author: WATKINS, Judge:

text:
    472 A.2d 1158
    COMMONWEALTH of Pennsylvania v. Andre BARKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1981.
    Filed March 9, 1984.
    Reargument Denied May 16, 1984.
    Petition for Allowance of Appeal Denied Sept. 11, 1984.

      Burton A. Rose, Philadelphia, for appellant.
    Maxine Stotland, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, DiSALLE  and WATKINS, JJ.

      DiSALLE, J., did not participate in the consideration or decision of this case.

   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas, Criminal Division, of Philadelphia County and involves the defendant-appellant’s appeal from a judgment of sentence of five (5) to twenty (20) years imprisonment after he was convicted by a jury of robbery, simple assault, conspiracy and prohibited offensive weapons.

The evidence produced at trial established that on February 5, 1979 at approximately 3:00 P.M., the defendant entered the Ramo Beauty Products Store at 2228-30 N. 11th Street while Artis Ray, the victim, was talking on the telephone. After observing that the defendant had entered the store, the victim told him he would be with him shortly. Both the fluorescent lights and the daylight enabled the victim to see the defendant clearly at this point. As the victim concluded his phone conversation, the defendant pulled a shotgun from his tote bag and, shoving it into his face, announced a hold-up. He pushed the victim into the rear room of the store and ordered him to kneel. The defendant then hit him on the forehead with the barrel of the gun. The victim fell forward, breaking the frame of his glasses. Defendant knelt next to him and, facing him, threatened to kill him. Defendant then tied him up with clipper cords from the beauty parlor. At that point, a second person entered the rear room of the store and defendant handed him the gun. The second man kicked the victim. The defendant then began to tear the victim’s clothes apart in order to determine if he had money in his pockets. The perpetrators searched his wallet and card case and took a dollar bill as well as a blank check which they insisted he complete. Two more men entered the store and were joined by defendant and the second male. The victim watched them fill empty boxes with electric curlers, cords, combs, brushes, and other beauty equipment. Defendant then asked him for the key to his car and joined the others in packing the “loot” in the car. The victim then untied himself as they loaded the car and watched the four figures as they drove away in his 1978 Omega. He called the police immediately to report the robbery. When a policeman arrived, he described the car and license number and recounted the incident to the police.

As a result of several radio calls, the Omega was spotted quickly by the police. When the driver saw the police behind him, he veered into the right front fender of the police car and then, after hitting the rear of a Cadillac, jumped out of the car and ran away, successfully eluding the police.

When the car was finally stopped, Officer James McDevitt discovered a .32 caliber automatic pistol on the seat between defendant, seated in the left rear seat, and co-defendant Wright. Officer Rudolph Meritt observed a blue tote bag between defendant’s legs with a shotgun barrel protruding. The shotgun shells were retrieved from the bag. Finally, the merchandise stolen from the victim’s store was found in the trunk of the car in which the three males had been sitting. Within ten minutes of the call to the police, two groups of males were brought back for identification by the victim. He dismissed the first group but identified the second group of three males, which included defendant, as his assailants. The victim was subsequently taken to the Medical College Hospital of Pennsylvania for examination of the bump on his head caused by the blow from the butt of defendant’s shotgun.

On November 29, 1979, the jury returned a verdict of guilty of robbery, simple assault, conspiracy and prohibited offensive weapons.

On appeal, the appellant contends that the trial court erred when it refused to admit into evidence statements of the co-defendants’ given to police shortly after their arrest. Defendant claims that said statements should have been admitted into evidence as declarations against penal interests. In the statements the co-defendants’ implicated themselves in the aforesaid crimes, but claimed that defendant did not commit same, but, rather, was picked up in the automobile by them at a time subsequent to the robbery. Defendant argues that the complete statements of both co-defendants’ should have been admitted at trial. We note that the trial court had given the defendant ample opportunity to produce both co-defendants at his trial. Subpoenas were issued for them and a process server hired to find them, but neither co-defendant could be found by the defendant.

In Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), cert. denied 423 U.S. 1056, 99 S.Ct. 788, 46 L.Ed.2d 645 (1976), a plurality opinion of our Supreme Court held that a declaration against penal interest may contain both exculpatory and inculpatory facts and that only the inculpatory portion of the statement is admissible as an exception to the hearsay rule because of its inherent trustworthiness. See also Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974). In the instant case the portion of the co-defendants’ statements to the effect that they merely met the defendant after the crime had been committed did not constitute an admission to any additional crimes that subject them to any additional penalties. It was not contrary to their penal interests to assert that they and a third companion had acted without the defendant. In Commonwealth v. Ayala, 277 Pa.Superior Ct. 363, 419 A.2d 1187 (1980) we recognized the inherent unreliability of a confession exculpating possible accomplices at no cost to the defendant. The portion of co-defendants’ statements exculpating the defendant are not contrary to their penal interests and were therefore properly held to be inadmissible by the court below. We see no valid reason to distinguish the instant case from Colon as the inherent unreliability of such statements is the reason that they have been held inadmissible and co-defendants’ statements in this case are no more reliable than were those with which the Supreme Court dealt in Colon. We hold that the court below ruled correctly when it refused to admit the co-defendants’ statements.

The defendant also claims that the court’s charge to the jury constituted reversible error in that the court charged the jury on an accomplice theory. Defendant argues that the evidence did not support such a charge and that the court failed to clarify the charge. The court charged on accomplice liability as follows:

Now, in this particular case part of the theory under which the Commonwealth is proceeding as a matter of law involves or will require some explanation on my part about the accomplice theory of liability. It means simply this: Because there is reference here to the fact that there were several people involved in this incident, you may find this defendant guilty of the crime of simple assault or robbery without finding that he personally performed the acts or engaged in the conduct required for the commission of the crime. This is what the law calls being responsible for the acts or conduct of your accomplice.
A defendant is still guilty of a crime if he is an accomplice of another person who commits that crime. The defendant is an accomplice if with the intent of promoting or facilitating the commission of the crime he does any one or more of the following things: He solicits, or commands, or encourages, or requests, or permits the other person to commit, or he aides, or agrees to aide, or attempts to aide the other person or persons in the planning or commission of either of those two offenses. However, a defendant is not an accomplice if before the other person commits the crime he stops his own efforts to promote or facilitate the commission of the crime and wholly deprives his previous efforts of effectiveness in the commission of the crime.
In other words, he withdraws from being involved wholly and not partially.
If he is partially involved along with others in the commission of one or more of the crimes I just mentioned, then, he is guilty even though he did not do all of the acts alleged.
You may find the defendant guilty of the crime of simple assault and/or robbery on the theory that he was an accomplice as long as you are satisfied beyond a reasonable doubt that the crime was committed and that the defendant was an accomplice of one of the persons who committed it.
It does not matter whether the person you believe committed the crime has not been prosecuted or convicted, or has been convicted of different crime or degree of crime, or has immunity from prosecution, or even if that person was acquitted.
Further, ladies and gentlemen, you as jurors need not agree on the relative roles played by the defendant and his accomplice or accomplices provided each juror is satisfied that the crime was actually perpetrated by the defendant himself or by an accomplice of the defendant.

Said instructions adequately set forth the law with regard to accomplice liability. See 18 C.P.S.A. 306. Furthermore, the testimony established that the criminal acts were committed by defendant and three other accomplices acting in concert. The charge was proper and the evidence supported it. No further clarification was necessary.

Next, the defendant argues that the court erred in refusing to supplement its charge with an instruction concerning the evaluation of identification testimony. We note that Artis Ray, the victim, made a positive identification of the defendant as the one who first entered his establishment arid was the lead man in the robbery and related offenses. We note that Ray was first shown other individuals by the police and positively excluded them as the perpetrators of the crimes. We also note that the victim had ample opportunity to observe the defendant during the fifteen minute episode which took place in an area where he had the opportunity to observe his assailants clearly and that his identification of the defendant as the assailant remained unshaken after vigorous cross-examination. Where a witness’ opportunity to identify the accused is good and his identification remains positive and unshaken even after cross-examination, the witness’ testimony is sufficient proof of identity. Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 402 A.2d 546 (1979). Under such circumstances we see no need for the cautionary instructions requested by the defendant despite his arguments with respect to the fact that the victim had not remembered the color of his trousers on the day of the incident.

Finally, the defendant argues that his sentence is excessive. Prior to sentencing the court had ordered a pre-sentence report and a mental health evaluation. In the sentencing colloquy the court below stated that he had read the aforesaid reports and had considered them. He also stated that he had taken into account the age of the defendant, this prior record, the nature and the degree of the offenses of which he had been convicted, and the needs of the defendant. With respect to the incident itself the court stated that:

“We are talking about a shotgun robbery on a very old man with an unnecessary amount of terror and fear involved...”

With respect to the needs of the defendant, the court stated:

“Well, I don’t think we would be doing him a service if he wasn’t incarcerated for at least some reasonable period of time in a structured atmosphere where he can get the kind of psychotherapy that he needs.”

We are convinced that the sentence was the result of the court’s thoughtful consideration of all the factors relating to the defendant and the offenses of which he was convicted. See Commonwealth v. O’Brien, 282 Pa.Superior Ct. 193, 422 A.2d 894 (1980). The court did not err in imposing the sentence that it did.

Judgment of sentence affirmed.

      . Whether or not defendant’s efforts to locate the co-defendants were sufficient enough to permit us to find that they were “unavailable” is not decided here.


source: Caselaw Access Project

license: Public Domain

text:
    472 A.2d 1162
    COMMONWEALTH of Pennsylvania v. Marion CURRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 22, 1981.
    Filed March 9, 1984.
    Petition for Allowance of Appeal Denied June 5, 1984.

      Mark E. Kogan, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas, Criminal Division, of Philadelphia County, denying a motion to dismiss the granting of a mistrial. The charges in this case were burglary, robbery, rape and possession of instruments of crime. The jury returned verdicts of not guilty of burglary and robbery, but were unable to agree on rape and the possession of instrument of crime charges.

They were sent back for further discussion, but on the next day after deliberating a total of twenty hours, they sent a message to the judge that they were hopelessly deadlocked and were unable to reach a verdict on the rape and weapon charges. Judge Klein, the trial judge, found that there was manifest necessity to declare a mistrial on the remaining charges.

The defendant filed a Motion to Dismiss the remaining bills alleging that the prosecution on these charges was barred by double jeopardy. The motion was denied and this appeal followed.

We find that the trial judge properly declared a mistrial. The alleged victim in this case, Mrs. Cheryl Freeman, testified that she was pregnant and was home alone with her two children, ages three and five, when the defendant and another male entered the house and at gunpoint ransacked it and at knifepoint brutally attacked and raped her. The defense was an alibi to the effect that at the time alleged he was at a wake.

The doctrine of collateral estoppel as decided by the federal constitutional proscription against double jeopardy “means simply 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 lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). To resolve the merits of such a claim a court must determine in a common sense fashion what facts the jury must have found to acquit the defendant. Commonwealth v. Steppke, 267 Pa.Superior Ct. 442, 448-49, 406 A.2d 1123, 1126-27 (1979). If it cannot be said with certainty that a question of fact, critical to the charges now sought to be tried has been litigated in defendants favor, defendants claim must fail. Commonwealth v. Zabala, 274 Pa.Superior Ct. 401, 409-10, 418 A.2d 467, 471-72 (1980).

In the instant case, the trial judge applied these principles as follows:

“If the jury does believe part but not all of the complainant’s testimony, there are a number of possibilities where the verdict could be rational. For example, the jury may have believed that the complainant allowed the defendant to enter, since he claimed to know her husband. Their questions and the defense argument stressed that no independent evidence was presented to confirm her testimony that the back door was broken down. Further, only the complainant testified that property was taken, and the record was silent as to whether any property was recovered. The jury could have thought the reason that no confirming evidence was presented was not just trial strategy to limit the witnesses and time of the case (which seems apparent and can be criticized only by 20-20-hindsight), but thought that this lack of evidence created a reasonable doubt. The jury still could have believed that after Curry was in the house, perhaps by consent, he raped the complainant at knifepoint. This certainly is a possibility and a reasonable resolution of the testimony, even if it might not be the first choice as to a version of what happened by someone else reading the record.”

Here the jury acquits the defendant on certain charges and is unable to reach a verdict on others. This inability makes it evident that while the jury resolved the narrow federal issues necessary to the acquittal charges in defendants favor, it has not resolved all the factors in defendants favor. Commonwealth v. Steppke, supra. A jury may believe all, part or none of the witness’ testimony, and the court in such a case will carefully scrutinize the evidence for any possible explanation for the unified verdict. See Commonwealth v. Jones, 274 Pa.Superior Ct. 162, 171-72, 418 A.2d 346, 350-351 (1980).

In the instant case, it is certainly possible, if not obvious, that the jury had a reasonable doubt as to whether or not any items were actually stolen, without unanimously settling the issue of whether it was the defendant who raped Mrs. Freeman. The not guilty verdicts indicate that credibility was the concern of the jury.

As Judge Klein stated in his opinion: “The jury ... for example ... may have believed that the complainant allowed the defendant to enter since he claimed to know her husband.”

The court below further stated:

“In any event, not only is a jury free to believe part of a witness’ testimony, as some of the jury members here did, but a jury is also free to come in with apparently inconsistent verdict. See Commonwealth v. Nathaniel Harris, 239 Pa.Super. 603, 360 A.2d 728 (1976). Collateral estoppel does not apply here, because there is no way to determine what parts of the complainant’s testimony the jurors holding out for conviction on the rape and possession of an instrument of crime charges believed, and what parts they disbelieved. Those jurors necessarily rejected defendant’s alibi defense, but apparently believed only part of the Commonwealth’s evidence, as is their right. And defendant correctly concedes in his Motion to Dismiss that sufficiency of the evidence is not an issue.”

The defendant’s contention that the not-guilty verdicts determined the identity of the perpetrator is falacious as the jury could well have believed that there was no forcible entry or talcing of property. Those doubts may have determined the not-guilty verdicts, but do not mean that some members of the jury were not convinced beyond a reasonable doubt that the defendant raped the complainant at knife or gun point.

In Steppke, supra, Judge Spaeth noted:

“This narrow reading of the verdict does not expose defendant to the various dangers that the ban against double jeopardy was intended to guard against. The Commonwealth did not bring the charges piecemeal as a harassing technique. See Commonwealth v. Campana [455 Pa. 622, 314 A.2d 854 (1974) ], supra. Nor did the Commonwealth intend the prosecution to be a 'trial run’, see Ashe v. Swenson, supra; for with no other charges in the offing, the Commonwealth would have had no recorse against appellee in the event of complete acquittal. Nor does this case suggest prosecutorial vindictiveness, as Judge Hoffman, in dissent, sensed in Commonwealth v. Klinger, 264 Pa.Superior Ct. 21, [398 A.2d 1036] (1979). Judge Hoffman disagreed, saying that the jury had most likely acquitted defendant of murder because it believed his alibi. The same cannot be said here, given the jury’s inability to agree.”

In Commonwealth v. Fredericks, 235 Pa.Superior Ct. 78, 340 A.2d 498 (1975), it was held that the factors to be considered in granting a mistrial in cases where the jury is deadlocked are: the length of time the jury deliberated; the complexity of the issues involved; the number of times the jury came back for instructions; the demeanor of the wit* nesses; the attentiveness of the jury and other factors the court finds relevant.

Here the jury deliberated for the better part of three days. The first time they reported the deadlock, the court sent them back to continue deliberations. Only when they again indicated that agreement was hopeless did he find manifest necessity to declare a mistrial.

We affirm the order granting a mistrial on the ground of manifest necessity; and the Motion to Dismiss on double jeopardy grounds was properly denied by the court below.


author: PER CURIAM:

text:
    472 A.2d 1389
    COMMONWEALTH of Pennsylvania v. Gerardo Nieves GONZALEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1984.
    Filed March 16, 1984.

      Gary Spohn Fronheiser, Assistant Public Defender, Boyertown, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.
    Before WICKERSHAM, OLSZEWSKI and ROBERTS, JJ.
   PER CURIAM:

Appellant was convicted, after a jury trial, of violating § 3742(a) of the Vehicle Code (Accidents Involving Death or Personal Injury), in that he failed to stop his vehicle after being involved in an accident resulting in injury to a person and failed to give information and render aid to the victim. Appellant filed a motion for a new trial and/or arrest of judgment, contending that the verdict was contrary to the law, the evidence, and the weight of evidence, and that the evidence was insufficient to sustain the verdict. Appellant’s motion was denied and he was sentenced to a term of imprisonment in Berks County Prison for two (2) to twelve (12) months, and ordered to pay a fine, costs and restitution. Appellant then instituted this appeal.

Appellant contends that the evidence presented at trial by the Commonwealth was insufficient to establish his guilt beyond a reasonable doubt. In support of this allegation, appellant claims that the alleged victim suffered no immediate injuries as a consequence of the accident, and that any pain which the alleged victim suffered was due to a pre-existing physical condition.

The test for sufficiency of evidence in a criminal case is whether, viewing all of the evidence admitted at trial in a light most favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Tribble, 502 Pa. 619, 467 A.2d 1130 (1983); Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976) .

The question of credibility is left to the jury and the verdict will not be disturbed if the jury determines the evidence is worthy of belief. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120 (1983); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). Furthermore, the mere existence of a conflict in the evidence does not mean the trier of fact was required to resort to speculation. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977) .

The record in this case discloses the following facts:

On December 5, 1979, appellant was involved in an automobile accident with the alleged victim, Miguel Seda. Appellant then drove away without stopping his vehicle to provide the necessary information and to render aid as required by § 3742(a). (N.T. 7)

Shortly thereafter, Mr. Seda was taken by ambulance to Community General Hospital and examined by Dr. Caleb L. Killian, who determined that Mr. Seda was suffering from contusions to the lower back area and that he was experiencing severe pain (N.T. 8, 21-22). While the x-rays taken at the hospital showed no broken bones, Dr. Killian testified that Mr. Seda’s entire left side was bruised and that this injury was of recent origin (N.T. 21-25). Dr. Killian then treated the victim with muscle relaxants and analgesics, discharged him, and instructed him to see his own physician for a follow-up exam (N.T. 22-23).

Appellant contends that the victim’s condition was not attributable to the accident, but rather due to a pre-existing physical condition which rendered the victim incapacitated before the accident and unable to work (N.T. 10-12). The record reflects that Dr. Killian was unaware of the victim’s previous back troubles and that the victim constantly suffered from back pain prior to this accident (N.T. 10-12, 25). Therefore, appellant contends that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that an injury resulted from the accident as required by § 3742(a).

The provision of the Vehicle Code under which appellant was convicted provides:

§ 3742. Accidents involving death or personal injury
(a) General rule. — The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render , aid). Every stop shall be made without obstructing traffic more than is necessary.

75 Pa.C.S.A. § 3742.

Unfortunately, § 3742 does not define the term “injury” and there is no applicable case law resolving this matter. Since the legislature did not provide a comprehensive definition of “injury” when it enacted § 3742, it is the opinion of this Court that a “common sense” application of the term be utilized, which carries out the legislative intent and purpose of § 3742.

Section 3742 is a hit-and-run statute, which supersedes 75 P.S. 1027, and is aimed at punishing drivers who attempt to flee the scene of an accident in which they had been involved without fulfilling their legal duty to stop, give information, and render aid. Commonwealth Dept. of Transportation v. Stamoolis, 6 Pa.Commw. 617, 297 A.2d 532 (1972) [interpreting 75 P.S. § 1027 (repealed)]. Section 3742 was intended to deal with a very serious problem — the hit-and-run driver, who is seeking to evade his responsibility. While § 3742 is a “penal” statute and should be strictly construed, it should not be so narrowly and technically construed as to reach an absurd result. Id., 6 Pa.Cmwlth. at 620, 297 A.2d at 534.

The only legal question before this Court is whether the appellant could have been found guilty of violating § 3742. This question is not concerned with the extent of the victim’s injury, but rather with whether the victim did in fact suffer any injury due to the accident.

Black’s Law Dictionary broadly defines “injury” as: “[a]ny wrong or damage done to another, either in his person, rights, reputation, or property.” The term “personal injury” is defined as: “[i]n a narrow sense, a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or reputation.” Id. at 707.

In light of the purpose and intent of § 3742, it is the opinion of this Court that the term “injury” should be broadly defined. Applying a narrow construction of this term would otherwise enable hit-and-run drivers to use a legal technicality as a means of evading their responsibility under § 3742. This result would clearly defeat the purpose and intent of § 3742.

Applying the above definition of “injury” to the instant case, this Court has reviewed the record and is satisfied that the jury could reasonably have concluded that the victim, Miguel Seda, suffered an injury as a result of the accident in which the appellant failed to stop, give information, and render aid. Judge Eshelman provided the jury with the following instructions:

“It is your duty to decide whether or not the alleged victim, Miguel Seda, was injured in the collision. You may find that Mr. Seda was injured if you are satisfied, beyond a reasonable doubt, that Mr. Seda suffered contusions or muscular strains, however slight, as a result of a collision. The fact that a collision compounded or worsened a pre-existing injury is not important. That is, you may find that Mr. Seda was injured in the accident, even though there is evidence that he had a pre-existing injury, if you are satisfied, beyond a reasonable doubt, that he suffered additional injury, however slight, as a result of the collision.” (N.T. 86-87)

The above jury instructions were adequate since the term “injury” is such a widely used word that the average juror would have had no problem understanding its meaning.

In the instant case, the Commonwealth presented testimony to establish that appellant was involved in an automobile accident in which the victim was injured. Viewing all of the evidence in a light most favorable to the Commonwealth, it is the conclusion of this Court that there was sufficient evidence to enable the jury to find that the victim was injured and that appellant was guilty of violating § 3742.

Judgment of sentence affirmed.

      . Vehicle Code, Act of June 17, 1976, P.L. 162, § 3742, 75 Pa.C.S.A. § 3742. In order for there to be a violation of § 3742(a), the Commonwealth must prove beyond a reasonable doubt that the alleged victim was injured or died.

      . BLACK’S LAW DICTIONARY 706 (5th Ed.1979).


author: WICKERSHAM, Judge:

text:
    473 A.2d 116
    COMMONWEALTH of Pennsylvania v. Harvey ENSMINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1983.
    Filed Feb. 10, 1984.
    Reargument Denied April 18, 1984.

      Spero T. Lappas, Harrisburg, for appellant.
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   WICKERSHAM, Judge:

On August 13, 1980, appellant Harvey Ensminger was arrested and charged with possession of marijuana with intent to deliver. The arrest followed a search of the Ensminger residence conducted pursuant to a duly issued search warrant. Appellant filed pre-trial motions seeking, inter alia, suppression of the fruits of the search on the ground that the search warrant was improperly issued. On February 26, 1981, after a hearing, appellant’s pre-trial motions were denied. On March 11, 1981, the Honorable John Walter, sitting without a jury, found appellant guilty as charged. Post-trial motions were filed and denied. Appellant was sentenced on December 1, 1981. This appeal timely followed.

Appellant avers that the search warrant was issued on the basis of an affidavit of probable cause that relied on information supplied by a confidential informant. Said affidavit of probable cause reads, in pertinent part, as follows:

During the month[s] of July and August the affiant conducted a drug investigation in the Northern Lebanon County area. As a result of this investigation names of local drug traffickers were learned from contacts made on the street while operating in an undercover capacity. The following names were learned as local traffic[k]ers in marihuana, cocaine and pills. Phillip “Lippy” Ensminger and Harvey ENSMINGER, who reside at a gray stone house located along the North side of Route 22 at RD# 3 Jonestown Pa.
During the month[s] of July and August 1980, the affiant was in contact with an informant which he feels reliable. The informant has personal contact with the ENSMINGERS at their residence. The informant has purchased marihuana and cocaine from “Lippy” and Harvey ENSMINGER at their residence during this investigation period.
Investigation by the affiant revealed that “Lippy” and Harvey ENSMINGER do in fact reside at RD# 3 Box 7320 Jonestown, Pa. in a gray stone house located on the North side of old Route 22, Jonestown, Pa.
During the third week in July 1980 the informant revealed that a large drug buy was to be made in the Northern [Lebanon] County area involving Harvey ENSMINGER, “Lippy” ENSMINGER, Jeff STUPPI, a white male named Tiny and a white male named Squiggy. A large quantity of marihuana and cocaine was involved. The informant further related the ENSMINGERS were to end up with a large quan[t]ity of the drugs at their residence in RD# 3 Jonestown, Pa.
On 11 August 1980 the informant was in personal contact with the affiant during the evening hours. The informant related he personality] was in the basement of the ENSMINGER residence on Saturday August 9th and Sunday August 10th and personally observed a large quantity of marihuana being bagged along with a large quantity of cocaine.
On 11 August 1980 the informant in the presence of the affiant personally entered the ENSMINGER residence and delivered a quantity of marihuana to the affiant. The substance was field tested and found to react positively to the field reagent test for marihuana.
The affiant therefore deems the informant reliable and the information received true and correct.

Brief for Appellant at 43, Appendix 3.

At a suppression hearing held on February 26, 1981, the Commonwealth presented the testimony of Trooper Haberstroh who was the affiant to the affidavit of probable cause and who had searched the appellant’s residence pursuant to the search warrant. The trooper testified to the circumstances surrounding the informant’s entry into the Ensminger residence. Defense counsel lodged a continuing objection to any testimony that went beyond the averments in the affidavit of probable cause.

The suppression court overruled appellant’s objection and allowed the trooper to testify that he conducted a pat-down search of the informant prior to the informant’s entry into appellant’s home (N.T. 2-26-81 at 14) and that he believed the informant did not possess any marijuana prior to entry. (N.T. 2-26-81 at 6) The trooper also testified that upon exiting from appellant’s residence, the informant presented him with a marijuana cigarette. (N.T. 2-26-81 at 15) The marijuana cigarette was admitted into evidence at the suppression hearing. (N.T. 2-26-81 at 21).

Appellant’s first issue in this appeal concerns the suppression court’s admission of evidence beyond the averments in the affidavit of probable cause. Specifically, appellant states the issue as follows:

May a Suppression Court consider evidence beyond that which appears from the four corners of an Affidavit of probable cause to search?

Brief for Appellant at 2. Since, as discussed in more detail below, we find that the affidavit itself, independent of the additional evidence offered in testimony, contained sufficient information to support a finding of probable cause, we need not address this issue.

Appellant’s remaining issues question whether the affidavit was sufficient to support a finding of probable cause. Specifically, appellant states the issues as follows:

2. Does the affidavit of probable cause in the instant case comply with the legal requirements concerning the presentation of:
(1) Underlying circumstances supporting the informant’s conclusion that the contraband to be seized will be found at the place to be searched; and
(2) The circumstances justifying the affiant’s belief in the reliability of the informant?
3. When an Affidavit of probable cause to search relies upon an informant’s alleged controlled receipt of marijuana from within the premises to be searched, does the Affidavit have any impact when it does not reflect a pre-entry search of the person of the informant?

Brief for Appellant at 2. Appellant’s second issue reflects a distrust of the information supplied by the informant and of the informant himself. We must, therefore, determine whether the information supplied by this informant supported a finding of probable cause.

Since the United States Supreme Court’s decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), courts have employed a “two-pronged test” to determine whether an informer’s tip can form the basis of probable cause. First, an officer requesting a warrant has to adequately reveal the circumstances or means by which he came by the information given in the affidavit. Second, the affidavit has to establish that the officer had a reasonable basis for concluding that the informer was reliable.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court replaced this “two-pronged test” with a “totality of the circumstances” approach. The facts of the Gates case were well summarized by this court in Commonwealth v. Sorrell, 319 Pa.Super. 103, 465 A.2d 1250 (1983):

[A]n anonymous informant had sent a letter to the Bloomingdale, Illinois Police Department in which he accused Lance and Susan Gates of dealing illegally in narcotics. The letter described in detail a trip that the Gates would take to procure drugs. The letter predicted that: the Gates would travel to Florida separately on specified dates; that Mrs. Gates would drive and Mr. Gates would fly; that Mr. Gates would drive the car back to Illinois; and that the trunk would be loaded with narcotics. The police investigated the tip and corroborated all the allegations, except the presence of narcotics in the trunk.
The police then sought a search warrant for the Gates’ residence and their automobile. The state court judge to whom application was made found that probable cause had been established. However, the Illinois appellate courts reversed saying that the affidavit submitted in support of the search warrant application failed to establish probable cause. The Illinois Supreme Court found that the anonymous letter alone would not provide a basis on the finding that probable cause existed, since it did not meet the Aguilar-Spinelli “two pronged test.”
While the United States Supreme Court indicated that it was inclined to agree that the letter alone was not a sufficient basis for a finding of probable cause, the court found that the corroboration of the informant’s allegations by the police provided the police with reason to act on the informer’s tip.

Id,., 319 Pa.Superior Ct. at 109, 465 A.2d at 1253. In doing so, the Supreme Court held that the two-pronged test was not required and that the police need show only that the “totality of the circumstances” supported a finding of probable cause to search.

The Gates decision indicated that the “totality of the circumstances” standard is flexible and not hypertechnical.

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

Illinois v. Gates, supra, 462 U.S. at —, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

Guided by the Gates decision, we turn our attention to the instant case. The affidavit of probable cause reveals that the affiant state police trooper had been conducting a drug investigation in appellant’s neighborhood for over a month. Through this investigation, the trooper learned that appellant was a local drug trafficker. The trooper also came in contact with an informant who told him that a large drug buy involving appellant was soon to take place. The informant volunteered names of other persons who would be involved in the transaction. On August 11, 1980, the informant indicated to the affiant state trooper that, while in the basement of appellant’s home, he had personally observed large quantities of marijuana and cocaine being bagged. That evening, while the trooper watched, the informant entered appellant’s residence and returned with a marijuana cigarette. Thereafter, the state trooper requested a search warrant.

We note also that in the affidavit of probable cause the trooper expressed his personal belief in the informant’s reliability. This belief was bolstered when various facts supplied by the informant were verified through independent investigation. More importantly, the affidavit of probable cause indicates that the informant admitted that he had purchased marijuana and cocaine from the appellant. These statements were against the informant’s penal interest and thus reinforced the trooper’s belief in the informant’s reliability.

We find that on the basis of the facts set forth in this affidavit, the magistrate could reasonably have believed that contraband would be found in appellant’s residence. Although a more detailed affidavit of probable cause would have been preferable, we recognize that affidavits supporting search warrants normally are prepared “by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 689 (1965). Therefore, they should be interpreted in a “common sense and realistic” fashion rather than in a hypertechnical manner. Ventresca, supra at 108, 85 S.Ct. at 745, 13 L.Ed.2d at 689.

The officer did not rely solely on the informant’s tip in requesting the search warrant. He indicated that he had been conducting an independent investigation in the area for over a month. Also, the officer attempted to confirm the informant’s tip by watching the informant enter appellant’s residence to buy drugs and return with a marijuana cigarette. It should also be noted that the informant supplied the names of those who would be involved in the large drug buy and also stated that he had personally observed drugs in the appellant’s apartment.

Thus, we conclude that the totality of the circumstances as indicated in the affidavit supported a finding of probable cause.

Appellant also contends that the affiant trooper’s failure to state in the affidavit that he conducted a search of the informant before the informant entered appellant’s residence, results in a failure of the affidavit to support a finding of probable cause. We disagree. Again we must look at the “totality of the circumstances.” The trooper had knowledge of appellant’s drug involvement through his own investigation; the informant had related personal observations of drugs in the appellant’s home; and the trooper had expressed a belief in the reliability of the informant. It was unnecessary for the trooper to state in the affidavit whether he conducted a search of the informant prior to his entry into appellant’s residence. The factors mentioned above, together with the other circumstances set forth in the affidavit, assure us that the magistrate had a “substantial basis for concluding that probable cause existed.” Gates, supra, 462 U.S. at —, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

Judgment of sentence affirmed.

      . We need not address appellant’s fourth issue which he states as follows:
      4. If the Court is justified in considering testimonial evidence of such a pre-entry search, can the search warrant be saved by testimony which reveals a cursory, limited pre-entry body search of the informant, which search, could not reasonably be expected to detect the presence of the marijuana allegedly obtained by the informant within the premises to be searched?
      Brief for Appellant at 2. Since we hold that the affidavit itself, independent of the additional testimonial evidence, was sufficient to support a finding of probable cause, we need not discuss the effect of the testimonial evidence.

      . We recognize that the affiant’s personal belief in the informant’s reliability is insufficient, in and of itself, to "provide a factual basis for crediting the report of [the] ... informant.” United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723, 731 (1971). Also see, Commonwealth v. Tatum, 258 Pa.Super. 529, 531-32, 393 A.2d 485, 486 (1978). Nevertheless, as discussed in the body of the opinion, we believe that the affidavit contains other factors that support the reliability of the informant. All of the factors, taken as a whole, indicate that the magistrate properly decided that the affidavit supported a finding of probable cause.

      . Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case. Illinois v. Gates, 462 U.S. 213, —, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527, 545 (1983).


author: MONTGOMERY, Judge:

text:
    473 A.2d 120
    William E. THOMPSON and Ruth Thompson, His Wife, v. ANTHONY CRANE RENTAL, INC., and West Penn Power Company. Appeal of ANTHONY CRANE RENTAL, INC.
    Superior Court of Pennsylvania.
    Argued March 31, 1983.
    Filed Feb. 10, 1984.
    Reargument Denied April 18, 1984.
    Petition for Allowance of Appeal Denied July 27, 1984.

      Seymour A. Sikov, Pittsburgh, for appellant.
    Leonard E. Price, Pittsburgh, for Thompson, appellees.
    Thomas F. Weis, Pittsburgh, for West Penn, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant action was instituted in trespass in the lower court by Plaintiff-Appellees, William E. Thompson and Ruth Thompson, his wife, to recover damages for injuries sustained by Mr. Thompson when the boom of a truck crane owned by Defendant-Appellant, Anthony Crane Rental, Inc., struck high voltage electrical wires oil the premises of Defendant-Appellee, West Penn Power Company. The case proceeded to a trial before a jury and on March 20, 1981, the jury returned a verdict in favor of the Appellees. The verdict was later molded by the lower court to read as follows:

“AND NOW, to-wit, this 30th day of March, 1981, A verdict in favor of West Penn Power Company and a verdict against Anthony Crane Rental, Inc. in the amount of $500,000.00 in the claim of William E. Thompson under § 402A of the Restatement of Torts and in the amount of $490,000.00 in favor of William E. Thompson in the negligence case against Anthony Crane Rental, Inc. Also a verdict for Ruth Thompson in the amount of $150,000.00 in the consortium claim under § 402A of the Restatement of Torts and in the amount of $147,000.00 in the consortium claim in the negligence case. These verdicts shall be construed not to be cumulative and the liability of Anthony Crane Rental, Inc. shall not exceed $500,000.00, in any event, in the claim of William E. Thompson nor $150,-000.00, in any event, in the claim of Ruth Thompson. The verdicts shall be with detention damages in accordance with R.C.P. 238. This remolding supercedes molding by the court of March 20, 1981. The parties shall have 10 days from March 30, 1981 to file appropriate motions in connection with this remolding.”

Appellant Anthony Crane Rental raises numerous allegations of error on this appeal regarding the lower court’s denial of its motions for judgment n.o.v. and for a new trial.

The facts of record show that in July, 1977, the J.L. Smith Plumbing Company, the employer of Appellee William Thompson, was involved in the relocation of water and drainage pipelines on the premises of Appellee West Penn Power Company at the Mitchell Power Station in Washington County, Pennsylvania. A truck crane together with the services of crane operator, Jerry Torek, was hired at a single hourly rate by J.L. Smith Plumbing Company from Appellant Anthony Crane Rental in order to relocate the heavy lengths of pipe that were to be used on this job.

Appellee William Thompson was Smith’s foreman on this job. He testified that on July 18, 1977, the first day the truck crane was on the job, it was being used to move an 800 pound length of pipe when the boom of the crane began to swing back and forth so violently that the front wheels of the crane were lifted off the ground. Mr. Thompson immediately told Mr. Torek to either take the crane off the job or get it repaired. Mr. Thompson further testified that approximately IV2 hours later Mr. Torek returned to Thompson and the crew and told them that this was the last crane available but that he had corrected the problem and the crane would function properly. The next day, the crane was operated without incident although the boom continued to drift a slight distance when first beginning a lift. Mr. Torek was aware of this and assured Mr. Thompson that he could control the lateral movement.

On the morning of July 20, 1977, Mr. Thompson determined that an excavated ditch was too wide to accommodate the wooden planks which he had been using to bridge the ditch for the purpose of laying pipe. The Plaintiff-Appellee then secured permission from West Penn Power to use an old piece of railroad track to bridge the ditch where the pipe was to be laid. At that time, Mr. Thompson was advised by a representative of West Penn that because the work was proceeding near the power lines, it should be assured that the boom of the crane did not come within eight feet of those lines. Mr. Torek then positioned the crane and lowered out-riggers which supported the crane in a stationary manner while it was being used to set the rail into place over the ditch. Mr. Thompson put both of his hands on the rail to steady it and to guide it into position. The record does not clearly indicate who, if anyone, was giving signals to the crane operator, Mr. Torek, during this period of time. After the rail had been lifted and was being moved sideways in order to position it over the ditch, Raymond Lovelidge, an employee of J.L. Smith Plumbing Company, testified that he noticed the boom of the crane was dangerously close to the power lines. Mr. Lovelidge attempted to signal Mr. Torek to stop the movement of the boom. However, the crane did not stop its lateral movement and the boom came into contact with the power lines. Mr. Thompson, with his hands on the rail, suffered severe electrical burns when the electric current passed through his body. This suit seeking damages was eventually filed.

Appellant first contends on this appeal that the lower court erred in refusing to grant its motion for a judgment n.o.v. on the ground that the Appellee, William Thompson, and the crane operator, Mr. Torek, were allegedly co-employees as a matter of law. Our courts have clearly recognized that where an employee is injured by the negligence of another servant of the same employer, the Workmen’s Compensation Act provides the sole remedy available to the injured party. Vogel v. Jones & Laughlin Steel Corporation, 221 Pa.Super. 157, 289 A.2d 158 (1972). However, it is obvious in the instant case that there was a question as to whether the crane operator was in fact a co-employee of Mr. Thompson, due to the fact that Mr. Torek’s services were leased by Mr. Thompson’s employer from the Appellant, together with the crane. Since there is no question that Mr. Thompson could not have been considered an employee of the Appellant, the only issue is whether Mr. Torek could be considered as an employee of J.L. Smith Plumbing Company. The test for determining whether a “borrowing” employer is an employer for workmen’s compensation purposes is whether the employer controlled or had the right to control the borrowed employee, not only as to the work to be done but also with regard to the manner of performing it. See English v. Lehigh County Authority, 286 Pa.Super. 312, 428 A.2d 1343 (1981) and cases cited therein. That case also holds that in deciding whether a party is an employer for the purposes of the application of the Workmen’s Compensation Act, any factual discrepancies are for the trier of fact to resolve, and the question of whether the facts as they are determined to exist constitute an employment relationship is strictly a matter of law.

The record in the instant case shows that the testimony concerning who controlled Mr. Torek’s manner of performing his work was conflicting. For example, although Mr. Torek asserted that he was told where to position his crane in relation to the ditch, Mr. Thompson testified that Mr. Torek made the decision. Thus, while Mr. Torek generally testified that the Appellee had complete control over the manner of work to be done, the Appellee provided testimony tending to show that Mr. Torek selected the specific manner of performing his tasks. The jury, by answer to special interrogatories, found that Mr. Torek was not a fellow employee of Mr. Thompson. The jury had sufficient evidence upon which it could have based this finding and it is therefore clear that the lower court did not err in denying Appellant’s motion for judgment n.o.v. on the claim that the Plaintiff-Appellee was only legally entitled to receive workmen’s compensation because of his co-employee relationship with Mr. Torek. We therefore reject his first claim of error.

The Appellant next contends that the lower court erred in submitting to the jury the Plaintiffs’ claim based upon strict liability grounds, under Section 402A of the Restatement of Torts 2d, which claim was based upon the theory that there was a malfunction in the crane. It is argued that the Plaintiffs allegedly failed to clearly establish an absence of secondary causes for the accident, and that such circumstances precluded any finding of liability under § 402A, based upon the Plaintiff’s malfunction theory.

It is well-established that a plaintiff can recover under § 402A if he proves that a product was defective when delivered to the buyer and that the defect caused the Plaintiff’s injuries. Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975). § 402A standards can be applied to a lessor of a product as well as a seller. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977); Mandel v. Gulf Leasing Corp., 250 Pa.Super. 128, 378 A.2d 487 (1977). Moreover, in such cases, a plaintiff need not actually prove a specific “defect” to prevail; the proof of the occurrence of a malfunction of machinery, in the absence of abnormal use and reasonable secondary causes, is evidence of a defective condition for purposes of § 402A application. MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969). The Plaintiff in this case proceeded in a malfunction theory and the lower court charged the jurors on it. No proof of an actual defect was presented. The Appellant argues that a plaintiff must completely negate all possibility of a secondary cause in such a case. The Appellant cites the decision in Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976) for authority, but apparently has ignored the following excerpt from the Majority Opinion by Judge Price in that case:

“We do not hold that a plaintiff must refute all possible explanations offered by a defendant____ 'It is not necessary that plaintiff prove with mathematical exactness that the accident could only have been caused in one manner to the exclusion of all other possibilities ... but he must eliminate those other causes, if any, as were fairly suggested by the evidence____ And it is the duty of the trial court to determine whether or not this requirement has been met in the first instance before the issue can be submitted to the jury____’” [Citing Cuthbert v. Philadelphia, 417 Pa. 610, 614-15, 209 A.2d 261, 263-64 (1965).] 242 Pa.Super. at 92, 363 A.2d at 1175.

While we find that the Appellant’s position is not valid as to the suggestion that proof of the complete absence of any other causes is required of a plaintiff in a case such as this, we do perceive merit in his suggestion that the court erred in submitting the instant case to a jury on a malfunction theory of strict liability. Our conclusion results from the recognition that the court also found sufficient evidence to present this case to the jury on the Plaintiff’s theory of negligence by the operator. In fact, negligence was specifically found by the jury to have existed, as evidenced by its response to the court’s special interrogatory on the point. It is therefore clear that although the evidence suggested a “defective condition” in the mere occurrence of a malfunction, there was not the requisite absence of evidence of a reasonable secondary cause for the accident to justify submitting the issue of strict liability to the jury on a malfunction theory, where the plaintiff’s only proof of a “defective condition” was the happening of the accident. We fully recognize that in most circumstances, both a strict liability claim and a regular negligence claim can be alleged, proven, and submitted to a jury in a case. See Sherk v. Daisy-Heddon, 285 Pa.Super. 320, 427 A.2d 657 (1981). However, in cases like the instant one, where the plaintiffs strict liability case depends not upon the actual proof of a defect, but only upon the mere occurrence of a malfunction, it is inconsistent to permit him to proceed on the strict liability ground where he also advances a theory of human intervention which purportedly caused the harm. The Plaintiffs own evidence in this case created the existence of a “reasonable secondary cause” for the accident. See Wojciechowski v. Long-Airdox Division of Marmon Group, Inc., 488 F.2d 1111 (3rd Cir.1973), which discusses this type of situation.

Thus, we find that the lower court, in the particular circumstances of the instance case, erred in submitting the Plaintiffs’ strict liability theory to the jurors. However, such error does not mandate a reversal, because the lower court properly submitted the issues of strict liability and regular negligence to the jury in separate special interrogatories. The recommended use of such a procedure was the subject of my Concurring Opinion in Sherk v. Daisy Heddon, supra. The jury’s finding of negligence by the Appellant’s operator, which verdict is supported by sufficient evidence in the record, makes unwarranted the granting of judgment n.o.v. to the Appellant, despite the error in the lower court’s submission of the strict liability issues to the jury. The negligence finding against the Appellant and the damages awarded on that count remain separate and are not disturbed by our rejection of the strict liability verdict. We therefore dismiss the Appellant’s contentions for reversal on such grounds.

The Appellant also maintains that it was error for the lower court to charge the jury on both strict liability and negligence as grounds for recovery by Plaintiffs when the theories were mutually exclusive. Appellant argues that a new trial was mandated as a result of such instructions. We must disagree. While we have explained that the strict liability issue, based upon the “malfunction” theory, should not have been presented to the jurors under the particular facts of this case, it is clear that appropriate steps were followed by the lower court to avoid any confusion on the part of the jurors in distinguishing between the strict liability and negligence issues. The court’s instructions clearly and separately explained the two theories. The avoidance of confusion was further enhanced by the court’s submission of special interrogatories, which caused the jurors to separate their consideration of the two issues. Thus, one interrogatory questioned whether the crane was leased in a defective condition, while a separate interrogatory sought a finding as to whether Mr. Torek had operated the crane in a negligent manner. In light of these circumstances, we cannot conclude that the court’s instructions on both theories of recovery created grounds for a new trial.

We next turn to the Appellant’s contention that a new trial was required because the evidence purportedly established beyond doubt that Appellee West Penn Power Company breached the high duty of care it owed Mr. Thompson. In support of this argument, the Appellant points out the high standard of care required in our Commonwealth of a supplier of electric current [citing Densler v. Metropolitan Edison Company, 235 Pa.Super. 585, 345 A.2d 758 (1975)], and asserts that the utility should have taken certain steps to either denergize or insulate the wires near the ditch. It is maintained that the failure of West Penn to undertake such efforts required the court to declare it negligent in this case as a matter of law. In examining this issue, we note that the Appellant raises no claim of error in the lower court’s admission or exclusion of evidence concerning the electricity supplier, nor does Appellant raise the claim that the court erred in charging the jury as to grounds for holding the utility responsible for the harm which befell Mr. Thompson. We also cannot ignore the evidence presented by West Penn which negated a finding of negligence on its part. The utility, for instance, presented testimony that the type of temporary insulating suggested by the Appellant would have been insufficient to prevent direct contact between the crane and. the charged electric wire iri view of the degree of force with which the crane struck the wire. Also, there was testimony to the effect that the boom, which was able to “telescope” in length, was not expected either to be lengthened to a degree or operated in a manner which would make it possible for it to touch the wire. That testimony, as well as other evidence, would have made it improper for the trial judge to remove the question of the power company’s negligence from the jury. Further, the same evidence justified the jury’s finding that West Penn Power Company was not negligent, even under the high standard of care which was applicable in this case. We therefore reject the Appellant’s contention that a new trial was necessary on that point.

The next argument offered by the Appellant is that it should have been granted a new trial because of emotional outbursts by Mrs. Thompson. There is no question that the wife-Plaintiff became distraught and was crying and sobbing during the opening statement by Plaintiffs’ counsel. At the court’s direction, she left the courtroom, but her conduct was repeated in the hallway outside of the courtroom, apparently to the extent that the jurors became aware of it. No citation of authority is necessary to support the statement that a lower court judge in our Commonwealth is vested with very broad authority in the conduct of a trial, and that his grant or denial of a mistrial or new trial on grounds of improper or inflammatory conduct or comments will not be disturbed in the absence of a manifest abuse of discretion. The trial judge in the instant case found no prejudice to the Appellant arising from Mrs. Thompson’s behavior. The record showed that the conduct in issue all took place only on the first day of a trial which lasted for several days, featured the testimony of approximately sixteen witnesses, and produced a transcript of over 900 pages. The judge admonished the jurors not to be influenced by sympathy or prejudice. In discussing the jury instructions, the Appellants’ counsel agreed with the trial judge’s suggestion that no comment should be made to the jury in the charge regarding Mrs. Thompson’s conduct. In light of all of these facts and our own examination of the record, we do not find an abuse of discretion by the trial judge in his denial of a new trial based upon the allegedly inflammatory conduct of Mrs. Thompson. Compare Auerbach v. Philadelphia Transportation Co., 421 Pa. 594, 221 A.2d 163 (1966).

Finally, we consider the claim by the Appellant that the jury verdict of $500,000 for Mr. Thompson and $150,000 to Mrs. Thompson for loss of consortium was excessive to an extent warranting a new trial. In evaluating such an argument, it is clear that each case is to be decided according to its unique facts and circumstances. Fretts v. Pavetti, 282 Pa.Super. 166, 422 A.2d 881 (1980). Moreover, the granting or denial of a new trial on this ground is within the discretion of the trial court and will not be reversed in the absence of a clear abuse of discretion. Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977). Our Court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979).

Being mindful of these guidelines, we can find no grounds for the grant of a new trial based upon the verdicts rendered in the instant case. As the lower court noted in its opinion, there is no doubt that Mr. Thompson was severely injured, and that his injury affected his ability to work and live a normal life. He presented compelling testimony as to the severe negative effects the accident had upon his ability to work, his contribution to his family’s comfort and enjoyment, to his sexual life and other activities. He and his daughter testified to the significant disruption his condition caused in his marriage. Evidence of substantial future earnings loss was presented by his counsel. In light of this record, we can perceive no abuse of discretion in the lower court’s denial of a new trial on the ground of an excessive verdict.

As to the verdict, one further problem requires our attention. The lower court molded the verdict to indicate that the verdict on the § 402A claim was $500,000 to Mr. Thompson and $150,000 to his wife, while the verdicts on the negligence counts were reduced to $490,000 for the husband and $147,000 for the wife. This letter reduction was the result of the jurys’ finding on the comparative negligence aspects of the negligence claim, wherein it found 98% of the causal negligence was attributable to the Appellant. In view of our conclusion that the § 402A issue should not have been submitted to the jury, the verdicts based upon it cannot stand. The judgment based on the verdict must therefore be opened and the lower court is directed to re-mold the verdict to reflect only the lesser amounts due on the negligence counts.

The judgment of the lower court is reversed to the limited extent provided herein to permit a re-molding of the verdict. In all other respects the judgment is hereby affirmed.

      . Act of June 2, 1915, P.L. 736, art. I, § 101, et seq., 77 P.S. § 1, et seq., as amended.

      . Section 402A, which was adopted into our law by the Supreme Court in the case of Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), provides:
      "(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property, if
      (a) The seller is engaged in the business of selling such a product, and
      (b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) The seller has exercised all possible care in the preparation and sale of his product, and
      (b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.”

      . We find no merit in the Appellant’s contention that the evidence was insufficient as a matter of law to support the Plaintiffs’ claim of negligence by the crane operator. There was abundant testimony to show that Mr. Torek did not act with due care in causing the crane boom to make contact with the wires, which hung approximately 17 feet from the centerline of the ditch, and to also show that he moved the crane too quickly and without the desired amount of control of its movements. The jury obviously credited such testimony in determining that the operator was negligent.

      . In view of this disposition, we find it unnecessary to consider the Appellant’s argument that the lower court should have granted judgment n.o.v. as to the strict liability claim because the evidence allegedly established that Mr. Thompson voluntarily assumed the risk of injury. See Ferraro v. Ford Motor Company, 423 Pa. 324, 223 A.2d 746 (1966), where the Court recognized assumption of the risk as a defense in a § 402A case.

      . The lower court construed the verdicts to be cumulative, so that it fixed the maximum liability of the Appellant at $500,000 on Mr. Thompson’s claim and $150,000 on Mrs. Thompson’s claim.