author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    508 A.2d 568
    COMMONWEALTH of Pennsylvania v. William S. BRADFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed May 2, 1986.

      Joshua D. Lock and Lawrence A. Kalikow, Harrisburg, for appellant.
    Richard L. Guida, Harrisburg, for Com., appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WIEAND, Judge:

William S. Bradfield was found guilty by a jury of intentionally and deliberately murdering Susan Reinert and her two children, Karen and Michael. Post-verdict motions were dismissed, and Bradfield was sentenced to serve three consecutive life sentences. This appeal followed.

Susan Reinert’s battered body was discovered in the trunk of her car in Dauphin County on June 25, 1979. The bodies of her two children have never been found. Mother and children were last seen alive entering Ms. Reinert’s car in Delaware County on June 22, 1979. Bradfield argues on appeal that he should not have been tried in Dauphin County because there was no evidence that a murder had been committed in that county. We disagree.

“For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county.” Commonwealth v. Tumolo, 455 Pa. 424, 427, 317 A.2d 295, 297 (1974). See: Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 206 A.2d 43 (1965); Commonwealth v. Winter, 324 Pa.Super. 258, 471 A.2d 827 (1984); Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983); Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979); Commonwealth v. Frey, 258 Pa.Super. 288, 392 A.2d 798 (1978); Commonwealth v. Creamer, 236 Pa.Super. 168, 345 A.2d 212 (1975); Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972); Commonwealth v. Marino, 213 Pa.Super. 88, 245 A.2d 868 (1968), aff'd, 435 Pa. 245, 255 A.2d 911, cert. denied sub. nom., Rispo v. Pennsylvania, 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771 (1969); Commonwealth v. Tarsnane, 170 Pa.Super. 265, 85 A.2d 606 (1952). While the Commonwealth bears the burden of proving facts sufficient to establish jurisdiction, it may rely upon circumstantial evidence to meet its burden. Commonwealth ex rel. Cha-tary v. Nailon, supra.

The Crimes Code, at 18 Pa.C.S. § 102(c), provides that either the death of a homicide victim or the bodily impact causing death is an event sufficient to confer jurisdiction upon the territory in which such event occurred. Moreover, “if the body of a homicide victim is found within this Commonwealth, it is presumed that [the death] occurred within this Commonwealth.” Id. This rule was prompted by unique problems which arise in ascertaining the situs of a homicide for jurisdictional purposes. Although, by its terms, the statute refers to the Commonwealth of Pennsylvania for purposes of applying territorially the law of homicide, the same considerations are applicable to determine in which county a homicide case is to be tried. Thus, in Commonwealth v. Mull, 316 Pa. 424, 175 A. 418 (1934), a case arising prior to enactment of the Crimes Code, the Supreme Court held that the finding of the decedent’s body, with blood beneath it, would be sufficient to support a jury’s finding that a homicide had occurred in Allegheny County. See also: Commonwealth v. Leary, 67 Lanc.L.Rev. 57 (1979). The presumption in this case that an overt act had occurred in Dauphin County was not rebutted or weakened merely because Susan Reinert was last seen alive in Delaware County. We conclude, therefore, that appellant could properly be tried in Dauphin County for the murder of Susan Reinert.

The Commonwealth’s evidence showed the existence of a conspiracy between appellant and an unidentified second person to kill Susan Reinert in order to collect the proceeds of a policy of insurance on her life. The evidence tended to show that the deaths of the children were also brought about as a result of the same conspiracy. Because the death of Susan Reinert, presumed to have occurred in Dauphin County, was an overt act committed pursuant to that conspiracy, that act was sufficient to vest jurisdiction in the courts of Dauphin County to try appellant for the murders of the children committed pursuant to the same conspiracy.

Moreover, the instant proceedings were properly tried in Dauphin County pursuant to the venue provisions of 42 Pa.C.S. § 4551(d). This section provides: “In any case where a multicounty investigating grand jury returns a presentment the supervising judge shall select the county for conducting the trial from among those counties having jurisdiction.” This section of the Judicial Code empowers the supervising judge to designate one county in which several alleged offenses may be consolidated in a single trial. If offenses are otherwise properly consolidated, it is not necessary that the county so chosen be the situs of each and every crime charged. It is enough that one of the offenses being tried occurred in that county.

It is well established that the General Assembly may determine the jurisdiction of the courts of this Commonwealth. See: Pa. Const. art. V, § 10 (Supreme Court’s power to prescribe rules governing the operations of all courts shall not affect the right of the General Assembly to determine the jurisdiction of any court); Commonwealth ex rel. Chatary v. Nailon, supra (court has no jurisdiction over an offense unless it occurred within the county of trial or unless by some statute it need not).

The purpose of the legislature in authorizing the Supreme Court to convene multicounty, investigating grand juries was to enhance the ability of the Commonwealth to inquire into criminal activity or public corruption reaching into several counties. See: 42 Pa.C.S. §§ 4542, 4544. In light of this purpose, it is not reasonable to believe that the legislature intended separate trials in each county where acts of a criminal nature had been committed. Rather, it appears that the legislature intended that the supervising judge would select a single county in which all offenses set forth in a presentment could be tried. Susan Reinert’s body having been found in Dauphin County, the supervising judge could direct that appellant be tried there for all murders arising from the same criminal scheme to kill Ms. Reinert in order to collect the insurance which had been written on her life.

Appellant argues that the multicounty, investigating grand jury lacked authority to issue a presentment against him because his alleged crimes did not fall within the statutory definition of organized crime or public corruption which the legislature had authorized the grand jury to investigate. There is no merit in this argument.

Organized crime is defined in part as “any continuing criminal conspiracy or other unlawful practice which has as its objective: (1) large economic gain through fraudulent or coercive practices. . .” 42 Pa.C.S. § 4542. The evidence presented at trial established that appellant’s activities had constituted a “criminal conspiracy or other unlawful practice,” and that these activities had had as their objective “large economic gain through fraudulent or coercive practices.” It was also necessary that these activities be “continuing.” We conclude, however, that appellant’s conspiracy was continuing. It did not end with the deaths of the insured mother and her children. The murders were but one step in the ongoing conspiratorial scheme to recover life insurance proceeds.

If, during an investigation of ongoing criminal activity, a grand jury comes upon criminal activity which has been completed, it is not required to close its eyes thereto. A contrary interpretation of the statute would be unreasonable. See: Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980) (grand jury did not exceed its authority in issuing presentment against defendant regarding improper sale of state property where grand jury had been impaneled to investigate corruption of supervisory personnel of Penn-DOT, evidence of improper sale arose in the course of that investigation, and sale had been made possible by the submission of false report by defendant, a maintenance supervisor).

During the proceedings before the grand jury in this case, Paul Tressler, a county prosecutor appointed to assist the Office of the Attorney General in presenting this matter to the grand jury, said in response to an expressed fear that members of the grand jury were not hearing all of the facts:

I want to make that very plain to you. There is nobody in this courtroom that wants to convict this person more than Rick Guida and myself, and in the end we are gonna be the ones who stand up and ask a jury of twelve people to believe us. The only thing we are going to be able to give the jury is what is admissible evidence.
So, sometimes if you think we are abrupt with you, I apologize. I get very emotional about this case, not from my own standpoint, those kids would have been 14 and 15 years old now. They would have been going to Disney World. They would have been playing softball and in the band. They have been denied the right.
If we get an indictment out of this grand jury, by God, it is going to be one that is going to stick. If you people don’t understand that, I apologize, but that’s the way it is going to be because I want to convict somebody. (N.T. Pre-Trial Conference, at 4-5.)

Appellant contends that Tressler’s remarks concerning the Reinert children were inflammatory and prejudicial and, therefore, required that the presentments returned against appellant be quashed.

The decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion____ A court, moreover, “should not sustain a motion to quash ... except in a clear case where it is convinced that harm has been done to the defendant by improper conduct that interfered with his substantial rights.”

Commonwealth v. Niemetz, 282 Pa.Super. 431, 439, 422 A.2d 1369, 1373 (1980), quoting Commonwealth v. O’Brien, 181 Pa.Super. 382, 397, 124 A.2d 666, 674 (1956), overruled in Commonwealth v. Brabham, 225 Pa.Super. 331, 309 A.2d 824 (1973). See: Commonwealth v. Gemelli, 326 Pa.Super. 388, 474 A.2d 294 (1984); Commonwealth v. Brownmiller, 141 Pa.Super. 107, 14 A.2d 907 (1940).

The comments of counsel in the instant case were not so egregious, in view of the totality of the evidence presented to the grand jury, that the court was required to invalidate the presentment. There was ample credible evidence to support the presentment. See and compare: Commonwealth v. Evans, 190 Pa.Super. 179, 154 A.2d 57 (1959) (inflammatory remarks made by Governor regarding the matter under investigation by the grand jury did not invalidate the subsequent indictments based on other, proper evidence), aff'd, 399 Pa. 387, 160 A.2d 407, cert. denied, 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 194 (1960); United States v. Riccobene, 451 F.2d 586 (3d Cir.1971) (prosecutor’s remarks to grand jury that key government informant would not testify before them because the proposed defendants were connected with organized crime and could harm him, while improper, did not require invalidation of indictment where there was an abundance of competent evidence before the grand jury that supported the indictment). Therefore, the court did not err in denying appellant’s motion to quash.

Appellant also contends that the trial court should have dismissed the presentment on the basis of the law stated in 18 Pa.C.S. § 110. He argues that prosecutions for murder and conspiracy were barred by a 1981 conviction in Delaware County for theft by deception from Susan Reinert. The theft, murder and conspiracy charges, he contends, arose from the same criminal episode.

Section 110 of the Crimes Code provides, in part:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title ... and the subsequent prosecution is for:
(ii) any offense ... arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court____

18 Pa.C.S. § 110. In Commonwealth v. Hude, 500 Pa. 482, 491, 458 A.2d 177, 181 (1983), the Supreme Court stated that “in defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be considered.” The court quoted approvingly the following language taken from a law review article.

[I]n ascertaining whether a number of statutory offenses are “logically related” to one another, the court should initially inquire as to whether there is a substantial duplication of factual, and/or legal issues presented by the offenses. If there is duplication, then the offenses are logically related and must be prosecuted at one trial. The mere fact that the additional statutory offenses involve additional issues of law or fact is not sufficient to create a separate criminal episode since the logical relationship test does not require “an absolute identity of factual backgrounds.”
* * * * 4s *
The temporal relationship between criminal acts will be a factor which frequently determines whether the acts are “logically related.” However, the definition of a “single criminal episode” should not be limited to acts which are immediately connected in time.

Id., 500 Pa. at 491, 458 A.2d at 181-182, quoting Comment, Commonwealth v. Campana and Section 110 of the Crimes Code: Fraternal Twins, 35 U. of Pitts.L.Rev. 275, 286-287 (1973). In Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979), this Court stated that the same criminal episode requirement is satisfied where “ 'an offense is a necessary step in the accomplishment of a given criminal objective ... [or where] the commission of an additional offense ... result[s] from the attempt to secure the benefit of a previous offense or to conceal its commission. ...’” Id., 264 Pa.Superior Ct. at 228, 399 A.2d at 750, quoting Model Penal Code § 1.08 Comment at 37 (Tent. Draft # 5, 1956).

Appellant’s 1981 conviction for theft by deception arose from an incident which had occurred between January and April of 1979. In that incident appellant had allegedly received $25,000 from Susan Reinert for the purpose of investing it on her behalf. The money had never been invested but, instead, had been retained by appellant for his own use. The killings on which appellant’s present convictions rested had occurred in June of 1979 and had been committed by appellant and a co-conspirator for the purpose of obtaining the proceeds of a $730,000 life insurance policy purchased on Reinert’s life, as well as the assets forming a part of her estate. The homicide offenses were neither temporally nor logically related to the prior crime of theft. Not only did the thefts occur several months before the homicides, but the thefts were logically dissimilar and separate from the homicides. The only commonality pertained to the course of conduct by which appellant gradually was able to gain the trust of his victim. Beyond the common background facts, however, the theft and the killings involved separate and dissimilar acts and were not episodically connected.

It cannot be said that the theft and homicides were necessary steps in the accomplishment of a given criminal objective. See: Commonwealth v. Edwards, supra. While appellant is correct that both offenses were allegedly committed to obtain large sums of money, the means adopted by appellant to acquire the separate sums were temporally unrelated and factually dissimilar. Indeed, when appellant was able to persuade Reinert to entrust him with $25,000, Reinert had not yet executed the will naming appellant as beneficiary of her estate and had not purchased all of the life insurance policies which were the motives for her subsequent murder. Because the theft and homicide offenses were neither temporally nor logically related, they did not arise out of a single criminal episode. The trial court did not err in refusing to dismiss the informations on this basis.

Moreover, even if the offenses had arisen from the same episode, section 110 would not have required that the present prosecution be dismissed. At the time that appellant was charged with the theft offense, the Commonwealth lacked sufficient evidence to convict appellant of the homicide offenses. It was not until after appellant had been convicted of theft that the Commonwealth became aware of evidence directly linking appellant to the murders of Reinert and her children. Thus, the Commonwealth could not have charged appellant with the homicide offenses at the same time that he was charged with theft. Even though the cumulative effect of the circumstantial evidence known to the Commonwealth at the time appellant was charged with the theft offense might have been sufficient to sustain a guilty verdict for the homicide offenses, the Commonwealth was not required to charge appellant with offenses when it was unsure of the ability of its evidence to sustain a conviction. See: Commonwealth v. Kysor, 334 Pa.Super. 89, 94, 482 A.2d 1095, 1098 (1984). Neither was it required to delay charging appellant with the theft offense when such a delay would have permitted the statute of limitations on the theft offense to expire.

Appellant contends next that the trial court erred when it denied a pre-trial request for change of venue because of extensive publicity. He argues that pre-trial publicity pertaining to the deaths of Susan Reinert and her children was so pervasive and prejudicial that a fair trial could not be had in Dauphin County.

“Our cases make it clear that an application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion.” Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 291 (1978) (citing numerous cases). Generally, a defendant must demonstrate that the pre-trial publicity resulted in actual prejudice in the empaneling of the jury before a claim such as this will be successful. In some instances, however, “there can be pre-trial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting on the defendant any burden of establishing a nexus between the publicity and actual jury prejudice.” Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977), citing Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).

[T]he proper examination to be made by the trial court faced with a request for a change of venue charging that pretrial publicity will deny the accused’s right to be tried by an impartial jury, is to first look at the nature of the content of the publicity. Does it contain references to the accused’s prior record of criminal convictions, if any? Does it expose potential jurors to any confessions or admissions of guilt allegedly made by the accused? Does it point to the accused’s guilt in terms that go beyond objective news reporting and enter the realm of the emotional and of the inflammatory? If the court answers any of these questions in the affirmative, its analysis must proceed to a determination of the likelihood that a significant number of the prospective jurors in the county were, in fact, exposed to such publicity. If the trial court answers “yes” to any of the above three questions concerning the content of the pretrial publicity, and if the record shows that there is a likelihood that a significant portion of the population was exposed to publicity of that nature, refusal to grant a change of venue would be an abuse of discretion unless the record also indicates that a sufficiently long period of time has passed between the time of the publicity and the time of the application for a change of venue for the court to conclude that any prejudice which may have been initially created by the publicity has been dissipated.

Commonwealth v. Frazier, supra, 471 Pa. at 131-132, 369 A.2d at 1229-1230 (emphasis in original).

Most of the publicity about the death of Susan Reinert occurred in 1979, when her body was found, and in 1981 when Bradfield was convicted of theft. This publicity had been largely dissipated by the time of the homicide trial because of the intervening time. In April, 1983, and continuing until the start of trial in October, 1983, however, there were renewed media references to appellant’s 1981 theft conviction and an additional reference to an admission of guilt allegedly made by appellant. The theft conviction and an alleged statement by appellant to Proctor Nowell that he 'had been present when Reinert and the children were killed but that he had not killed them himself were discussed by the media. This information was also received in evidence at trial. There were further references by the media, made pre-trial, to an entry in appellant’s diary that he had wished to kill Susan Reinert for insurance money, and also to a statement allegedly made to Arnold Winder, an inmate at the State Correctional Institute at Camp Hill, that appellant had been involved in the murders and that he wanted to kill three witnesses who had testified against him. These latter facts were not admitted into evidence. We examine these references and their effect to determine whether a significant number of prospective jurors were exposed to the prejudicial publicity.

The articles received into evidence came primarily from major newspapers in the Harrisburg area, i.e., The Patriot and The Evening News. The statistics received in evidence showed that at all relevant times the circulation of the Patriot had been 25% of the total voting population of Dauphin County; the circulation of The Evening News had been 34%; and the Sunday Patriot’s circulation had been 62%. Between April 6, 1983, the date of appellant’s arrest, and October 11, 1983, the date on which the homicide trial commenced, 189 calendar days elapsed. During this time, 44 articles pertaining to the case appeared in the printed media. Not all of the articles published during this period contained references to prejudicial material, however, and many did not appear on the first page.

“ ‘In reviewing the trial court’s decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant’s] guilt or innocence as a result of the pre-trial publicity.’ ” Commonwealth v. Casper, supra, quoting Commonwealth v. Kichline, 468 Pa. 265, 274, 361 A.2d 282, 287 (1976).

“It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

Commonwealth v. Casper, supra, 481 Pa. at 152, 392 A.2d at 292, quoting Irvin v. Dowd, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 756 (1961).

In the instant case 92 jurors were individually examined. While most of the prospective jurors had read something about the case, only 8 had formed a fixed opinion of appellant’s guilt. All of the jurors ultimately selected stated that they had no fixed opinions regarding appellant’s guilt or innocence and that they could put aside anything they had read or heard and could decide the case solely on the basis of the evidence presented at trial. Therefore, there is no evidence that appellant suffered any actual juror prejudice as a result of pre-trial publicity.

We conclude also that the pre-trial publicity was not so pervasive that the entire community was inflamed in such a way as to make it impossible for appellant to receive a fair trial. As previously stated, only 8 of the 92 jurors examined had formed a fixed opinion of appellant’s guilt. In Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984), the Supreme Court concluded that certain prejudicial material which had been published pre-trial was not “pervasive” because 7 of the 88 prospective jurors questioned had indicated that they had formed a fixed opinion as to the defendant’s guilt. The Court said:

[I]t is impossible to conclude that the publicity was pervasive or that the community had been saturated with prejudicial communication where fewer than 8% of the jurors questioned indicated that they had a fixed opinion as to the guilt of [the defendant]. Compare: Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066 (1980) (change of venue required where 53% of prospective jurors questioned were excused because of prejudgment, i.e., a “fixed and irrevocable opinion on guilt”); Commonwealth v. Casper, supra (no change of venue required where 2 out of 42 prospective jurors knew of case and could not decide on the basis of evidence at trial); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975) (no change of venue required where 31 out of 139 prospective jurors questioned had formed fixed opinions); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971) (no change of venue required where 26 of 138 jurors questioned had formed opinion).

Id. 504 Pa. at 134-135, 470 A.2d at 503, citing Commonwealth v. Cohen, supra, 489 Pa. at 186-187, 413 A.2d at 1077. In the instant case, less than 9% of the prospective jurors questioned had formed fixed opinions as to appellant’s guilt. There is, therefore, no indication from the record that pre-trial publicity was so pervasive that the community was predisposed to appellant’s guilt.

The Commonwealth’s theory at trial was not that appellant had physically killed Susan Reinert and her children but that appellant was criminally liable for their deaths as an accomplice or co-conspirator. The existence of a conspiracy, therefore, was a necessary element in the Commonwealth’s proof. Under these circumstances, the trial court did not abuse its discretion in allowing the charges of conspiracy and homicide to be tried at the same time.

The trial court allowed testimony by witnesses who had been told by Susan Reinert that she intended to marry appellant and move to England, that she intended to give appellant her deceased mother’s engagement ring so that he could have it reset, and that she intended to give appellant $25,000 for the purpose of investing in a high yield savings certificate. The trial court ruled that these statements were admissible to show Reinert’s state of mind even though they were in the nature of hearsay. Appellant, apparently conceding that these statements were within the parameters of the state of mind exception to the hearsay rule — at least he does not argue otherwise — contends that the receipt of these statements violated his constitutional right to confront his accuser.

Although a fundamental right, [the] right of confrontation is not absolute. In certain circumstances, the admission of hearsay evidence does not violate the constitutional guarantee; in others, its introduction is constitutionally repugnant____ In delineating the line between admissible and inadmissible hearsay in a criminal case, it is ... necessary to assess the purpose of the proferred evidence and the risks inherent in its admission.

Commonwealth v. McCloud, 457 Pa. 310, 312, 322 A.2d 653, 655 (1974). In Commonwealth v. Thomas, 443 Pa. 234, 279 A.2d 20 (1971), the trial court admitted statements made by a homicide victim which tended to show the existence of a relationship between the defendant and the victim. On appeal, the Supreme Court held that the admission of these statements, to show state of mind, had not violated the defendant’s confrontation rights. Moreover, the Court observed, the declarant had been the victim, who was unavailable, and the existence of the relationship was shown by other evidence, the admissibility of which was not questioned. Id., 443 Pa. at 243-244, 279 A.2d at 25.

In the instant case, the evidence of which appellant complains was neither a crucial nor substantial portion of the Commonwealth’s case. The evidence showed merely that Reinert and appellant had been romantically involved and that she had entrusted him with things of value. We conclude that this evidence was not prejudicial. The jury could consider and evaluate the evidence only as showing Susan Reinert’s trust of appellant. That such a relationship existed was established circumstantially by other evidence. The admission of this evidence does not require a new trial.

In Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984), the Supreme Court considered the right of the Commonwealth to ask prospective jurors about their opinions regarding the death penalty. The Court said: “Simply questioning potential veniremen on their position regarding the death penalty, or excluding those who are strongly opposed to it and cannot impose it under any conditions, does not necessarily produce a prosecution oriented jury.” Id., 505 Pa. at 165, 477 A.2d at 1316, citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972); Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971). Therefore, we reject appellant’s argument that he was denied a fair trial because of the questions asked by the Commonwealth during voir dire or by the peremptory challenges exercised by the Commonwealth. Appellant has failed to show that the exclusion of prospective jurors opposed to the death penalty caused prejudice. The trial court did not err by refusing to grant a new trial on this basis. See: Commonwealth v. Romeri, 314 Pa.Super. 279, 460 A.2d 1139 (1983), aff'd, 504 Pa. 124, 470 A.2d 498, cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984).

Similarly, appellant’s contention that the trial court should have required the Attorney General to state on the record the reason for each peremptory challenge is without merit. “Peremptory challenges, historically and by definition, are arbitrary and perhaps even irrational challenges to the seating of a juror. They are totally subjective and not subject to scrutiny or examination.” Commonwealth v. Henderson, 497 Pa. 23, 29, 438 A.2d 951, 954 (1981).

Appellant’s contention that a new trial is necessary because of alleged bystander misconduct is unsupported by the record. Appellant avers that during the course of the trial, while the jury was being transported to or from the courthouse, a citizen bystander shouted “Hang him”. The record, however, does not contain any reference to this incident. Thus, not only are we unable to ascertain whether this incident did in fact occur, but we are also unable to determine whether any of the jurors heard the remark. Appellant’s argument in this regard, therefore, must fail. See: Commonwealth v. Doyle, 275 Pa.Super. 373, 390, 418 A.2d 1336, 1345 (1979) (court must decide cases on basis of facts in record and cannot accept, as fact, statement appearing only in a party’s brief).

Moreover and in any event, even if appellant had shown that the incident in fact occurred and that one of the jurors had in fact heard and understood it, we are of the view that a new trial would not be warranted. The trial of this case spanned seventeen days and the record is replete with instructions to the jury regarding the fact that its verdict was to be based exclusively on evidence presented during the trial. There is nothing to suggest that the jury’s verdict was influenced in any way by the alleged remark. See: Commonwealth v. Craig, 471 Pa. 310, 370 A.2d 317 (1977).

Appellant argues that the trial court erred by: (1) refusing to grant his request for a continuance; (2) denying him the right to conduct voir dire; (3) refusing to admit into evidence the testimony of Richard Toner pertaining to a statement made to Toner by Jay Smith which allegedly exculpated appellant; (4) denying appellant’s request that the trial court make a pre-trial determination of the existence of any aggravating circumstances justifying the imposition of the death penalty before allowing the prosecution to death qualify the jury; and (5) refusing to permit appellant to present evidence regarding Susan Reinert’s alleged sexual promiscuity. These arguments have been considered carefully by the trial court, and there is nothing to be added to the learned discussion appearing in the court’s opinion.

Finally, appellant contends that his trial counsel was ineffective because he failed to object to the trial court’s charge which allegedly eliminated intent as an element of accomplice liability and for failing to preserve this issue in post-verdict motions. Because appellant is presently being represented by the same counsel who represented him at trial, and because counsel’s ineffectiveness is not apparent from the record, we are directed by prior decisions to remand for the appointment of new counsel to represent appellant. See: Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984).

The judgment of sentence is vacated, at least for the time being, and the proceedings are remanded for the appointment of new counsel to represent appellant in the presentation of his claim that trial counsel was constitutionally ineffective. If it is determined by the trial court that counsel provided appellant with assistance that was constitutionally effective, the sentence may be reimposed. If counsel rendered ineffective assistance, however, a new trial must be granted. Jurisdiction is not retained meanwhile.

OLSZEWSKI, J., files a concurring statement.

OLSZEWSKI, Judge,

concurring:

We have no difficulty in joining the majority since it is clear that Serianni and Fox are controlling, thereby requiring a remand for appointment of new counsel. In doing so, the Court does not pass judgment or come to a conclusion regarding the effectiveness of counsel’s actions in this case; that is a matter to be considered at a later time.

We are concerned not about those attorneys who make honest mistakes, but about those instances in which attorneys deliberately err. It is with considerable interest, therefore, that we take notice that the Philadelphia County Court of Common Pleas has adopted a rule to deal with those instances in which attorneys admit their trial incompetence in filing their appeals. We also have observed that the Pennsylvania Supreme Court Chief Justice has indicated that the Supreme Court Criminal Rules Committee should give serious consideration to the creation of a state-wide rule dealing with the issue of counsel admitting incompetency in order to secure a new trial.

      . The parties have used the terms "venue” and "jurisdiction" interchangeably throughout their discussions of this issue. See: Commonwealth v. Simeone, 222 Pa.Super. 376, 379, 294 A.2d 921, 922 (1972) ("Although the cases present some confusion between the language of jurisdiction and that of venue, there is no doubt that the actuality of what our courts have done is to treat the place of the crime as determining which court has the power to try the offense.").

      . Even if it had been established that the murder of Susan Reinert had been committed elsewhere, the result would be the same. The discovery of her body was necessary to enable appellant to collect the insurance on her life. The placing of her body in Dauphin County, therefore, was an act which was an integral part of the conspiracy and was sufficient to vest jurisdiction in the courts of Dauphin County to try all homicides committed pursuant to the same conspiracy.

      . Although appellant was convicted of conspiracy, the trial court granted appellant’s post-trial motion in arrest of judgment on the grounds that the statute of limitations for those charges had expired. Trial Ct. Op. at 30. At the time trial commenced, the case law provided that the statute of limitations for conspiracy was the same as that of the most serious substantive crime upon which the conspiracy had been founded. See: Commonwealth v. Askin, 306 Pa.Super. 529, 452 A.2d 851 (1982). Because the substantive crime in the instant case was murder, the trial court determined pre-trial that the statute of limitations on the conspiracy charges had not expired. It was not until after trial that the Supreme Court reversed Commonwealth v. Askin, supra, and held that the statute of limitations for conspiracy is always two years. See: Commonwealth v. Askin, 502 Pa. 575, 467 A.2d 820 (1983).

      . There were also articles from The Philadelphia Inquirer, The Philadelphia Daily News and the Sunday Philadelphia Inquirer. The evidence showed, however, that the circulation of these newspapers in Dauphin County was negligible.

      . In its Bill of Particulars, the Commonwealth stated that it did not know exactly what acts appellant had committed in aiding and abetting another person in planning and committing the murders. Appellant argues that if the conspiracy charges had not been part of the prosecution, this statement would have prevented the admission of evidence tending to establish an accomplice theory of liability. We disagree. While the law provides that the Commonwealth is limited to proving the theory advanced in its Bill of Particulars, the information provided by the Commonwealth in this case was not inconsistent with an accomplice or co-conspirator theory of liability for murder.

      . See: U.S. Const. amend VI; Pa. Const. art. 1, § 9.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    508 A.2d 580
    Earl W. TRENT, Jr., Appellee, v. Bruce TROTMAN, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed May 2, 1986.

      Allan H. Star, Philadelphia, for appellant.
    Robert J. Spiegel, Philadelphia, for appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellee, Earl Trent, instituted the instant medical malpractice action against Defendant-Appellant Bruce Trotman, M.D., seeking damages for various problems experienced by the Appellee subsequent to surgical care by the Appellant. The case was tried before a jury, which rendered a verdict for Mr. Trent in the amount of $230,053.30. Timely motions for a judgment n.o.v. and for a new trial were filed by the Appellant, and were thereafter denied by order of the lower court, and judgment was entered for the Appellee on the verdict. The instant appeal followed.

The record shows that in December, 1977, the Plaintiff experienced pain in his lower abdomen. After various diagnostic tests and an examination, Dr. Trotman advised him that two polyps had been found in his colon. The Defendant advised the Plaintiff that a surgical procedure known as a polypectomy would have to be performed. In this procedure, a surgical instrument known as a colono-scope is inserted through the rectum of the patient and to the sigmoid colon. A wire snare device is used in connection with the colonoscope, and the snare is looped around the polyp and mechanically tightened while electrical energy is applied to coagulate the tissue.

The operation was scheduled and performed in the endoscopy suite attached to the Appellant’s office at the Hospital of the University of Pennsylvania on January 19, 1978. During the course of the surgery, the snare broke, and a substitute snare had to be obtained from another nearby hospital. During the time that the substitute snare was being obtained, the colonoscope was retained in place inside the Plaintiff. After the second snare was obtained, the surgical procedure was completed.

The Plaintiff returned home after the surgery, but experienced several problems. Following a number of conversations between the Plaintiff and the Defendant that day, and the next morning, the Plaintiff was readmitted to the Hospital of the University of Pennsylvania on January 20, 1977, and was diagnosed as having a perforated sigmoid colon, and other related medical problems. Following five days of intravenous treatment with antibiotics, the Plaintiff was again subjected to surgery and the perforation in his colon was repaired. As a result of the surgery, a colostomy was required.

The Plaintiff was discharged from the hospital over one month later, but had a readmission nine days thereafter, when his intestine began protruding from the colostomy hole. That problem was remedied by further care at the time of that subsequent admission.

At trial, there was no dispute that the perforation in the Plaintiffs sigmoid colon was thermal in origin, and had been caused by heat produced from the snare. The Plaintiff produced expert testimony, discussed in relevant detail below, in an attempt to establish that in several regards, the procedure followed by the Defendant physician departed from accepted reasonable medical standards and practices. As would be expected, the Defendant, and another physician produced as an expert, testified that the procedures employed were proper, did not contribute to the Plaintiffs problems, and did not involve any negligence. As noted above, the jury returned a verdict in favor of the Plaintiff-Appellee in the amount of $230,053.30. The Defendant-Appellant has raised several claims of error on appeal.

In this case we are requested to reverse the lower court’s denials of motions for judgment notwithstanding the verdict, and/or for a new trial. In such an appeal, we must be mindful of the standard of review applicable with regard to the lower court’s denial of such motions. In reviewing the denial of a motion for judgment n.o.v., the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, viewing all of the evidence in the light most favorable to the verdict-winner, including all reasonable inferences arising from the evidence, and any conflicts in evidence must be resolved in favor of the verdict winner. See McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982). Where the denial of a motion for new trial is challenged on appeal, we must examine the evidence and determine whether or not the trial court manifestly or capriciously abused its discretion or committed an error of law. Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405 (1985). With these concepts in mind, we shall examine the Appellant’s contentions of error.

The Appellant first asserts that the trial judge erred in several regards in his charge to the jury. Inter alia, the Appellant claims that the trial judge improperly advised the jurors regarding the so-called “two schools of thought doctrine”. This doctrine has been discussed in Furey v. Thomas Jefferson University Hospital, 325 Pa.Super. 212, 472 A.2d 1083 (1984) and Remley v. Plummer, 79 Pa.Super. 117 (1922), cases which were cited in the briefs filed by both parties to the instant appeal. The two schools of thought doctrine basically provides that it is improper for a jury to be assigned to decide which of two schools of thought as to proper surgical or other medical procedure should have been followed in any particular case, when both schools have their respective and respected advocates and followers in the medical profession. In essence, a lay jury is not to be put in a position of choosing one respected body of medical opinion over another, when each has a reasonable following among the members of the medical community. Under this doctrine, a physician will not be held liable merely for exercising his judgment in applying a course of treatment supported by a reputable and respected body of medical experts, even if another body of expert medical opinion would favor a different course of treatment.

The two schools of thought doctrine is applicable in the instant case with regard to the question presented to the jury of whether or not it was proper for Dr. Trotman to treat Mr. Trent’s problem conservatively with medication for five days following the initial surgery, before the subsequent repair surgery was undertaken. The Plaintiff’s expert testified that immediate surgery was in order, according to the mainstream of respected medical opinion. The Defendant’s expert testified that there were two schools of thought on the matter, and that the majority school of thought was for conservative management of the problem, rather than surgery, at the time when the Plaintiff’s problem arose. The trial judge charged the jury as follows, concerning the two schools of thought doctrine:

Now, ladies and gentlemen, a physician has the right to practice his profession in accordance with the school of thought which differs in its concepts and procedures from another school of thought. Even though the school that he follows is a minority one, he will not be deemed to be negligent or practicing improperly as long as that school of thought is reputable and respected by reasonable medical experts.

Although a less abbreviated explanation of the doctrine would have been more desirable, we find that this instruction properly summarized the applicable rule for the jury.

The Appellant, however, contends that the trial judge made remarks and comments on the evidence which gave the jury the impression that a choice must be made between the correct medical approach that should have been utilized. We cannot agree with such an assertion. Further, we cannot ignore the following additional comments of the trial judge to the jury, during its charge, when it reviewed the testimony of the Defendant’s expert: “And he testified that there are two schools of thought, one conservative, which does not believe in immediate surgery, but treatment by antibiotics, observation, and things of that nature. And there was another, I guess you would call it a more radical view, that believed in surgery, in immediate surgery.” This additional comment further enlightened the jury regarding the existence of two reasonable and respected bodies of medical opinion concerning the proper treatment approach, and reminded the jury of the Defendant’s expert testimony concerning the alternative approaches taken by physicians in the medical circumstances presented in this case.

In his arguments regarding the trial court’s charge concerning the two schools of thought doctrine, the Appellant further maintains that the trial judge ignored pertinent testimony offered by the defense, while highlighting the Plaintiff’s expert testimony. Reading the charge as a whole, as is required, [See Reading Motor Sales, Inc. v. United States Fidelity and Guaranty Company, 439 Pa. 149, 266 A.2d 687 (1970)], we find no merit in such a claim. Moreover, as will be more fully discussed later in this Opinion, it must be recognized that the trial court stated on several occasions, during the charge, that the jurors were to rely upon their own recollections of the testimony and other evidence, rather than upon the trial judge’s recollection and description of such testimony and evidence in his charge. In summary, we can discern no error by the lower court in its charge with regard to the two schools of thought doctrine, and the proper approach to be taken by the jury in its consideration of the fact that testimony was presented concerning two alternative treatment strategies which may have been followed by the Defendant in this case.

Next, the Appellant continues to attack the trial judge’s charge by claiming that error occurred when the judge failed to properly advise the jurors that they could consider the fact that the Defendant relied upon the recommendations of a specialist with respect to the areas of treatment which were outside of the Defendant’s specialty. The record shows that Dr. Trotman testified that he readmitted the Plaintiff a day after the polypectomy, and consulted with another surgeon, Dr. John Thomas, concerning the recommended treatment of the suspected perforated colon. The evidence indicated that Dr. Trotman had never prior to that time treated or had any experience with a perforation of the colon from the type of procedure which had been followed in Mr. Trent’s surgery. Dr. Thomas recommended conservative treatment and Dr. Trotman relied upon that recommendation for the next five days.

In his charge, the trial judge stated to the jury that there had been testimony from Dr. Trotman that he had consulted with a rectal/colon surgeon when he saw that the polypecto-my was not going as planned. After the court’s initial charge, there was a discussion in chambers with counsel concerning this subject, and thereafter the court further advised the jury:

Now, it has been testified to that Dr. Trotman called Dr. Thomas in for consultation, which is proper, and I don’t know how you will look at the advice that — or counsel was given by Dr. Thomas to Dr. Trotman, but by taking Dr. Thomas’ advice, irrespective of how you view that advice, if you find that Dr. Trotman was negligent, whether he was relying on it or not relying on it, the fact that he took certain advice would not excuse his negligence. Is that clear? Or, stated another way, if you find that Dr. Thomas, in recommending, during the course of this consultation, conservative treatment, and that conservative treatment, based upon all the evidence, was improper, Dr. Trotman is not excused because he took the advice of Dr. Thomas in giving conservative treatment.

The Defendant-Appellant maintains that the jury may have been left with the impression, based upon this part of the charge, that the fact that Dr. Trotman called upon Dr. Thomas for consultation was irrelevant to the determination of Dr. Trotman’s negligence. The Appellant further contends that it is the law of Pennsylvania that consultation between a general practitioner and a specialist may be evidence of due care on the part of the general practitioner, but it does not conclusively establish due care. In support of his position on this point, the Appellant cites Jones v. Montefiore Hospital, 275 Pa.Super. 422, 418 A.2d 1361 (1980) , reversed on other grounds, 494 Pa. 410, 431 A.2d 920 (1981) .

We deem it unnecessary to comment on the Appellant’s assertions regarding the law in our Commonwealth concerning the effect of a consultation between a general practitioner and a specialist. Rather, it will suffice that we note our disagreement with the Appellant’s assertion that the trial judge erred in failing to charge the jurors that they could consider the fact that the Defendant relied upon the recommendations of Dr. Thomas with respect to the areas of treatment outside of the Appellant’s specialty. We believe that the charge correctly informed the jurors that the proper issue to be resolved in the case was whether or not Dr. Trotman had departed from reasonable medical standards in the care he furnished to Mr. Trent in the circumstances presented. The charge did not preclude the jury from considering the fact that Dr. Trotman obviously exercised some care in seeking a consultation with an expert when problems become apparent. However, the lower court correctly instructed that whether or not such expert advice was taken would not provide any legal excuse for negligence by the Defendant. Accordingly, we reject the Appellant’s assertion that the lower court erred in that regard in its charge.

Finally, with respect to the lower court’s charge, the Appellant maintains generally that the trial court committed various other reversible errors in its instructions to the jury. More specifically, it is urged that the trial judge misled and unfairly prejudiced the minds of the jurors in calling their attention to alleged discrepancies in testimony, and in commenting upon other testimony and evidence. Further, the Defendant claims that the trial judge improperly charged the jury on damages, on the life expectancy of the Plaintiff, on the issue of an increased risk of harm, and on other matters.

In response to such assertions, we have carefully reviewed the charge in its entirety. In doing so, we find particularly noteworthy the trial judge’s repeated instruction to the jurors to consider their own recollections of the testimony and evidence presented, rather than the summary of such matters by the judge himself. In general, our review leaves us with the firm conclusion that the charge of the court was not prejudicial to the defense and did not provide a basis, on any of the grounds asserted by the Appellant, for the grant of a judgment n.o.v., and/or a new trial.

Next, we address a contention by the Appellant that the trial court erred in allowing an expert for the Plaintiff to testify beyond the scope of answers to interrogatories. The record shows that during the pretrial stage of the case, the Plaintiff served interrogatories seeking information concerning the expert testimony which might be expected in the Plaintiff’s case at trial. The Plaintiff responded to such interrogatories well over two years prior to the trial, identifying a Dr. Rosenberg as his expert, and listing various factual areas of testimony which could be expected from Dr. Rosenberg. Further, the answers listed ten opinions that this expert could be expected to render in his testimony. The Defendant did not file any supplemental interrogatories, seek a more detailed response, and never sought to take the deposition of Dr. Rosenberg prior to trial. However, during the course of the trial, counsel for the Defendant objected to the testimony of Dr. Rosenberg, claiming that the answers to interrogatories did not mention that the expert would testify regarding “causation”.

We find the Defendant’s position regarding this issue to be devoid of arguable merit. The Plaintiff’s answers to interrogatories indicated that Dr. Rosenberg’s testimony would include his opinions, inter alia, that: adequate support staff was not present at the surgery; there was insufficient equipment in the event of malfunction; inadequate pre-operative preparation took place; there were improper measurements of the polyps; the equipment used was questionable; excessive current was used; the Defendant failed to determine the location of a second polyp; that Plaintiff should have been admitted to the hospital upon his first complaints of distress shortly after the operation; that Plaintiff should have been admitted to the hospital or examined upon his second complaint of post-operative distress; and that Plaintiff should have had abdominal surgery performed immediately upon the diagnosis of particular problems in his abdomen.

Rule 4003.5 of the Pennsylvania Rules of Civil Procedure is pertinent. It pertains to the discovery of information regarding experts and expert testimony during the pre-trial stage of a civil case such as the instant one. In subsection (c) it provides that to the extent that the facts known or opinions held by an expert have been developed in discovery proceedings, the testimony of the expert at trial “... may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory____” (emphasis added) While the word “causation” was not specifically mentioned in the interrogatories completed by the Plaintiff regarding Dr. Rosenberg’s expected testimony, it is certainly clear that his testimony concerning causation, challenged by the Appellant, was within the “fair scope” of the answers to interrogatories provided by the Plaintiff prior to trial.

The relevant inquiry in any case involving the interpretation of Rule 4003.5, such as this, is whether there has been surprise or prejudice to the party which is opposing the proffered testimony of the expert, based upon any alleged deviation between the matters disclosed during discovery, and the testimony of such expert at trial. See Augustine v. Delgado, 332 Pa.Super. 194, 481 A.2d 319 (1984). Based upon the disclosures by the Plaintiff in response to the pre-trial interrogatories concerning his expected expert testimony, we cannot hold that the Defendant could possibly have been surprised that Dr. Rosenberg expressed an opinion concerning causation at trial. Moreover, we also cannot determine that the Appellant was prejudiced when we compare the substance of Dr. Rosenberg’s testimony at trial with the information provided to the Appellant prior to trial in the Appellee’s answers to interrogatories concerning such expected testimony. See and compare the situation in Starr v. Allegheny General Hospital, 305 Pa.Super. 215, 451 A.2d 499 (1982), where a similar issue was presented, under a local pretrial discovery rule analagous to Pa.R.C.P. 4003.5. Accordingly, we must reject the Appellant’s contention that the lower court incorrectly denied him relief in the nature of judgment n.o.v., or a new trial because of the testimony on causation by Dr. Rosenberg at trial.

The Appellant next argues that the trial court erred in allowing Plaintiff’s expert to testify that Defendant’s negligence increased the risk of harm, and incorrectly charged the jury on the doctrine of increased risk of harm, as the Plaintiff’s Complaint allegedly did not adequately plead such a theory of recovery. The record shows that Dr. Rosenberg testified that Dr. Trotman’s five day delay in undertaking the surgery to repair the perforation of the colon increased the risk of harm to the Plaintiff. In support of this argument, the Appellant cites DeJesus v. Liberty Mutual Insurance Company, 423 Pa. 198, 223 A.2d 849 (1966) and other cases.

The lower court found no adequate grounds to support this contention by the Defendant, and we must agree. In his Complaint, the Plaintiff recited the history of his care by the Defendant, and stated that after the original injury, he underwent surgery in connection with the perforation of his sigmoid colon, and further was subjected to a colostomy. He averred that he suffered injuries as a result of the Defendant’s negligence, and delineated numerous specific acts of negligence including: “improper post-operative care and treatment” and “failure to attend and treat plaintiff.” While we certainly recognize the necessity that there not be a material deviation between the allegata and the subsequent proof at trial, we believe that the quoted sections of the Complaint fairly encompass the increased risk of harm theory presented at trial in support of the Plaintiffs case. Moreover, as noted earlier in this Opinion, the answers to interrogatories submitted by the Plaintiff prior to trial provided notice to the Defendant that Dr. Rosenberg could be expected to express the opinion that the Defendant was negligent in not providing immediate care to the Plaintiff upon his first and second complaints of post-operative difficulties, and also that the Defendant was negligent in not performing surgery immediately upon the diagnosis of free air in the Plaintiffs abdomen. In view of our conclusion that there was sufficient detail alleged in the Complaint to notify the Defendant of the allegations of post-operative negligence, and also in view of the responses to interrogatories which were submitted over two years prior to the trial in this case, we find no basis for granting relief to the Defendant on his claim that the lower court erred in allowing the Plaintiffs expert to testify that Defendant’s negligence increased the risk of harm, or in allowing the jury to consider a theory of recovery for the Plaintiff based thereon.

We next turn to an argument by the Appellant that the trial court allegedly erred in allowing the Plaintiff’s attorney to cross-examine a defense expert concerning a textbook published in 1982, when the standard of care relevant to this case was that which existed at the time of the Defendant’s treatment of the Plaintiff in 1978. The Defendant contends that the use of the 1982 textbook was a clear attempt by the Plaintiff’s attorney to get a text into evidence which would have been otherwise excluded as irrelevant and inadmissible. The Defendant’s argument suggests that the Plaintiff was trying to inject a different standard of care into the jurors’ considerations in the case, and maintains that the court therefore committed clear prejudicial error in failing to preclude such evidence.

In raising this argument, the Defendant has significantly mischaracterized the circumstances under which the textbook in question was used at trial in this case. The record shows that the Defendant’s expert, Dr. Marx, was questioned by Plaintiff’s counsel on the proper preparation of a patient for a colonoscopic polypectomy. Dr. Marx admitted that he had himself written that “high colonic irrigation with physiological saline administered three hours prior to the examination completes the preparation.” However, he thereafter testified that the recommended preparation steps had changed since then. During the continuing cross-examination of Dr. Marx, the Plaintiff’s counsel referred him to a 1982 text by one Dr. Shinya, who Dr. Marx admitted was “the father” of the colonoscope polypectomy procedure. Counsel for Plaintiff clearly used the text of Dr. Shinya in an attempt to show that the recommended standard preparation procedure had not changed. Such questioning was unquestionably directed to impeaching the testimony of Dr. Marx on the issue of whether or not the recommended preparation steps had changed since 1973, as he had testified. No attempt by Plaintiff’s counsel to inject a 1982 rather than 1978 standard of care into the case is apparent. Accordingly, we find no error by the lower court in allowing the attorney for the Plaintiff to use the 1982 textbook for the clear and limited purposes of impeachment during the trial.

The Appellant next urges that the lower court committed reversible error in allowing the Plaintiff’s expert, Dr. Rosenberg, to answer hypothetical questions. The Appellant suggests that the hypothetical questions did not fairly incorporate all material facts necessary in order to allow the witness to render an opinion, and further, it is asserted that Dr. Rosenberg assumed additional facts in answering such questions. In this regard, the Defendant specifically refers to Dr. Rosenberg’s testimony that the perforation of the Plaintiff’s colon was caused by heating which occurred during the removal of the polyp.

It is well-established that all information contained in any hypothetical question to a witness must be based upon evidence of record in the case. Ranieli v. Mutual Life Insurance Company of America, 271 Pa.Super. 261, 413 A.2d 396 (1979). In the instant case, Dr. Rosenberg based the testimony in question upon hospital records including the pathology report and the operative report, which were a part of the record in the case. The record also shows that defense counsel was given a significant opportunity to cross-examine the Plaintiff’s expert on the basis for the opinions which were rendered. In particular, he was able to show through such cross-examination that one aspect of Dr. Rosenberg’s testimony was apparently based upon some record which the doctor could not locate or identify. The doctor was only able to testify that he thought he had read about such matters at some time prior to trial. Certainly, such cross-examination was quite effective and beneficial to the defense in mitigating the impact of Dr. Rosenberg’s opinion on that point. In light of all of the factors present, we cannot determine that the lower court committed reversible error in allowing the witness to answer the hypothetical questions posed to him, nor can we conclude that the answers of the expert were based on any matters outside of the record in such a way that created any realistic prejudice to the Defendant. The skillful cross-examination by defense counsel in this context clearly mitigated against any such prejudice. Accordingly, we must reject this claim of error by the Appellant.

The Appellant also alleges that the verdict was so excessive as to require a new trial. The grant or refusal of a new trial in response to the argument that the amount of the verdict was excessive is within the discretion of the trial court, whose exercise thereof is not subject to reversal except when there is a clear abuse of that discretion. Bascelli v. Randy, Inc., 339 Pa.Super. 254, 488 A.2d 1110 (1985). While a new trial may be granted because of the excessiveness of a verdict, we may not lightly disregard the jury’s award, unless it appears that the amount of the award resulted from caprice, prejudice, partiality, corruption, or some other improper influence. Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985). It has been stated that a new trial can be awarded on the basis of an excessive verdict only when the verdict is one which shocks the conscience of the court. Hessler v. Suburban Propane Natural Gas Company of Pennsylvania, 402 Pa. 128, 166 A.2d 880 (1961).

In the instant case, it was shown that the Plaintiffs medical expenses totaled over $30,000.00. Moreover, the Plaintiff testified to having suffered excruciating pain, and was disabled for several months. In light of these factors and other evidence relating to damages which could have been considered by the jury, the size of the verdict is not shocking, and does not reflect any caprice, prejudice, or other impropriety by the jurors. Plainly, the size of the verdict in this case presents no basis for reversal.

Finally, the Appellant contends that the verdict was against the weight of the evidence. This claim finds no support in the record. The Plaintiff presented abundant evidence to establish that the treatment by Dr. Trotman was a departure from accepted and reasonable medical standards. The jury was free to accept such evidence, and reject the contrary evidence offered by the defense. Thus, the lower court did not err in refusing to grant judgment n.o.v. or a new trial based upon Defendant’s argument that there was insufficient evidence to support the jury’s verdict in the case, and we reject the Appellant’s final claim of error.

The order of the lower court is hereby affirmed.


author: CERCONE, Judge:

text:
    508 A.2d 589
    COMMONWEALTH of Pennsylvania v. Warren S. EICHELBERGER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1986.
    Filed April 28, 1986.

      Philip S. Cosentino, Chambersburg, for appellant.
    David W. Rahauser, Chambersburg, for Commonwealth, appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

On August 5, 1983, Troopers Weachter, Wilson, Bopp and Marchowski obtained a warrant authorizing a search of appellant’s residence. In the affidavit supporting the search warrant, no mention was made of appellant other than reference to the “Warren Eichelberger residence.” The troopers staked out the residence for fifteen to twenty minutes and when an automobile arrived at the residence, the officers came onto the premises and requested the identity of the occupant of the house. Appellant identified himself and Trooper Weachter read the search warrant to him, and then escorted him inside.

Either simultaneous with, or prior to the reading of the warrant, Troopers Wilson and Bopp entered the home for the ostensible purposes of determining who was inside, to prevent the destruction of evidence, and for safety reasons. However, these troopers failed to observe the “knock and announce” rule as required by Pa.R.Crim.P. 2007(a), by entering the residence without giving or making reasonable effort to give notice of their identity, authority and purpose.

Appellant, upon entering the residence, sat down on the first chair and took off his boots. Trooper Weachter then asked him if he had any weapons on his person but did not receive any response. Weachter then told appellant to empty his pockets. Appellant took his wallet from his right rear pants pocket and a plastic bottle containing ten green pills and a small baggy containing white powder from his right front pants pocket and put the items on the kitchen table. Trooper Weachter, standing behind the appellant then inserted his hands into the appellant’s rear pants pockets, found nothing, and then reached into both of the front pockets and removed two more baggies containing a white powdery substance. A search of the house was conducted and approximately fifty-five minutes later, it yielded about $4,300 and some suspected marijuana seeds.

Appellant was arrested and charged with violating the Controlled Substance Drug, Device, and Cosmetic Act, 35 P.S. § 780-101 et seq. On January 26, 1984, Judge Eppinger granted the suppression of all evidence seized from appellant’s residence due to the violation of the “knock and announce” rule, but refused to suppress the evidence seized from his person. A non-jury trial was held on March 6, 1984 before Judge Keller, who found appellant guilty of possession and possession with intent to deliver. Appellant’s post-trial motions were denied and sentence was imposed on March 6, 1985.

In this appeal, appellant contends that the lower court erroneously refused to suppress the evidence seized from his person, as the search was unreasonable and in violation of the fourth amendment. We conclude that all evidence seized from appellant’s person should have been suppressed and accordingly, we reverse and remand for a new trial.

Appellant raises three arguments to support his contention. First, that the search of appellant’s pockets went beyond a limited, “Terry” type weapons search, thus constituting an unreasonable search. Second, that the troopers exceeded the scope of their search warrant which authorized only the search of the residence and not the search of appellant’s person; and third, that in light of the violation of the “knock and announce” rule, all evidence seized as a result of the search should be suppressed as “fruit of the poisonous tree.” Since we have decided to reverse based on the first two arguments for the reasons set forth below, we need not discuss the merits of the “knock and announce” rule argument.

I.

The Commonwealth asserts that the troopers appropriately searched appellant’s pockets for security reasons. It is well settled that a law enforcement officer, for his own protection and safety, may conduct a pat-down to find weapons, only if he reasonably believes or suspects that weapons are in the possession of the person he has detained. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In order to conduct a Terry search, the Commonwealth must be able to articulate specific facts from which it could be reasonably inferred that appellant is armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Commonwealth v. Luddy, 281 Pa.Superior Ct. 541, 422 A.2d 601 (1980), cert. denied 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981).

The lower court found the required reasonable suspicion based on the following findings of fact:

1. the fact that the officer testified the defendant [appellant] acted like he was angry and upset.
2. the defendant’s totally inexplicable conduct in sitting down and removing his boots as soon as he entered his home and then walking toward the kitchen table.
3. the defendant’s failure to respond to the trooper’s inquiry whether he had any knives, guns or other weapons on his person.
4. the defendant’s compliance with the trooper’s direction that he empty his pockets by the placement of his wallet, a plastic bottle containing 10 pills, and a baggy containing white powder on the kitchen table.
5. the trooper’s testimony that he reached into the defendant’s pockets “for my own personal protection and because we had a search warrant” (N.T. 9), and “... he could have any type of weapon, razor blade, anything.” (N.T. 20).

Lower court opinion at 15.

We are not convinced that the Commonwealth adequately met its burden of showing reasonable suspicion for three reasons. First, Trooper Weachter testified that he had not observed any lumps or anything suspicious on appellant’s clothing that would make him believe appellant was carrying a weapon, nor could he point to anything specific which would justify such a belief. Furthermore, appellant was not asked if he had any weapons until after the search warrant was read to him and not until he was being escorted to the house. This delay indicates that the troopers were not fearful for their own safety. See Commonwealth v. Gillis, 217 Pa.Superior Ct. 159, 269 A.2d 135 (1970). Lastly, we find it unlikely that a police officer with a reasonable suspicion that his detainee was armed would allow the potentially dangerous person to empty his own pockets.

Assuming arguendo, that a reasonable suspicion was aroused, the trooper would have been authorized to conduct a carefully limited search of the outer clothing of appellant in an attempt to discover weapons which may be used against him. Terry v. Ohio, supra 392 U.S. at 30, 88 S.Ct. at 1884. Instead, the trooper ordered appellant to empty his pockets, after which, the trooper proceeded to place his own hands in appellant’s pockets. “The Terry case created an exception to the requirement of probable cause, an exception whose narrow scope this Court has been careful to maintain.” (emphasis supplied). Ybarra v. Illinois, supra 444 U.S. at 93-94, 100 S.Ct. at 343-45. The court below has failed to make the important distinction between a limited frisk for weapons and an actual search of one’s person. Terry v. Ohio, cannot properly be so extended in light of the Supreme Court’s own words that “nothing in Terry can be understood to allow a generalized cursory search for weapons or, indeed, any search whatever for anything but weapons.” Ybarra v. Illinois, supra at 93-94, 100 S.Ct. at 343.

II.

The Commonwealth also asserts that the troopers acted within the scope of the search warrant when they searched appellant’s pockets. It is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched. Article I, Section 8, Pennsylvania Constitution; Pa.R.Crim.P. 2005(b), (c). In addition, the search may not go beyond the scope of the warrant. Commonwealth v. Searles, 450 Pa. 384, 302 A.2d 335 (1973). The search warrant presently in question authorized the search of the appellant’s home and not appellant’s person. The section of the warrant which requires a “specific description of the premises and/or persons to be searched” includes only a description of the home. Nor was the appellant mentioned in the affidavit of probable cause supporting the search warrant other than by reference to the “Warren Eichelber-ger residence.”

In contrast to what the suppression court opined, the mere mention of appellant’s name as owner of the premises to be searched, does not entitle the police to search appellant’s person as incident to the search of the premises. As stated in Commonwealth v. Villego, 24 D. & C.3d 736, 739 (1982), “... one cannot extend the scope of a search pursuant to a warrant to include persons who merely happen to be present. This is true even though the person may reside on the premises." (emphasis supplied).

Appellant claims and we agree, that Commonwealth v. Luddy, 281 Pa.Superior Ct. 541, 422 A.2d 601 (1980), cert. denied 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981) is directly on point to the present situation. In Luddy, as in this case, the defendant was named in a search warrant as a resident of the property to be searched. The warrant, however, as in this case, “did not authorize a search of his person.” Luddy, supra, 281 Pa.Superior Ct. at 551, 422 A.2d at 606. When the search warrant was executed, Edmund Luddy was outside the residence (as was the appellant in the present case), working in a shed near the house to be searched when the police arrived with the search warrant. One of the officers approached Luddy and conducted a pat-down search during which he felt in the inside shirt pocket an object that he believed to be a small knife. When examined, the object proved to be a three inch syringe with its cover in place. The officer arrested Luddy for possession of a syringe and conducted a full search of his person which yielded controlled substances. The Superi- or Court ruled that the evidence should have been suppressed, because

It is settled that a warrant authorizing the search of a building does not authorize the search of either the persons ... or the property ... of those who merely happen to be present when the warrant is executed, (citations omitted)

Commonwealth v. Luddy, supra, 281 Pa.Superior Ct. at 551-552, 422 A.2d at 606-607.

The Commonwealth attempts to distinguish the cases by maintaining that Luddy only affords protection to property and persons who merely happen to be present when the warrant is executed and does not protect those who reside on the premises, as does appellant. However, the Commonwealth and the suppression court have overlooked the fact that Luddy was also a resident of the premises to be searched and was so named in the warrant, and therefore, there is no distinction. In light of the holdings in Luddy, the similar factual scenario, and the lack of meaningful distinctions between that case and the case presently before the court, we are constrained to find that it is controlling and we are bound by its determinations.

The examination of additional cases further illuminates this area of the law. A warrant to search a person’s premises or effects includes the authority to search things under the control of that person. Commonwealth v. Homsher, 292 Pa.Superior Ct. 449, 347 A.2d 760 (1981). For example, in Commonwealth v. Wheatley, 266 Pa.Superior Ct. 1, 402 A.2d 1047 (1979), the court held that when the resident of the home to be searched removed his jacket and hung it over a chair, the jacket became part of the general contents of the room and could be searched. Similarly, in Commonwealth v. Sellers, 236 Pa.Superior Ct. 191, 344 A.2d 689 (1975), the court upheld the search of a handbag that was discovered as part of the general contents of the room which they were authorized to search.

The Commonwealth interprets this line of cases as justifying a search of a person’s pants pockets. With this we must disagree. Items found in a residence which are deemed to be under the control of the resident, must be clearly distinguished from items actually on the resident’s person. In Commonwealth v. Sellers, supra, while upholding the validity of the search of the handbag, the court unequivocally stressed that the police made no attempt to search the woman, but only searched the room and its contents. Therefore, the Commonwealth’s resolve that “a search of a handbag pursuant to a proper warrant is analogous to a request to remove items from the pocket of the individual ...” has no basis in logic or law.

As was observed by Mr. Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564, 587 (1971), once a line has been drawn which establishes the reasonableness of a police intrusion, “there is often not a great deal of difference between the situations closest to it on either side.” Yet the burden is upon the Commonwealth to prove that a search or seizure did not violate the fourth amendment. Commonwealth v. Cihylik, 337 Pa.Superior Ct. 221, 486 A.2d 987 (1985). The Commonwealth has not met its burden.

Judgment of sentence reversed and case remanded for a new trial. Jurisdiction relinquished.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Franklin County is reversed and case remanded for a new trial. Jurisdiction is relinquished.

      . The validity of the search warrant is not in question here.

      . It was later determined that the green capsules were Plasidyl, a Schedule IV drug and that the three baggies contained various quantities of cocaine.

      . Parts of the record indicate that appellant was not asked if he had any weapons until after he entered the house. The testimony is unclear as to the exact time this communication took place.

      . The Commonwealth has not attempted to justify the search as consensual, but it should be noted that mere acquiescence in the orders, suggestions, or requests of the police can never be equated with consent. Commonwealth v. Mancini, 592 Pa.Superior Ct. 592, 490 A.2d 1377 (1985); Commonwealth v. Burgos, 223 Pa.Superior Ct. 325, 299 A.2d 34 (1972).

      . This portion of the search warrant states in its entirety, "11068 Williamsport Pike, Antrin Township, Franklin County, Pennsylvania further described as one and one half story house with white aluminum siding and coral shutters and a 3 bay detached garage to the rear of the residence and all vehicles at residence."

      . The suppression court solely relied on Commonwealth v. Villego, supra as authority for the view that the mere mention of one’s name as the owner of the premises to be searched, subjects that owner to a search of his person incidental to the search of his premises. However, the search of defendant’s person in Villego was found to be justified only because the defendant was specifically named in the probable cause portion of the application and was described as being in possession of the drugs sought and as having sold some to the informant. Similar facts do not exist in the case sub judice.

      . The Luddy court also held that the pat-down was an unreasonable search because the Commonwealth could not point to any particular facts which could have justified a belief by the officer that Luddy was armed and dangerous, thus concluding, that the conditions of the narrow exception created by Terry were not satisfied. It should be noted that appellant in the instant case suffered a greater intrusion than did Luddy as Trooper Weachter searched the contents of appellant’s pockets instead of conducting a limited pat-down for weapons.

      . On the other hand, where the police find the belongings of a guest among the contents of a room, and have no information concerning that guest, the search of the guest’s personal property is constitutionally impermissible as the search warrant cannot be extended to include a search of things not belonging to or under the control of the resident of the premises. Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974).


author: WIEAND, Judge:

text:
    508 A.2d 594
    Arzula S. HIMMELRIGHT, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed April 28, 1986.

      Constance P. Brunt, Harrisburg, for appellant.
    Craig A. Stone, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WIEAND, Judge:

The sole issue in this appeal is whether the action brought by the appellant, Arzula S. Himmelright, to recover post-mortem work loss benefits on behalf of her deceased husband pursuant to Pennsylvania’s No-fault Motor Vehicle Insurance Act was barred by the statute of limitations contained in the No-fault Act. The trial court determined that Himmelright’s claim was time barred and entered summary judgment in favor of appellee, United States Fidelity & Guaranty Company (USF & G). We affirm.

The decedent, David H. Himmelright, was killed in an automobile accident on August 15, 1976. He had purchased no-fault insurance coverage from USF & G, which had issued a policy pursuant to the Act. His widow made a claim for survivor’s loss and funeral expenses, and these were paid by USF & G. However, the insurer denied liability when the widow made a subsequent demand for work loss benefits. The present action for work loss benefits was commenced on April 23, 1984 by filing a praecipe for writ of summons. This was followed by the filing of a complaint on June 8, 1984. USF & G then moved for summary judgment on the ground that Himmelright’s action was barred by the four year statute of limitations contained in the No-fault Act. After argument, the trial court granted the motion. This appeal followed.

“In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.” Craddock v. Gross, 350 Pa.Super. 575, 578, 504 A.2d 1300, 1301 (1986) quoting Lookenbill v. Garrett, 340 Pa.Super. 435, 439, 490 A.2d 857, 859 (1985); Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983). See: Pa.R.C.P. 1035(b).

An action to recover post-mortem work loss benefits, to be timely, must in any event be commenced within four years after the date of the fatal accident giving rise to the claim. See: 40 P.S. § 1009.106(c)(1). Appellant concedes that nearly eight years elapsed between the date of her husband’s death and the commencement of the present action for work loss benefits. She argues that her action was not time-barred, however, because the period of limitations had been tolled by a previously filed class action for work loss benefits. The class action, she contends, included the claim for work loss benefits resulting from her husband’s death. That action, Nye v. Erie Insurance Exchange, No. 5349-S-1979 (Dauphin Cty.), was instituted on November 15, 1979. It was brought against thirty-one insurance companies, including USF & G, on behalf of “all previously employed Pennsylvania residents who were insured by any of the defendants under No-Fault insurance coverage and who sustained a fatal injury within the past two years____” (emphasis added).

In Miller v. Federal Kemper Insurance Co., 352 Pa.Super. 581, 508 A.2d 1222 (1986), we held that the Nye action tolled the statute of limitations only for claims made on behalf of members of the class defined therein, i.e., those previously employed insureds who had died in auto accidents after November 15, 1977 (two years prior to the commencement of Nye in 1979).

The decedent in the instant case, having been fatally injured on August 15, 1976, does not fall within the class described in Nye. The present appellant, therefore, may not benefit from the tolling effect of the Nye action. Because the present action was commenced nearly eight years after the accident which caused David Himmelright’s death, it is barred by the No-fault Act’s statute of limitations. There being no genuine issue of material fact, the trial court properly entered summary judgment in favor of USF & G.

Judgment affirmed.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Dauphin County is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.