautionary instruction is the fear that the jury will be “left free to draw negative inferences from the defendant’s decision to exercise his or her constitutional privilege” by not testifying. Commonwealth v. Lewis, 528 Pa. 440, 450, 598 A.2d 975, 980 (1991). It is the protection against this “insidious danger” which underlies the supreme court’s recent, stern admonition in Lewis that “(jjuries must be told in no uncertain terms that no adverse inference may be drawn from a defendant's failure to take the stand____”. Id.

Here, the trial court eliminated, insofar as is possible, the “insidious danger” that the jury would negatively assess appellant’s silence against him by instructing them that the law forbids them to do so. To conclude otherwise would be to assume that the jury failed to adhere to the court’s instructions. Thus, by giving the no-adverse-inference instruction, albeit in the face of defense opposition, the trial court protected against the primary danger associated with appellant’s exercise of his constitutional right to remain silent.

Having eliminated the danger that appellant’s silence would be used against him by the giving of a cautionary instruction, what harm to the integrity of the jury’s verdict remains from the trial court’s failure to honor appellant’s request? In light of the particular circumstances of this case, it is especially unlikely that the jury even awaited appellant’s “version” of the events. When the police and neighbors discovered the victim's body, appellant was comatose in the apartment apparently from intoxication. He remained in that state for quite some time. The thrust of the defense was that appellant was not the killer because he was too incapacitated to have shot his wife or even to know what had happened. Appellant’s chief argument was that appellant “was unaware of anything going on around him”, that anyone could have come in to kill the victim without appellant knowing it and that, therefore, he was incognizant of how the death actually occurred. Therefore, appellant’s silence was entirely consistent with his theory of the case and the jury would not reasonably have expected exculpatory testimony from his lips. Certainly, if this court found harmless error in Rasheed, where the defendant was the only witness capable of giving evidence challenging the complainant’s claim of forcible intercourse and in support of a consent defense, the error is harmless here, where appellant’s failure to take the stand was a natural outgrowth of his own defense strategy.

Appellant conjectures that the jury may have compromised on the verdict. We find this type of speculation unpersuasive. The jury was instructed regarding the Commonwealth’s unshifting burden of proof and told that it could draw no negative inferences from defendant’s choice not to testify. The defense was that the Commonwealth’s case was purely circumstantial and that appellant knew nothing of the crime. Nothing in the case indicates that the jury was grappling with any issues regarding intent or provocation which even arguably could have reduced its verdict to voluntary manslaughter. Other than the voluntary intoxication evidence which apparently reduced the verdict from first degree murder to third degree murder, there was not another piece of evidence which could have led the jury reasonably to conclude that appellant killed in the heat of passion or was provoked. We find it impossible to conclude that the trial court’s error in giving the cautionary instruction could have, in any way, contributed to the verdict or negatively influenced the jury’s deliberations.

Judgment of sentence affirmed.

JOHNSON, J., files a dissenting Opinion.

JOHNSON, Judge,

dissenting.

I agree with the Majority’s determination that the trial court committed error by instructing the jury to draw no adverse inference from Edwards’ failure to testify despite defense objection. See Commonwealth v. Rasheed, 392 Pa.Super. 280, 572 A.2d 1232 (1990), appeal pending 172 E.D. Appeal Docket 1991. However, I am unable to join in the conclusion that the error was harmless, because I am not convinced that this instruction could not have contributed to the verdict rendered. Accordingly, I must dissent.

The Majority correctly determines that, in Rasheed, this court held, en banc, that a trial court commits error by instructing the jury that no inference is to be drawn from a defendant’s decision not to testify where the defendant specifically and timely requests that no such instruction be given. See also, Commonwealth v. Danzy, 225 Pa.Super. 234, 310 A.2d 291 (1973). The Majority also correctly determines that, under Rasheed, a defendant is entitled to a new trial unless that error is found to have been harmless. Rasheed, 392 Pa.Super. at 285, 572 A.2d at 1235. I depart from that part of the Majority’s opinion, however, which concludes that the error complained of was harmless.

In Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), our Supreme Court held that an error can only be harmless if the appellate court is convinced beyond a reasonable doubt that the error is harmless. Id. 476 Pa. at 405-06, 383 A.2d at 162. The court went on to define an error as harmless where it could not have contributed to the verdict. Id. 476 Pa. at 409, 383 A.2d at 164. “Whenever there is a ‘reasonable possibility’ that an error ‘might have contributed to the conviction,’ the error is not harmless.” Id. 476 Pa. at 409-10, 383 A.2d at 164, citing Commonwealth v. Davis, 452 Pa. 171, 178, 305 A.2d 715, 719, quoting Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Court has recently reiterated these principles in Commonwealth v. Lewis, 528 Pa. 440, 452-453, 598 A.2d 975, 981 (1991).

The burden of establishing that an error was harmless rests with the Commonwealth. Story, 476 Pa. at 406 n. 11, 383 A.2d at 162 n. 11 (citing Chapman; Davis; Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968)). Having carefully reviewed the Commonwealth’s brief in this case, it is apparent to me that no attempt has been made to construct an argument which would lead to a conclusion of harmless error. Instead, the Commonwealth has chosen to merely respond to Edwards’ three contentions that the error was not harmless. Therefore, I have difficulty ascertaining the basis upon which the Commonwealth attempts to carry its burden. Nevertheless, my review of the Commonwealth’s responses to Edwards’ arguments reveals the following assertions in favor of a conclusion that the error was harmless: 1) the evidence of guilt was overwhelming; 2) the instruction was consistent with the trial strategy of the defense; and 3) the instruction did not prevent the rendering of a “true verdict.”

I would reject the Commonwealth’s contention, and the Majority’s conclusion, that overwhelming evidence of Edwards’s guilt rendered the error harmless. Initially, I would note that, in Rasheed, where the appellant also claimed prejudice on the grounds that the jury had been instructed on the “no adverse inference” charge over his objection, the majority concluded that the proper focus in such cases is not upon whether the evidence is overwhelming. Rasheed, 392 Pa.Super. at 287 n. 6, 572 A.2d at 1236 n. 6. This precedent forces the conclusion that an overwhelming evidence argument alone cannot succeed.

In any event, I have reviewed the transcript of the trial in its entirety, and, although I find that the evidence produced by the Commonwealth was clearly substantial, I am unable to say with assurance that honest, fair-minded jurors could not have rendered a different verdict. See Story, 476 Pa. at 413, 383 A.2d at 166. The jury was instructed on the elements of first degree murder, third degree murder and voluntary manslaughter, and it returned a guilty verdict on the charge of third degree murder. To have rendered that verdict, the jury had to have found that the Commonwealth failed to prove beyond a reasonable doubt that the killing was “intentional,” as that term is defined in 18 Pa.C.S. § 2502(d). (“Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing”). To reject the charge of voluntary manslaughter, the jury also had to find that the defendant had not been provoked. See 18 Pa.C.S. § 2503(a). While I believe that the evidence presented was sufficient to support the verdict actually rendered, it is not so clear that the evidence pointed overwhelming to third degree murder as opposed to voluntary manslaughter, and that the trial court’s error could not have contributed to the jury’s decision. Yet, it is the Commonwealth’s burden to demonstrate exactly that. Sto ry, 476 Pa. at 409, 383 A.2d at 164. Hence, I cannot agree with the majority’s conclusion that the error was harmless because the evidence of guilt was overwhelming.

The Commonwealth also contends that the “no adverse inference” instruction was harmless because it was consistent with the strategy of the defense. The Commonwealth argues that the defense consisted of a claim that, because of Edwards’ severe intoxication on the night of the murder, he was unable to shed any light on what had happened.

It is true that, during closing argument, defense counsel stressed Edwards’ drunken condition and argued that the evidence was consistent with an intrusion by a third person who committed the murder while Edwards was comatose. That defense, however, would not preclude Edwards from testifying as to issues which arose during the trial. Although Edwards’ decision not to testify was arguably consistent with having been comatose during the murder, it simply does not follow that Edwards obviously knew nothing which could further the jury’s understanding and consideration of the events of the evening. For example, there was testimony that Edwards and the victim were involved in a heated disagreement when their daughters arrived for dinner, but no one who testified explained the nature or cause of that disagreement. Similarly, no one was able to testify as to Edwards’ motivation for initiating a scuffle with his daughter after dinner outside the house. Consequently, the instruction may have reminded the jury that Edwards chose not to take the witness stand to explain what was clearly within his knowledge. Further, the jury may have believed that Edwards should have testified that he could remember nothing. Their awareness that he chose not to testify may have been heightened by the court’s decision to instruct them that Edwards’ choice not to testify was Constitutionally guaranteed. Accordingly, I would also reject the Commonwealth’s argument that consistency between Edwards’ trial strategy and the instruction rendered the error harmless.

Finally, the Commonwealth argues that Rasheed dictates that a charge regarding “adverse inferences” is harmless unless it prevented the jury from rendering a true verdict. Id. 392 Pa.Super. at 287, 572 A.2d at 1236. The Commonwealth contends that this court may infer that drawing the jury’s attention to Edwards’ failure to testify could not have “bolstered” the Commonwealth’s case because “the verdict of guilty of third degree murder is completely consistent with the evidence presented at trial and the instructions of the court.” Appellee’s Brief at 14. Where other reasonable verdicts could have been rendered, however, consistency between the evidence and the verdict sheds little light on whether the error could have contributed to the verdict. I am simply unable to conclude beyond a reasonable doubt that this error could not have contributed to the jury’s selection of third degree murder, while rejecting the charge of voluntary manslaughter.

My conclusion that the Commonwealth has failed to demonstrate that the error was harmless is guided by our Supreme Court’s decision in Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), wherein the Court stated: “The view of this Court that there exists a strong disposition on the part of lay jurors to view the exercise of the Fifth Amendment privilege as an admission of guilt is well established.” Id. 499 Pa. at 581-82, 454 A.2d at 539. That Court continued:

“We would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.” Walker v. United States, [404 F.2d 900 (5th Cir.1968) ], ... It is clear that “[t]he privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.” Slochower v. Board of Higher Ed. of N.Y., [350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692].

Turner, 499 Pa. at 583, 454 A.2d at 539, quoting Commonwealth v. Haideman, 449 Pa. 367, 371, 296 A.2d 765, 767 (1972).

Accordingly, I would conclude that the Commonwealth has failed to demonstrate beyond a reasonable doubt that this error could not have contributed to the verdict. I would reverse judgment of sentence and remand for further proceedings.