author: BECK, Judge:

text:
    670 A.2d 1172
    COMMONWEALTH of Pennsylvania v. Anthony TOLBERT, Appellant COMMONWEALTH of Pennsylvania v. John SMITH, Appellant
    Superior Court of Pennsylvania.
    Argued Aug. 3, 1995.
    Decided Dec. 20, 1995.
    Reargument Denied Feb. 29, 1996.

      Albert J. Flora, Jr., Assistant Public Defender, Wilkes-Barre, for appellants.
    Peter Paul Olszewski, Jr., District Attorney and Scott C. Gartley, Assistant District Attorney, Wilkes-Barre, for Com.

      Before BECK, SAYLOR and HESTER, JJ.
   BECK, Judge:

These appeals require us to address the complex issue of collateral estoppel in criminal retrials. Our review of the record leads us to affirm the judgment of sentence in appellant Smith’s case and affirm the collateral order in appellant Tolbert’s case. A thorough summary of the history of the cases, both factual and procedural, must precede our analysis.

Appellants Anthony Tolbert and John Smith were accused, along with another man named Anthony Russo, of beating to death the victim, Hector Maldonado. The Commonwealth’s theory of the case began with Maldonado’s failure to deliver to Russo some drugs that Russo paid Maldonado to secure. After the drug transaction went awry, Russo, Tolbert and Smith searched for Maldonado on the evening of February 28, 1991. The three men went to Maldonado’s residence, spoke to his girlfriend, and ultimately found Maldonado in the early morning hours of March 1, 1991 in the parking lot of Fay’s drug store in Wilkes-Barre.

Upon finding Maldonado, the men began to beat him severely. They dragged him into a car (Russo’s) and continued to beat him as they drove away. They later dumped his body on the roadside. Maldonado was discovered later by a man delivering newspapers and was taken to the hospital where he underwent brain surgery. He never regained consciousness and later died from blunt force trauma to the head and face.

Police sought out and questioned Tolbert and Smith about their involvement in the case; however, police never succeeded in locating Russo. Ultimately, Tolbert and Smith were charged with murder, kidnapping and conspiracy to commit murder and kidnapping. They were tried jointly and both testified. Essentially, they admitted to being present in the parking lot during Maldonado’s initial beating but insisted that it was only Russo who beat Maldonado. Both Tolbert and Smith claimed that they did not know Russo was looking for Maldonado; instead they thought they were accompanying Russo to the home of a girlfriend who needed assistance. Tolbert, and Smith further claimed that after Russo beat Maldonado in the parking lot, Russo drove them home. Russo, they insisted, left them at Tolbert’s house and drove off with Maldonado, who, despite his injuries, was alive and well when they last saw him.

The jury returned verdicts of not guilty for both men on the charges of first degree murder, second degree murder, voluntary manslaughter, kidnapping and conspiracy, but was deadlocked on the charge of third degree murder. After the verdicts, defense counsel filed a motion to dismiss the charge of third degree murder based on double jeopardy and collateral estoppel. The trial court denied the motion and the denial was appealed to this court. A panel of this court held that retrial for third degree murder was not barred by double jeopardy or collateral estoppel since the hung jury was the impetus for the retrial. The Pennsylvania Supreme court denied allocatur and the matters were remanded for retrial. Commonwealth v. Smith, 426 Pa.Super. 31, 626 A.2d 178, 181 (1993), allocatur denied, 537 Pa. 634, 642 A.2d 487 (1994).

Tolbert and Smith, who requested severance on retrial, then filed motions in limine seeking to preclude the admission of certain evidence on collateral estoppel grounds. The motions sought a pre-trial ruling prohibiting the Commonwealth from presenting:

evidence or theories that appellants intended to kill Maldonado;
evidence or theories that appellants removed Maldonado from the parking lot by force or threat of force; evidence or theories that appellants killed Maldonado in the course of committing a felony;
evidence or theories of a conspiratorial agreement between appellants to kill, seriously injure, or act maliciously toward Maldonado.
evidence or theories of any actions or statements of one appellant at the retrial of the other appellant.

In its order granting the motion in limine in part and denying it in part, the trial court ruled that the Commonwealth was barred from referring to, introducing or offering 1) evidence of any criminal conspiracy to kill Maldonado, 2) evidence that the murder was committed with a specific intent to kill and 3) evidence of kidnapping. The court further ruled that the Commonwealth would not be barred from presenting relevant evidence pertaining to the charge of third degree murder and that with respect to the manner of proof, all evidentiary objections made by the defense would be decided at trial.

Once these rulings were made, Tolbert’s and Smith’s cases took different routes. Smith was retried and found guilty of third degree murder. After Smith’s conviction, Tolbert filed a Motion for Collateral Order. In it he sought to prohibit the Commonwealth from utilizing a theory of accomplice liability to prove third degree murder since a previous acquittal of conspiracy had occurred. Tolbert requested that the trial court rule on the propriety of the Commonwealth’s intention to retry him for third degree murder using an accomplice theory and evidence of those charges (specifically conspiracy to commit homicide and kidnapping) of which he had been acquitted. The trial court ruled that the government could go forward with an accomplice theory of liability on retrial and was permitted to present evidence of conspiracy at Tolbert’s retrial. Tolbert appealed the trial court’s order to this court and the Commonwealth responded by filing a motion to quash the appeal as interlocutory. The full Superior Court denied the motion to quash and allowed the matter to go forward.

As a result of all this legal maneuvering, we now have before us both Smith’s and Tolbert’s cases. Appellants share two issues which we must resolve. First, we must decide whether the Commonwealth should be precluded from advancing a theory of accomplice liability on retrial when the first trial resulted, in an acquittal on the conspiracy charges: Second, we must decide what evidence the Commonwealth is entitled to use at appellants’ retrials in light of Pennsylvania law on collateral estoppel and double jeopardy. Since resolution of the second issue provides an answer to the first, we will begin -with the second issue.

The fifth amendment double jeopardy clause insures that no citizen shall be twice placed in jeopardy for the same offense. Among other things, the clause protects an individual who has successfully defended himself in a prior proceeding from having to once again face prosecution for the same crime. Collateral estoppel, or issue preclusion, is a concept that is embodied, in the guarantee against double jeopardy; it provides that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future court proceeding. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970).

The application of collateral estoppel to criminal law was first articulated by the United States Supreme Court in Ashe. There, several masked men robbed six other men who were engaged in a poker game. Wielding guns, the robbers took money and personal property from each of the six victims and fled. Ashe was- arrested and went to trial for the robbery of one of the victims. The government’s case against Ashe was weak; none of the robbery victims could positively identify him and there were discrepancies among the victims’ testimony as to the number of assailants. Ashe was acquitted. Six weeks later, the government again tried Ashe, this time for the robbery of another one of the six victims. The second trial included most of the same witnesses, although the second time around they were more confident in their recollection that Ashe resembled and sounded like one of the robbers. The second jury returned a verdict of guilty.

The Ashe court explained the manner in which collateral estoppel is to be applied:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.”

Id. at 444, 90 S.Ct. at 1194 (citations omitted). In reversing the judgment of sentence, the Ashe Court stated that the only rational issue to be decided by the first jury was whether Ashe had been one of the robbers. Because the jury decided that he had not, a second prosecution seeking resolution of that same issue was barred. Id. at 445, 90 S.Ct. at 1195.

In Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980), our supreme court addressed the issues raised in Ashe and applied the bar of collateral estoppel to the facts before it. Manfred Hude was accused of participating in twenty drug transactions with an individual named Barry Hagemus. At his first trial, Hude faced three possession and delivery counts involving Hagemus. The Commonwealth relied solely on the testimony of Hagemus to establish Hude’s guilt but Hude denied all involvement with Hagemus. The jury acquitted Hude of all three charges. Later, Hude again faced prosecution for some of the remaining counts of possession and delivery to Hagemus. This time he was convicted of some of the counts, though his judgments of sentence were reversed. After the second trial, the Commonwealth brought perjury charges against Hude for a statement he made when he testified at his first trial. Once again, the prosecution relied on the testimony of Hagemus to prove Hude’s guilt and Hude was found guilty of perjury. On appeal, the Pennsylvania Supreme Court applied Ashe and reversed the perjury conviction.

After carefully scrutinizing the record as required by Ashe, the Hude court noted that the first trial had been a battle of credibility, that is, Hagemus testified to Hude’s participation in the drug transactions and Hude denied all involvement.

The [first] jury was forced to either accept Hagemus’ testimony or acquit. They followed the latter course. Thus the critical, in fact the sole issue litigated at the first trial was the credibility of Hagemus, and the jury resolved that issue against the Commonwealth.

Hude, 492 Pa. at 616, 425 A.2d at 322. The court found that in view of the testimony presented, the first jury’s rejection of Hagemus’s testimony was the only rational explanation for its verdict. Labeling the perjury action as nothing more than a thinly veiled attempt to retry the issue of Hagemus’s credibility, the court held that the issue had already been litigated and collateral estoppel prevented its relitigation. Id.

Our supreme court again visited this issue in Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992). Stuart Cohen was charged with the murder of his ex-girlfriend’s fiance. At trial, the Commonwealth presented the testimony of three men who claimed they were hired by Cohen to kill the victim. Cohen denied that he hired the men to kill the victim; he testified that he paid them to “scare the victim,” or have him “shoved around” or “messed up.” The jury was charged on first and third degree murder as well as conspiracy.

During deliberations, the jurors asked the following question: “Does the conspiracy to frighten or beat become a conspiracy to commit murder with the death of the victim, even though the death was unintentional?” The trial judge responded that murder included an unlawful killing of a human being with malice, even where the intent of the defendant was merely to commit grievous bodily harm and not to take a human life. The jury then returned verdicts of not guilty of first degree murder, but guilty of third degree murder and conspiracy to commit murder.

Cohen’s convictions were later reversed based on pre-trial publicity and other issues. At the retrial for third degree murder and conspiracy, Cohen filed a motion in limine requesting that the Commonwealth be barred from introducing evidence of intent to kill as that issue had already been resolved in Cohen’s favor at the first trial. The trial court granted the motion and the Commonwealth appealed. Applying the rationale of Ashe and Hude, the Cohen court held that no evidence of intent to kill could be offered by the Commonwealth. In reviewing the entire record, the court noted that Cohen’s first jury clearly decided that the murder was not intentional because Cohen was acquitted of first degree murder; therefore, the Commonwealth was barred by collateral estoppel from advancing any theory or presenting any evidence which claimed otherwise. Id. at 563-65, 605 A.2d at 1218.

Pursuant to the relevant case law set out above, we begin our analysis by reviewing the elements of the crimes for which appellants were charged at the first trial. In all homicide cases, the prosecution must prove that the victim is dead and that the defendant is responsible for the death. However, the various types of homicide require differing burdens of proof. First degree murder is the killing of another with malice and a specific intent to kill. Second degree murder is the killing of another with malice during the commission of a felony. Third degree murder is a killing done with malice that is neither intentional nor committed in the course of a felony. Voluntary manslaughter is the intentional killing of another without malice but in a sudden heat of passion brought on by legal provocation.

Kidnapping is the forcible confinement of another in a place of isolation for a substantial period, with the intention to inflict bodily injury or terror. Conspiracy is an agreement with another to engage in conduct which constitutes a crime and the commission of an overt act pursuant to the conspiracy.

The recitation of these elements does not, in itself, permit us to conclude exactly what issues the jury fully resolved. Indeed, no amount of review will ever provide us with the actual decisions made by the jurors. An analysis of the elements, however, can lead us to make some broad preliminary conclusions regarding the jury’s actions.

It is clear that the the jury found Maldonado’s death was not the result of a specific intent to kill because appellants were found not guilty of first degree murder. The jury also decided that Maldonado’s death was not committed by appellants during the course of a felony because they were found not guilty of second degree murder. We can also conclude that the jury found the killing was not committed in the heat of passion brought on by legal provocation because appellants were found not guilty of voluntary manslaughter.

The jury must have decided there was no agreement among appellants to murder or kidnap Maldonado because they were acquitted of conspiracy. In addition, the jury determined that appellants did not forcibly confine Maldonado to the car with an intent to harm or terrorize him because they were found not guilty of kidnapping.

These broad conclusions aside, we are left with the more difficult task of assessing what particular evidence is admissible on retrial. While the acquittal of first degree murder prohibits the prosecution from advancing a theory of intent to kill Maldonado, just what evidence is precluded as a result of that prohibition is a more complex inquiry. Surely, a statement made by appellants such as “let’s go kill Maldonado” would be inadmissible because it bears directly on intent. But other evidence is not so easily excluded or admitted. While appellants asked only that “evidence of any intent to kill” be deemed inadmissible, and the trial court granted that request, we would be remiss if we did not provide a closer analysis.

We hold that only those facts which were necessarily determined in appellants’ favor in the first trial are precluded from relitigation, while those facts that may have been determined in appellants’ favor in the first trial are not precluded. Once it is clear that the jury has spoken with respect to a particular fact, the Commonwealth is no longer permitted to request that another jury consider the same.

We offer the following example to illustrate the necessity for a detailed analysis. Let us assume that Maldonado’s death was caused by several bullet wounds to the chest and the Commonwealth’s theory of the case was that each of the appellants shot at the victim. When deliberating in a first degree murder case, jurors are permitted to infer intent from a variety of circumstances. For instance, the use of a deadly weapon on a vital part of the body can be the basis for a finding of specific intent to kill. Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100, 1106 (1993). The question would then arise whether, since evidence of specific intent to kill was precluded under collateral estoppel, all evidence which could be used to establish specific intent, i.e., the manner of Maldonado’s death, was inadmissible.

A common-sense analysis of the purpose and intent of the doctrine of collateral estoppel leads us to respond in the negative to this question. Collateral estoppel simply does not apply to all evidence a jury may have utilized in reaching its decision. Indeed, the very standard by which evidence is to be excluded under the doctrine belies such a broad interpretation. The collateral estoppel inquiry is whether a rational jury grounded its verdict upon the very fact the defendant seeks to foreclose from consideration. See Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194. Where one or several other rational explanations for the jury’s actions exist, admission of evidence will not be excluded on collateral estoppel grounds.

It is important to remember that when conducting this analysis, we are not to apply the law to the facts in a hypertechnical manner, nor are we to perform “mental gymnastics” in an effort to avoid the bar of double jeopardy. Instead, we are to approach the issue with realism and rationality. See Ashe v. Swenson, supra; Commonwealth v. Hude, supra.

Returning to our hypothetical fact pattern, we would make the following analysis. Since a jury is merely permitted to infer specific intent on the basis of evidence that a defendant used a deadly weapon on a vital body part, but is not required to do so, there exists more than one rational explanation for the jury’s verdict, that is, there is more than one reasonable conclusion that could be reached from an assessment of the evidence. Therefore, it would be improper to preclude from the second jury’s consideration evidence of the manner of death merely because the first jury could have used it to find specific intent to kill.

We believe this standard reflects a reasonable and equitable manner in which to proceed in these types of cases. Further, its logic is supported by other case law on this issue. See e.g., United States v. Irvin, 787 F.2d 1506, 1515 (11th Cir.1986) (“[T]he fact sought to be foreclosed by the defendant must necessarily have been determined in his favor in the prior trial; it is not enough that the fact may have been determined in the former trial.”); United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir.1979) (defendant carries the burden of proving that “the fact-finder acquitted him because it resolved in his favor the very issue he seeks to foreclose from consideration . . .”)

The broad rulings sought by appellants leave open the potential for further litigation regarding their definition and intent. In an effort to resolve the collateral estoppel issue for appellants properly and completely, we have examined closely the transcript of Smith’s retrial. We have reviewed the evidence presented by each Commonwealth witness at Smith’s retrial for third degree murder to determine whether some or all of that evidence should have been excluded on collateral estoppel grounds.

Our decision is guided by the entirety of the record, including the transcripts of the first trial, the complaints and the statutory elements of all the crimes charged. Our rulings necessarily address the concerns raised by both appeals and provide guidelines for the admission of evidence at the Tolbert retrial. For clarity’s sake, we have conducted our analysis of the evidence piece by piece.

The first Commonwealth witness to testify against Smith at his retrial was Cynthia Johns, Maldonado’s girlfriend. Johns told the jury that she was home on the evening of the murder waiting for Maldonado to return her car. Appellants appeared at the house with Russo, demanding to know, where Maldonado was. She-told them she did not know and the three men left. They returned later and were inside her home when Maldonado called her. Johns wrote down the number of the telephone from which Maldonado was calling and Smith saw it. He recognized the number, grabbed the piece of paper and exclaimed that he knew the origin of the call. With that, all three men left Johns’s residence.

It appears from the record that Smith’s counsel objected -to most of Johns’s testimony, including her use of the pronoun “they.” Appellants sought to exclude all evidence which tendéd to establish that appellants were together on the evening of the murder and were looking for Maldonado. They assert that the conspiracy acquittal precludes admission of all evidence of shared intent or joint action.

Appellants’ request for the exclusion of evidence of the search for Maldonado cannot be sustained on the basis of collateral estoppel. The conspiracy acquittal does not necessarily lead to the conclusion that the jury rejected Johns’s testimony about the visits she received from appellants earlier in the evening. The éssential element of conspiracy is an agreement. Our legislature has chosen to punish the act 'of agreeing to commit a crime. That the jury concluded appellants did not agree among themselves to commit the crimes of murder or kidnapping, does not mean that it rejected all evidence of appellants’ joint actions that evening. It is entirely reasonable that the jury accepted Johns’s testimony regarding appellants’ search for Maldonado, yet rejected the notion that appellants agreed among themselves to kill, hurt or kidnap Maldonado.

Appellants use this same argument to support exclusion of the testimony of witnesses who claimed that more than one person was engaged in the beating of Maldonado in the parking lot. Alleged eyewitnesses Jeanette Wickkiser, Serena Smith, Thomas Yolinski, Milton Bastían, George Sheakoski and James Dougherty all testified to observing the victim being beaten by more than one person.

Exclusion of all evidence of joint action on the part of appellants is inappropriate. It is true, as appellants note, that a jury is entitled to infer an agreement between participants from the actions they take; however, a jury is not required to reach such a conclusion. Commonwealth v. Smith, 414 Pa.Super. 208, 606 A.2d 939 (1992) (agreement necessary to establish conspiracy may be inferred from relationship of the parties and circumstances of the crime) (emphasis supplied), allocatur denied, 533 Pa. 624, 620 A.2d 490 (1993). Clearly, not all crimes committed by more than one person support a conviction for conspiracy. It is improper to conclude that because the jury found appellants not guilty of conspiracy, all evidence of joint action must be excluded. Evidence of appellants’ search for Maldonado and the beating of Maldonado by two or more persons is not barred by collateral estoppel and is admissible at the retrial. See Commonwealth v. Breeland, 445 Pa.Super. 147, 664 A.2d 1355 (1995) (appellant’s acquittal on conspiracy charges in federal court does not preclude state court prosecution for underlying substantive crimes as jury may have concluded simply that there was no agreement between appellant and his cohorts).

Some of the eyewitnesses named above testified that they saw Maldonado being “dragged” into a car and taken from the parking lot. Appellants argue this evidence is inadmissible because the jury’s verdict of not guilty of kidnapping conclusively established that appellants played no part in removing Maldonado from the lot. Appellants insist the verdicts show that the jury accepted appellants’ claims that they were not involved in Maldonado’s beating or transport from the lot to the location at which he was found. We assume that this same argument forms the basis for appellants’ assertions that all evidence of forcible removal, subsequent beating in the car and confinement in the car is inadmissible.

We fail to see how the kidnapping acquittal necessarily leads to the conclusion that the jury could only have accepted appellants’ version of events. Considering the elements of the crime of kidnapping, several possible explanations exist for the jury’s verdict. It may be, as argued by appellants, that the jury believed appellants were merely innocent bystanders who had no hand at all in Maldonado’s brutal death. It might also be that the jury did not find that appellants were responsible for placing Maldonado in the car and, therefore, did not “forcibly confine” him. The jury also could have decided that at the time Maldonado was placed in the car, appellants did not intend to hurt him any further.

We conclude that the evidence appellants sought to foreclose regarding Maldonado’s removal, subsequent beating and confinement in the car falls into the category of facts that may have been resolved in appellants’ favor at the prior trial, not facts that necessarily were determined in their favor. See Irvin, supra. As such, their admission at the second trial is not barred by collateral estoppel.

In addition to the eyewitnesses, there were others who testified for the Commonwealth at Smith’s retrial. We briefly summarize their testimony for the sake of thoroughness.

Milton Bastían not only testified to witnessing the beating at the parking lot, he also had contact with appellant Smith after the murder. Bastían lived next door to Georgette Nealon, Smith’s ex-girlfriend and the mother of his children. Bastían claimed he saw Smith at Nealon’s house two days after the murder. Smith told Bastían that if he was asked about what he saw at the parking lot, Bastían was to explain that he was too drunk to remember. Bastían also said that when he used Nealon’s bathroom later that day, he saw a pair of sneakers there that were stained with blood.

Smith makes no specific argument supporting the exclusion of Bastian’s testimony and we can think of no reason that it should have been excluded. It cannot be argued that the prior acquittals have any impact on the admissibility of Bastian’s testimony.

Nealon also testified for the Commonwealth. She claimed that after Bastían told her what he observed in the parking lot, she asked Smith about it and he said that Maldonado “got what he deserved.” Nealon also testified that Smith admitted he was involved in Maldonado’s death “a little bit more than he should have been” and that “things happened so quickly that he never thought they would go as far as they did.” When Nealon asked Smith if he had any physical contact with Maldonado, he would not respond. Again, we see no reason why any of Nealon’s testimony would be rendered inadmissible in light of the not guilty verdicts at the first trial. None of Nealon’s testimony concerned an issue necessarily resolved in Smith’s favor at the first trial.

Smith’s girlfriend at the time of the murder, Erin Houseman, also testified for the Commonwealth at the second trial. She testified that she was with Smith, Tolbert, Tolbert’s girlfriend, Russo and Russo’s girlfriend on the night of the murder. At some point the men left and the women returned to Tolbert’s house. Houseman fell asleep and was awakened when she realized that Tolbert and Smith had returned. Smith was lying on. the floor next to her when Houseman noticed blood on his jeans. She asked him about it and he replied that it was Maldonado’s blood. The following day, Smith asked Houseman to bleach his jeans, which she did. Houseman also said that Smith told her they “got” Maldonado and dropped him off on the street, but thought he was okay.

Again, we see no reason to exclude any of Houseman’s testimony based .on collateral estoppel. While she testified to the joint actions of Tolbert and Smith, our previous discussion regarding the conspiracy acquittal and what it precluded fully address this issue.

The remaining witnesses presented by the Commonwealth at Smith’s retrial consisted mostly of law enforcement personnel, including those officers summoned to the crime scene, those officers who investigated the case and interviewed appellants, scientists who did blood and fiber analyses, and the coroner. Appellants properly make no collateral estoppel challenges to their testimony.

An overview of the entire record in this case leads us to conclude that the trial court carefully and thoroughly presided over these cases at the first trial, the second trial and all motions and arguments in between. The trial judge’s initial order denying use of all evidence of intent to kill and an agreement to kill or kidnap was appropriate. Further, his order declaring that all specific objections to evidence based on collateral estoppel would be dealt with at time of trial was a sensible one due to the complexity of these cases and the various ways in which proof could be presented.

Even the trial court’s later ruling in Tolbert’s case, which permitted the Commonwealth to offer evidence of conspiracy was essentially correct. Appellant Smith objected to all evidence of joint action, including use of the word “they.” As our preceding discussion indicates, evidence which could prove an element of conspiracy is not automatically excluded when an acquittal on that charge occurs in a prior proceeding. As Ashe and Cohen instruct, a definitive finding of issue preclusion must be made before any evidence can be deemed inadmissible. With respect to some of the evidence that could be utilized to establish conspiracy, no such finding can be made. Because the first jury could have acquitted appellants of conspiracy based on the lack of an agreement, those facts which only could be used to establish an agreement were foreclosed. Other facts which merely may have supported a conspiracy theory, such as joint action, were not foreclosed.

In sum, we find that no errors were made at Smith’s retrial based on the application of collateral estoppel. Further, we are confident that the trial court will continue to preside over this matter, at Tolbert’s retrial, in the same careful and learned manner exhibited thus far. While the application of collateral estoppel is difficult, the trial court has shown that it can be accomplished equitably in even the most complex cases.

With the collateral estoppel issue decided, resolution of appellants’ other common issue follows easily. Appellants insist that their acquittal on conspiracy precludes the Commonwealth from going forward on the third degree murder charge under a theory of accomplice liability. Appellants offer the following legal basis for their position:

All such theories, principal/accomplice or coconspirator, require as an element the existence of shared criminal intent____ [F]or the jury to have returned a verdict of not guilty of conspiracy to commit homicide, it had to conclude that there was a completé' absence of any shared criminal intent. The issue of shared criminal intent having been litigated in [appellants’] favor precluded the Commonwealth from relitigating the issue on an accomplice liability theory.... -

Brief of Appellant Smith at 25-26.

Appellants are simply wrong in asserting that an acquittal of conspiracy established that the jury concluded there was a “complete absence of shared criminal intent.” As our previous discussion makes clear, proof that a person engaged in criminal activity with another does not necessarily establish conspiracy. See Commonwealth v. Smith, supra, 414 Pa.Super. at 214-16, 606 A.2d at 943. Rejection of a conspiracy theory does not eliminate the possibility of concerted action in the perpetration of a crime. A conspirator agrees with another to commit a crime and makes an overt act in furtherance thereof. The inchoate crime of conspiracy is thus committed regardless of whether the substantive crime occurs. An accomplice knowingly or voluntarily cooperates with- or aids another in the commission of a crime. Commonwealth v. Manchas, 430 Pa.Super. 63, 633 A.2d 618, 627 (1993), allocatur denied, 539 Pa. 647, 651 A.2d 535 (1994). The aid rendered makes that person guilty of the substantive offense.

Despite the similarities between conspiratorial culpability and accomplice liability, a jury verdict concluding that an individual is not a conspirator does not require a concomitant conclusion that the same individual is not an accomplice.

Appellants’ argument on this issue fails; the Commonwealth is entitled to proceed on accomplice liability notwithstanding appellants’ previous acquittals of conspiracy.

Smith presents two additional issues on appeal. First, he argues that the evidence presented at his initial trial was insufficient to establish a conviction for third degree murder. After the first jury was deadlocked on the third degree murder count, Smith filed a motion for acquittal alleging insufficient evidence. That motion was denied by the trial court. On appeal to this court, Smith argued only that retrial was barred by collateral estoppel. This court disagreed, our supreme court refused to hear the case and the matter was remanded for trial. Now that he has been found guilty, appellant seeks appellate relief on the basis of insufficiency at the first trial. We cannot grant such relief here. Our task is to evaluate the procedure and substance of the second trial. Any complaints Smith had with respect to the first trial should have been raised in his appeal in that case.

Smith also claims that the trial court should not have permitted Thomas Volinski, a Commonwealth witness, to identify him in court. Smith filed a motion to suppress Volinski’s identification at the second trial because Volinski had misidentified him at the first trial.

We see no reason to engage in a lengthy analysis of this issue. Volinski testified that he saw three people beating Maldonado in the parking lot and observed Smith when Smith spoke with Bastían. Volinski’s testimony was merely cumulative of at least four other Commonwealth witnesses who said they saw inore than one person beating Maldonado. Further, Smith admitted that he approached Volinski and Bastían in the parking lot and engaged in conversation with Bastían. Even assuming Volinski’s identification was flawed, any error in admitting it could not have contributed to the verdict and was clearly harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Judgment of sentence in appellant Smith’s case affirmed. Collateral order of the trial court in appellant Tolbert’s case affirmed; matter remanded for retrial in a manner consistent with this opinion. Jurisdiction in both cases relinquished.

      . Russo remains a fugitive in this case.

      . The defense theory of the case was that Russo left appellants at Tolbert's house and went in search of Charles Wested, who was supposed to have assisted Maldonado in getting the drugs for Russo.

      . We note that the trial judge previously ruled that the Commonwealth was precluded from offering evidence of intent to kill, a criminal conspiracy or kidnapping. However, in response to Tolbert’s Motion for Collateral Order, the trial court ruled that the Commonwealth was not precluded from using evidence of the conspiracy at the retrial. These rulings appear contradictory; however, when viewed in light of the specific evidence sought to be excluded, they may well be appropriate.

      . Our opinion today does not address the propriety of Tolbert’s motion in the trial court or his appeal to this court.

      . Hude’s attorney asked him if he ever sold drugs and Hude replied that he had not.

      . Many of the offenses with which appellants were charged have alternate definitions or elements that do not apply to the facts of this case. For instance, it is possible to be guilty of voluntary manslaughter in the case of mistaken self-defense. It is also possible to be guilty of kidnapping where one removes the victim a substantial distance with the intent to hold the victim for ransom or reward. We recite here only those "versions" of the crimes which are applicable to the facts and on which the jury was charged.

      . We will assume that the jury was satisfied with the Commonwealth’s proof that Maldonado was, in fact, dead and his death resulted from a severe beating at the hands of another or others.

      . We note for the record the manner in which appellants have framed the issue for our review. Appellant Smith, despite the luxury of a complete transcript from the second trial, makes no specific objections to witnesses and/or testimony. Instead, Smith broadly claims that the Commonwealth "is collaterally estopped from using any evidence of those charges [of which Smith was acquitted] in the retrial,” and argues generally that at Smith’s retrial, the Commonwealth should have been collaterally estopped from "introducing evidence of any intent to kill, any agreement to commit a homicide, shared intent to kill or inflict serious bodily injury, the joint beating and forcible removal of Maldonado from Fay’s parking lot, any subsequent beating, the confinement of Maldonado in the Russo vehicle and the dumping of Maldonado’s body....” See Brief for Appellant Smith at 18-19. Tolbert's brief makes the same general objections to evidence he anticipates will be offered at his retrial. See Brief for Appellant Tolbert at 19-20.
      Not only are appellants’ presentations of the issue inappropriate under the Rules of Appellate Procedure, see Pa.R.App.P. 2119(c); they are at odds with the manner in which a collateral estoppel claim is to be analyzed. A collateral estoppel claim requires a thorough examination of the record(s), the pleadings, the evidence, the charge, and any other relevant matter. See Cohen, 529 Pa. at 559-61, 605 A.2d at 1216 (citing Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970)). While we recognize the importance of appellants' claims, we stress the requirement in this and every case that parties present a complete appellate brief, which includes objections to specific testimony and references to the record.

      . The use of the words fact and issue becomes tedious in these types of analyses. Collateral estoppel is issue preclusion, however, it is the facts underlying an issue that are sought to be foreclosed at retrial. ' Here, the first jury clearly decided the issue of intent. There are many pieces of evidence, or “facts,” the Commonwealth seeks to present to the second jury which may support intent and which the first jury may have accepted or rejected in reaching its decision on the issue of intent. Only those evidentiary "facts” which had to have been decided in appellants' favor when the first jury concluded there was no intent to kill are precluded from admission at the retrial.

      . Wickkiser is a prostitute who was in the vicinity of Fay's that night. Smith lived nearby and watched the incident from her window. Volinski and Bastían were in a car when they observed the men. They drove into the parking lot and Bastían spoke with Smith. Sheakoski and Dougherty are postal workers who had a view of the parking lot from the nearby post office.

      . Appellants also argue that evidence of the dumping of the body should be excluded. While their briefs do not elaborate on why this is so, we suspect that it is merely an extension of their argument that all joint action should be excluded. It may also be appellants are arguing that since the jury accepted their version of events as true, evidence of what occurred after they got out of Russo's car should not be admissible. We refuse to make the leap that appellants do in concluding that the jury fully accepted their testimony and rejected that of the Commonwealth witnesses.

      . Of course, the deadlocked vote on third degree murder leads us to conclude that at least one person believed otherwise.

      . Testimony from the eyewitnesses varied as to how Maldonado got into the car. Some said one person put Maldonado in the vehicle, others testified merely to Maldonado being dragged into the car by "the men.” Appellants claimed that Maldonado got into the car in order to take Russo to where the drugs were.

      . There was some testimony from appellants that Maldonado told Russo he would take him to Wested.

      . Bastion testified at the first trial but could not be located for Smith’s retrial. His prior testimony was read into the record.

      . Nealon did not testify at the first trial. Apparently, she and Smith resumed their relationship while he was in jail awaiting trial. Nealon attended the trial in support of Smith and celebrated the acquittals with Smith and his family. She also gave a statement to Smith’s counsel which helped Smith's defense. Shortly after the first trial, Smith and Nealon again parted ways. At the second trial, when she testified for the Commonwealth, she admitted that her statement to defense attorneys was fabricated in an effort to aid Smith.

      . Smith and Houseman broke up shortly after Smith’s arrest. Smith then began seeing Nealon again.

      . In Commonwealth v. Boykin, 276 Pa.Super. 56, 419 A.2d 92 (1980), reversed on other grounds, 501 Pa. 250, 460 A.2d 1101 (1983), this court addressed the very issue, stating:
      The jury in [the previous] trial could have reasonably found that despite the absence of an agreement, the appellant's actions aided his co-defendant's in their criminal activity. Therefore, the partial overlap in the statutory definitions of conspiracy and accomplice liability does not preclude a prosecution for the latter after an acquittal for the former.

        Id. at 60, 419 A.2d at 94.

      . When asked to point to the individual who he had seen in the parking lot and who had approached him and Bastían, Volinski motioned to one of the defense attorneys.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    671 A.2d 224
    Warren R. HERR, Appellant, v. William GRIER and Pennland Insurance Company.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1995.
    Filed Dec. 28, 1995.
    Reargument Denied March 5, 1996.

      Jeffrey D. Wright, Lancaster, for appellant.
    Martin S. Hohenadel, Lancaster, for appellees.
    Before KELLY, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the trial court which granted defendant’s motion for summary judgment. We affirm.

The trial court aptly summarized the facts giving rise to the instant appeal as follows:

[Plaintiff Warren R. Herr] was injured when the four-wheeled gasoline powered golf cart, in which he was a passenger, overturned. At the time of the accident, the golf cart was being operated on a golf course.
The driver of the golf cart, William Grier, was insured under an automobile insurance policy issued by defendant Pennland. Coincidentally, Herr also was insured under an automobile insurance policy with Pennland. Pennland refused coverage for Herr’s injuries under either policy of automobile insurance. In response, Herr filed an action for declaratory judgment, seeking a declaration that Pennland was obligated to pay the full amount of liability coverage provided under the Grier policy and uninsured or underinsured motorist (hereinafter “UM/UIM”) coverage provided under the Herr policy. Soon thereafter, Herr filed the pending motion for summary judgment and Pennland filed the cross-motion on the coverage issues....

Trial Court Opinion filed March 17, 1995 at 1. Herr filed a motion for summary judgment after which Pennland filed a cross-motion for summary judgment. The trial court denied Herr’s motion but granted summary judgment in favor of Pennland. This appeal followed. ,

Plaintiff Herr raises the following issues for our review:

A. Whether Pennland’s use of the ambiguous term “auto accident” requires a finding of coverage in favor of Mr. Herr.
B. Whether an exclusion which provides an insured with less UM/UIM coverage than required or allowed by statute is valid.

We shall address these issues in order.

Summary judgment may properly be granted by a lower court only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Goebert v. Ondek, 384 Pa.Super. 100, 104, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless a case is clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983).

When the Superior Court, as a reviewing court, is asked to interpret or review the meaning of a contract, “the intent of the parties is paramount, and our objective is to ascertain the parties’ intent as it is manifestly expressed in the agreement itself.” Warren v. Greenfield, 407 Pa.Super. 600, 607, 595 A.2d 1308, 1311 (1991) (emphasis in original). Where the policy language is clear, the contract will be applied as written. Nationwide Mutual Ins. Co. v. Cummings, 438 Pa.Super. 586, 593, 652 A.2d 1338, 1341 (1994), appeal denied, 540 Pa. 650, 659 A.2d 988 (1995). When a provision of a contract is ambiguous, it will be construed in favor of the insured. Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 281, 636 A.2d 649, 651 (1994), allocatur denied, 540 Pa. 575, 655 A.2d 508 (1994). As a general rule, a contract is ambiguous if it is reasonably susceptible of different construc tions and capable of being understood in more than one way. Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 386, 476 A.2d 1, 5 (1984). The court, "as a matter of law, determines the existence of an ambiguity, whereas the resolution of conflicting parol evidence, admitted to clarify the ambiguity, rests with the trier of fact. Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 200, 519 A.2d 385, 390 (1986).

Plaintiff Herr argues that the accident which caused his injuries was a covered risk under Grier’s insurance policy. According to plaintiff, Grier’s policy with Pennland provided coverage to Grier for liability incurred by him for any “auto accident.” In this regard, plaintiff argues .that the term “auto” is ambiguous. Plaintiff notes that in the same policy, Pennland'excludes coverage for a motorized vehicle having fewer than four wheels. Applying the principle of expressio unius est esclusio alterius to ascertain the intent of the parties, plaintiff avers that by excluding vehicles with fewer than four wheels, the parties intended coverage for all vehicles having four wheels or more including golf carts.

In the instant case, the insurance policy does not define the term “auto.” In the absence of technical terminology, we give the words us.ed in the agreement their plain and ordinary meaning. Warren v. Greenfield, 407 Pa.Super. 600, 607, 595 A.2d 1308, 1311—12 (1991). The dictionary defines “auto” as the shortened version of “automobile,” and defines the term “automobile” as a

4-wheeled automotive vehicle designed for passenger transportation on streets and roadways and commonly propelled by an internal-combustion engine using a volatile fuel (as gasoline) — called also car or esp. Brit, motorcar.

Webster’s Third New International Dictionary (1981) (emphasis added). In contrast, the dictionary defines the term golf cart as follows:

1: a small cart for wheeling a golf bag around a golf course
2: a motorized cart for carrying a golfer and his equipment over a golf course.

Webster’s New Collegiate Dictionary (1973). Keeping these definitions in mind, we find that Pennland’s use of the term “auto accident” in its policy is clear and unambiguous. Giving the term “auto accident” its plain and ordinary meaning, we conclude that the term cannot possibly be interpreted as providing coverage for an accident involving a golf cart not designed for or operated on public highways. See Warren v. Greenfield, 407 Pa.Super. at 607, 595 A.2d at 1312 (when the words of a contract are unequivocal, they speak for themselves, and a meaning other than that expressed cannot and will not be given to them). Because the policy’s coverage for “auto accidentfsj” does not include an accident involving golf carts, we find no error on the part of the trial court in granting summary judgment in favor of Pennland on this claim.

Plaintiff next argues that the uninsured/underinsured (UM/UIM) insurance policy provided by appellee Pennland is invalid. In this regard, plaintiff insists that Pennland’s policy provision excluding coverage for vehicles or equipment “[designed mainly for use off public roads while not on public roads” is void because it provides less coverage than that required by the Motor Vehicle Financial Responsibility Law (MVFRL). 75 Pa.C.S.A. § 1701 et seq. We disagree.

In support of their argument, plaintiffs state that in 1990, the legislature amended the MVFRL to add the term “private passenger motor vehicle” to its list of definitions in 75 Pa.C.S.A. § 1702. The legislature defined the term “private passenger motor vehicle” as a “four-wheel motor vehicle, except recreational vehicles not intended for highway use.” 75 Pa.C.S.A. § 1702. The legislature then used this narrowly defined term in describing coverage under the full tort and limited tort options. Plaintiffs note, however, that the legislature did not amend Sections 1731(b) and (c) to limit UM/UIM coverage to-accidents involving “private passenger motor vehicles.” Instead, the legislature applied the broader term “motor vehicles” in describing coverage requireménts under the UM/UIM provisions. Plaintiffs argue that a golf cart falls within the definition of “motor vehicle” and accordingly, the MVFRL requires coverage under the UM/UIM provisions for golf cart accidents.

The Superior Court recently addressed a similar question in Schoffstall v. Prudential Property & Casualty Ins. Co., 446 Pa.Super. 558, 667 A.2d. 748 (1995). In that case, we were called upon to determine whether the Motor Vehicle Financial Responsibility Law renders a claimant ineligible for benefits if he or she is injured by a race car not operated on public highways. The plaintiffs in Schoffstall were injured by debris from an accident at the Port Royal Speedway while attending the race as spectators. This court, in analyzing whether coverage for race car accidents falls -within the purview of the MVFRL, opined:

[W]e note, initially that the Pennsylvania Code defines a motor vehicle as, “[a] vehicle of a kind required to be registered under 75 Pa.C.S.A. § 1301-1377 (relating to registration of vehicles).” 31 Pa.Code § 66.1. The MVFRL specifically excludes from the list of vehicles required to be registered, and for which insurance need to be issued, “recreational vehicles not intended for highway use.” 75 Pa.C.S.A. §§ 1711, 1712 (Supp. 1995-96). Our General Assembly enacted the now repealed No-Fault Act and the present MVFRL to regulate the maintenance and use of a motor vehicle over this Commonwealth’s highways. See, e.g., Metzel v. State Farm Mutual Ins. Co., 389 Pa.Super. 30, 566 A.2d 600 (1989) (Motor home parked with engine shut off was not “a vehicle” within the No Fault Act); cf. Petties v. Petties, 210 N.J.Super. 14, 509 A.2d 190 (1986) (Family members killed by carbon monoxide while asleep above garage were not “pedestrians” under New Jersey’s Automobile Reparation Reform Act covering injuries sustained while occupying, entering into, alighting from or using automobiles).
The fact that the “racecar” causing the appellants’ injuries could have been driven on a highway and the fact that it was self-propelled to fit within the definition of “motor vehicle” contained in the Motor Vehicle Code are not dispositive. We look to the fact that at the time of the accident the vehicle was being operated, exclusively off a public highway without insurance or registration as a recreational vehicle. See Bills [v. Nationwide Mutual Ins. Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983) ], supra. Further, from a common sense perspective, we cannot lose sight of the context in which the appellants sustained injury from flying debris while “spectators” in the stands at a Fourth of July celebration in a location open to the public and for which entertainment in the form of a car race was part of the festivities.

Id. at-, 667 A.2d at 750 (footnotes omitted, emphasis in original). Thus, the issue of coverage under the MVFRL in the Schoffstall case turns upon a determination of whether the race car is “[a] vehicle of a kind required to be registered under 75 Pa.C.S.A. § 1301-1377 (relating to registration of vehicles).” Id. We find this same analysis to be applicable in the instant case.

Here, plaintiffs do not aver that the golf cart in question is “[a] vehicle of a kind required to be registered under 75 Pa.C.S.A. § 1301-1377 (relating to registration of vehicles). In fact, plaintiffs aver no facts which would bring the golf cart in question within the ambit of the MVFRL. Because Penn-land’s exclusion is not in violation of the MVFRL, we find no error on the part of the trial court in granting summary judgment in favor of Pennland.

Order affirmed.


author: CERCONE, Judge.

text:
    671 A.2d 228
    John H. RANDT and Patricia Randt, H/W, Appellants, v. ABEX CORPORATION, Allied Corporation, Brake & Clutch Company of Philadelphia, Carlisle Corporation, Celotex Corporation, SMS Automotive Products, Davis Brake & Equipment Corporation, Garlock Inc., Raymark Industries, Inc., Maremont Corporation, Delco Products, Lenco Inc., Nicolet Industries Inc., Manufactured Rubber Products Company, Nuturn Corporation, Lear Siegler Inc., Pacor Inc., Dana Corporation, Rockwell International, Southern Textile Company, Airco Welders Supply, Borg-Warner Corporation, H.K. Porter Company Inc., Pennsylvania Brake Bonding, Wagner Electric Company, American Standard, The Anchor Packing Company, General Electric Company, Turner & Newall Ltd., Monsey Products, Grumman Ohio Corporation, Industrial Salesmaster Corp., Railroad Friction, Westinghouse Electric Corp. Robert L. RYNKIEWICZ and Anne Rynkiewicz, H/W, Appellants, v. ABEX CORPORATION, Allied Corporation, Brake & Clutch Company of Philadelphia, Carlisle Corporation, Celotex Corporation, SMS Automotive Products, Davis Brake & Equipment Corporation, Garlock Inc., Raymark Industries Inc., Maremont Corporation, Delco Products, Lenco Inc., Nicolet Industries Inc., Manufactured Rubber Products Company, Nuturn Corporation, Lear Siegler Inc., Pacor Inc., Dana Corporation, Rockwell International, Southern Textile Company, Airco Welders Supply, Borg-Warner Corporation, H.K. Porter Company, Inc., Pennsylvania Brake Bonding, Wagner Electric Company, American Standard, The Anchor Packing Company, General Electric Company, Turner & Newall Ltd., Monsey Products. Louis LEPORE and Janice Lepore, H/W, Appellants, v. ABEX CORPORATION, Allied Corporation, Brake & Clutch Company of Philadelphia, Carlisle Corporation, Celotex Corporation, Colonial Rubber, Davis Brake & Equipment Corporation, Garlock Inc., Raymark Industries, Inc., Grumman Ohio Corporation, Delco Products, Lenco Inc., Nicolet Industries, Inc., TNT Liquidating Company, Nuturn Corporation, Lear Siegler Inc., Smith of Philadelphia, Dana Corporation, Rockwell International, Southern Textile Company, Airco Welders Supply, Borg-Warner Corporation, Pennsylvania Brake Bonding, Wagner Electric Company, Pacor Inc., Hausman Bus Sales & Parts, Industrial Salesmaster Corp., Maremont Corporation, SMS Automotive Products.
    Superior Court of Pennsylvania.
    Argued June 27, 1995.
    Filed Jan. 19, 1996.

      Robert E. Paul, Philadelphia, for appellants.
    Matthew Reber, Philadelphia, for Carlisle Corp., appellees.
    Before ROWLEY, President Judge
      , HUDOCK and CERCONE, JJ.

      . This decision was reached prior to the retirement of President Judge Rowley from this court.

   CERCONE, Judge.

This is an appeal from an order of the lower court denying appellants’ motions for new trial. We affirm.

The lower court aptly stated the facts and procedural history of the case:

The above-captioned cases were tried in a consolidated action with five other cases in a reverse bifurcated trial. Trial commenced before this Court and a jury on April 5, 1993. Plaintiffs presented their cases and rested on April 12, 1993. Immediately thereafter, defendants moved for nonsuit in each case, based on plaintiffs’ failure to satisfy Eckenrod v. GAF Corporation, 375 Pa.Super. 187, 544 A.2d 50 (1988), alloc. den., 520 Pa. 605, 553 A.2d 968 (1990). At the close of plaintiffs’ cases, this Court entered nonsuit in the other five cases and permitted Randt, Rynlciewicz, and Lepore, to go to the jury.
The jury entered verdicts in favor of the defendants, finding that none of the plaintiffs suffered from a compensable asbestos-related disease at that time. Plaintiffs filed Post-Trial Motions requesting new trials. On May 13, 1994, this Court denied plaintiffs’ motions. Thereafter, Notice of Appeals were filed with the Superior Court of Pennsylvania.
I. FACTS
In the instant case, plaintiffs were all former or present employees of Southeastern Pennsylvania Transportation Authority (SEPTA) at the Comly depot. Plaintiffs alleged contraction of asbestos-related diseases over the course of their careers at SEPTA caused by exposure to asbestos-containing brake products and clutches manufactured by defendants.
John Randt worked for SEPTA beginning in 1948 and ending in 1988, where he began performing brake and other mechanical work in 1972. Medical testimony at trial asserted the existence of a possible mild pleural thickening and no pulmonary asbestosis. Furthermore, Dr. Allan P. Freeman’s [sic] testified, via videotaped deposition, that Mr. Randt’s shortness of breath was attributable to asthma, coronary artery disease and obesity, contrary to Dr. Auerbach’s belief that the respiratory symptoms were due to Mr. Randt’s exposure to asbestos. Moreover, Mr. Randt’s own testimony established he had been diagnosed with emphysema as well as obesity.
Robert Rynkiewicz worked for SEPTA from 1958 to 1991. Testimony indicated Mr. Rynkiewicz was diagnosed with pleural thickening in 1984. Furthermore, Dr. Altschuler’s [sic] stated Mr. Rynkiewicz had contracted asbestosis. Mr. Rynkiewicz claimed shortness of breath walking up two flights of stairs and problems with waking up at night not able to breath[e]. Contradictory evidence of a medical examination conducted by Dr. Allan P. Freeman maintained there was no evidence of asbestos-related diseases or conditions. Furthermore, Mr. Rynkiewicz had a history of obesity, restrictive ventilatory impairment and arterial hypertension.
Louis Lepore worked for SEPTA from 1969 through the time of trial. Dr. Gelfand testified Mr. Lepore contracted restrictive ventilation and reduction of residual volume and functional residual capacity due to asbestos exposure. To the contrary, Dr. Allan P. Freedman stated he could not make a diagnosis of pleural thickening and there was no indication of pulmonary asbestosis.
At the conclusion of the evidence, the jury was presented with three questions. First, had each plaintiff contracted an asbestos-related disease. Second, if any plaintiff had contracted an asbestos-related disease, was the disease compensable at the present time. Last, what amount should be awarded to each plaintiff, if the disease was found to be compensable.
The jury found each plaintiff did contract an asbestos-related disease. It then concluded none of the plaintiffs’ disease[s] [were] .compensable at the present time. Therefore, no decision on the amount of damages was necessary.

Trial court opinion, February 17, 1995, at 1-3. Appellants raise the following issues on appeal:

1. Did the lower court commit an abuse of discretion and/or error of law when it refused to grant a new trial where the jury had determined Plaintiffs had contracted an asbestos-caused disease but awarded no money damages?
2. Did the lower court err when it denied the motion to recuse because the lower court’s son is a paralegal in an asbestos firm?
3. Are the opinions of the Superior Court in Marinan, Ottavio, and Giffear legally erroneous and violative of Supreme Court precedent?
4. Was the order denying a new trial a final order?

We will address these claims in order.

Appellants first contend that the trial court committed an error of law when it refused to grant a new trial on damages after the jury determined that appellants had developed asbestos-related diseases, but had awarded no damages. A new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). The Superior Court’s standard of review of the denial of a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or an abuse of discretion. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 537 A.2d 814 (1985), appeal denied, 520 Pa. 590, 551 A.2d 216 (1987). If support for the trial court’s decision on a motion for a new trial is found in the record, the order must be affirmed. Adamski v. Miller, 434 Pa.Super. 355, 643 A.2d 680 (1994).

In the instant case, the jury was instructed to answer three questions in regard to each case. The first question was whether the plaintiff had an asbestos-related disease. The jury was to answer this question with a “yes” or “no” response. If they answered the first question “yes,” then they were to proceed to a second question: whether the asbestos-related disease was compensable at the present time. Again, the jury was instructed to answer “yes” or “no.” If they answered “no” to the second question, they were to proceed no further and come back into court. If they answered “yes” to the second question, then they were to proceed to the third question: the amount of damages to be awarded. (N.T., April 14, 1993, at 128-29). In each of the cases on appeal, the jury answered the first question “yes,” and the second question “no.” In other words, in each case, the jury found that the plaintiff was suffering from an asbestos-related disease but that the disease was not compensable at the present time.

It is clear from the questions presented to the jury that it.was possible for them to return a verdict that a plaintiff was suffering from an asbestos-related disease but was not entitled to a damages award. Appellants made no objections to these interrogatories when the lower court presented them to the jury. Where a party fails to specifically object to a trial court’s jury instruction, the objection is waived and cannot subsequently be raised on appeal. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974). Here, appellants did not object to the three interrogatories the lower court gave to the jury. Therefore, they cannot now raise as error the issue of whether a new trial is required bécause the jury- determined that appellants' had each contracted an asbestos-related disease but awarded no damages.

Moreover, the interrogatories were in- conformance with the law. Asymptomatic asbestos-related disease is not compensable. Giffear v. Johns-Manville Corporation, 429 Pa.Super. 327, 632 A.2d 880 (1993) (en banc), appeal granted, 539 Pa. 651, 651 A.2d 539 (1994). Nor is shortness of breath alone compensable. Taylor v. Owens-Corning Fiberglas Corporation, — Pa.Super.-,-n. 2, 666 A.2d 681, 687 n. 2 (1995) “It is common knowledge that breathlessness is also associated with any number of non-asbestos-related ailments iñcluding lung cancer, excessive cigarette smoking, heart disease, obesity, asthma, emphysema and allergic reactions.” Id, The trial court’s interrogatories, which allowed the jury to find that the plaintiffs had asbestos-related diseases or conditions but to also find those conditions presently noncompensable, were correct and in accordance with the law.

The decisions relied upon by appellants to support their theory that an award of damages was required in this case involved factual situations in which the cause of the plaintiffs’ injuries was not disputed. See, e.g., Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995) (trial court did not abuse discretion in awarding new trial where jury failed to award any damages for pain and suffering; fact of plaintiffs objective injuries arising from automobile accident was not contested; defense contested only the duration of the injuries prior to healing); Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952)(trial court properly awarded new trial where, in action for serious personal injuries resulting from a motor vehicle accident, jury awarded sum for medical bills but did not award anything for pain, suffering, inconvenience, or lost wages). In contrast, in the instant case, there was conflicting testimony as to whether appellants had contracted any asbestos-related disease, and whether the subjective symptoms of which appellants complained were caused by an asbestos-related condition.

The jury’s verdict in this case was supported by the evidence. There was expert testimony to the effect that Mr. Randt had possible mild pleural thickening but that it would not account for his shortness of breath. Similarly, expert testimony was admitted indicating that Mr. Rynkiewicz had no shortness of breath related to his asbestos exposure. As to Mr. Lepore, there was expert testimony to the effect that the plaintiff had no pleural thickening or evidence of pulmonary asbestosis, but that he was obese and a diabetic. On the other hand, expert testimony offered by appellants showed that Lepore had bilateral pleural thickening caused by exposure to asbestos, and a moderately severe reduction of residual volume, by pulmonary function study, the degree of which the expert could not attribute completely to Lepore’s obesity. Randt offered testimony that he had asbestos related pleural disease, with respiratory symptoms some of which had to be attributed to his asbestos exposure. Mr. Rynkiewicz’ expert witness testified that Rynkiewicz had asbestos-related pleural plaque and asbestosis and that there was no other explanation for his symptoms.

A jury is entitled to believe all, part, or none of the evidence presented. Rafter v. Raymark Industries, Inc., 429 Pa.Super. 360, 632 A.2d 897 (1993). A jury can believe any part of a witness’ testimony that they choose, and may disregard any portion of the testimony that they disbelieve. Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). Credibility determinations are for the jury. Sundlun v. Shoemaker, 421 Pa.Super. 353, 617 A.2d 1330 (1992). In this case, the jury, in finding that appellants had contracted asbestos-related diseases which were not compensable, properly exercised their function of weighing the testimony presented and making credibility determinations. A new trial should not be granted on a mere conflict in the testimony. Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984). Here, there was sufficient evidence to support the jury’s determination. Appellants’ arguments on appeal go only to a conflict in the evidence which the jury resolved by finding that the appellants had asbestos-related diseases which were not compensable. Therefore, the lower court acted properly in. denying appellants a new trial.

Appellants contend that the trial court erred in its charge by not instructing the jury that appellants had the right to collect for “fear and risk of cancer.” Appellants assert that where there is a disease or- injury, the traditional items of damage are to be collected, “such as fear and risk and emotional distress and the value of restriction in life function.” Brief for appellant, at 14. They argue that if a plaintiff “has contracted symptoms due to his asbestos inhalation then he should be able to collect for emotional distress, pain, shortness of breath, interference with his life functioning and fear of the conditions worsening even if he can’t collect for fear of cancer.” Id.

Appellants’ argument addresses two separate aspects of damages: (1) damages which may be awarded to a plaintiff suffering from asbestos-related disease for the fear and risk of cancer; and (2) damages which may be awarded to such plaintiff for “emotional distress, pain, interference with his life functioning and fear of the conditions worsening.” It is well-established that damages for fear and risk of cancer cannot be awarded when the plaintiff has not yet contracted that disease. Marinari v. Asbestos Corporation, Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992). Tn Marinari,, the two-disease rule was established under which damages related to cancer, even the fear and risk of such, may not be recovered in an initial action for asbestos-related disease where the plaintiff in such action has not yet contracted cancer. Id. at 451-54, 612 A.2d at 1026-28. Under Marinari, if and when a plaintiff contracts asbestos-related cancer, a separate action may be brought for damages related thereto. Id.; Ottavio v. Fibreboard Corporation, 421 Pa.Super. 284, 296, 617 A.2d 1296, 1302 (1992). Since appellants have not demonstrated that they are afflicted with asbestos-related cancer, damages for risk and fear of cancer are not available to them in this action.

As to the second kind of damages claimed by appellants, recent case law makes clear that damages may only be awarded where an asbestos-related condition has produced a compensable injury, ie., the condition is symptomatic and produces an impairment or disability. Giffear v. Johns-Manville Corporation, 429 Pa.Super. at 336-37, 632 A.2d at 888. “To fully compensate a plaintiff for an asbestos-related injury that is likely to get progressively worse, a jury may award for future harm.” Giordano v. A.C. & S., Inc., 446 Pa.Super. 232,-, 666 A.2d 710, 712-13 (1995) (citing Martin v. Johns-Manville Corporation, 508 Pa. 154, 494 A.2d 1088 (1985)). In addition, there must be evidence presented at trial which would support the award of damages for future harm. See Giordano, 446 Pa.Super. at-, 666 A.2d at 713 (use of actuarial tables to estimate plaintiffs’ life expectancies in action for asbestos-related injuries was proper). In this case, the jury found that none of the appellants have contracted compensable asbestos disease. Thus, even if appellants had presented evidence to establish their entitlement to damages for future harm, it would not have availed them in this action because they failed to establish that their asbestos-related diseases were compensable. In the event that their asbestos-related injuries become compensable, ie., that appellants’ conditions produce demonstrable impairment, they may institute another lawsuit at that time. See White v. Owens-Corning Fiberglas Corporation, 447 Pa.Super. 5, -, 668 A.2d 136, 145 (1995) (if a plaintiff eventually develops discernible symptoms due to his asbestos exposure he would have a compensable injury for which he would be able to institute another lawsuit at that time); Giffear v. Johns-Manville Corporation, 429 Pa.Super. at 341, 632 A.2d at 888 (if and when appellant’s condition manifests itself as a functional impairment, appellant may then bring an action for damages).

Appellants also contend that Marinari, Ottavio, and Giffear should not be applied to the instant case, but should be applied' only to cases in which the complaints were filed after those' decisions. The Pennsylvania Supreme Court has set forth the correct approach to the question of retroactivity of judicial decisions:

The general rule followed in Pennsylvania is that we apply the law in effect at the time of the appellate decision. Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983). This principle applies with equal force to both civil and criminal proceedings. Id.; Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981). This means that we adhere to the principle that, “a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occurs [sic] before the judgment becomes final.” Common wealth v. Brown, supra, 431 A.2d at 906-07, citing August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981). We noted in August that at common law, a decision announcing a new principle of law is normally retroactive. We further noted in August that although retroactivity is the general rule, a sweeping rule of retroactive application is not justified. Retrospective application is a matter of judicial discretion which must be exercised on a case by case basis. August v. Stasak, supra, 424 A.2d at 1330, citing Linkletter v. Walker, [381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1985) ].

Blackwell v. Commonwealth, State Ethics Commission, 527 Pa. 172, 182, 589 A.2d 1094, 1099 (1991).

In the instant case, both Marinari and Ottavio were decided prior to the trial. Appellants’ argument that these two decisions should not be applied to the instant case is therefore without merit. At the time Giffear was decided (September 16,1993), appellants had filed post-trial motions in this case which were then pending in the lower court. It was determined in Dempsey v. Pacor, Inc., 429 Pa.Super. 404, 632 A.2d 919 (1993) that Marinari, could be applied retroactively to cases which were tried before that decision was filed. Similarly, we can conceive of no reason why the Giffear decision should not be applied to the instant case. Appellants have not alleged any such reason and we are not aware of one which would require that an exception to the general rule of retroactivity be applied herein.

Appellants also allege that the trial court erred in failing to recuse itself from the case because the trial judge’s son is employed by “an asbestos defense firm as a paralegal.” Brief for appellants, at 15. The propriety of a judge’s decision on a motion for recusal is reviewed on appeal under an abuse of discretion standard. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). Here, appellants have failed to support their contention with any citation of authority or any specific allegations as to the purported bias or prejudice of the trial judge in the instant case. The trial court gave the following reasoning for its decision to deny the recusal motion:

The fact that the undersigned’s son works as a paralegal for a defense firm in New Jersey which represents an asbestos defendant did not require recusal from this case. Furthermore, the undersigned had nothing to do -with his son’s procurement nor preservation of the job as paralegal. This court was fully able to dispose of the matter fairly and without prejudice. Therefore, there was no abuse of discretion.

Trial court opinion, February 17, 1995, at 11. We similarly find no abuse of discretion in the trial court’s decision to deny the recusal motion. Appellants have not set forth any specific allegations of the trial judge’s bias or prejudice in the instant case. Based on our review of the record, we agree that the trial court was “fully able to dispose of the matter fairly and without prejudice.” Id.

Order affirmed.

      . An appeal of an order denying a motion for new trial after a trial by juiy “may be remanded or subject to other appropriate action of the appellate court when the order is such that it may be reduced to judgment or final decree and entered in the docket but such action has not been taken.” See Note, Pa.R.A.P., Rule 301, 42 Pa.C.S.A. According to the certified record submitted to this court in the instant case, judgment has not been entered on the record. However, in the interests of judicial economy, we will "regard as done that which ought to have been done.” See McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 254, n. 1, 561 A.2d 328, 330 n. 1 (1989)(although order dismissing appellants’ motion for post-trial relief was not reduced to judgment, court would regard as done "that which ought to have been done,” in the interests of judicial economy) (citation omitted). Cf. Johnston the Florist, Inc. v. TEDCO Construction Company, 441 Pa.Super. 281, 657 A.2d 511 (1995) (en banc )(appellate court may not review merits of appeal where appellant has refused "outright” the appellate court’s request to enter judgment). The instant case is distinguishable in that, unlike Johnston the Florist, no request was made to appellants here to enter judgment.

      . Until a decision of the Superior-Court is overruled by the Supreme Court, such decision is the law of the Commonwealth. Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982).

      . Appellants have failed to apprise this court that any such evidence was admitted at trial. We note that the record certified to us on appeal was incomplete in that the notes of testimony were not included. The lower court was not able to provide us with those notes despite our request, which is not our responsibility to undertake. See Commonwealth v. Feflie, 398 Pa.Super. 622, 581 A.2d 636 (1990), appeal denied, 528 Pa. 621, 597 A.2d 1151 (1991)(it is the responsibility of the appellant to ensure that a complete certified record is provided to the appellate court). Inasmuch as appellants have failed to point out the existence of any evidence of future harm such as was before the court in Giordano, we conclude that no such evidence in fact exists in this case. However, even if such evidence were present, it would not avail appellants who failed to prove to the jury that their asbestos-related conditions were presently compensable.

      . As we previously noted, although appellants have failed to petition for judgment to be entered on the docket, we will consider done "that which ought to have been done.” McCormick v. Northeastern Bank of Pennsylvania, supra, note 1.