author: JOHNSON, Judge: CIRILLO, Judge,

text:
    478 A.2d 822
    COMMONWEALTH of Pennsylvania v. Daniel GRAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1983.
    Filed June 1, 1984.

      Richard Utman, Jr., Assistant Public Defender, Doylestown, for appellant.
    Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before SPAETH, P.J., and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant was convicted by a jury of burglary, criminal trespass and conspiracy on February 24, 1982 and sentenced under the Youthful Offender Act to an indeterminate term, not to exceed 30 months, on both the burglary and conspiracy counts, as well as to pay $100 in restitution. This appeal followed.

The record indicates that on November 5, 1981, at approximately 11:00 p.m. a security guard at Longhorne Motors heard the sound of glass breaking in the area of the garage. He then went to investigate, and as he approached that area he observed a person on the side of the building. At that time the automatic garage door started to open. The door could only be opened from inside the garage door and the garage itself had been locked for the evening.

When the guard approached the garage he noticed a Corvette parked inside the garage. The owner of Longhorne Motors testified that although the Corvette was kept outside during the daytime, it was locked up in the garage at night because of its value (approximately $10,000). The guard further observed a man, later identified as appellant, inside the garage, crouched behind the Corvette. The guard next entered the garage, announced he was armed and asked appellant to come out of the garage. Appellant then started to run and the guard fired five shots into the air. Appellant exited through a window in the rear of the building. The window was broken and the iron bars fronting it were separated.

Blood was discovered on the broken glass and on the outside front of the Corvette. When appellant was apprehended he had a deep laceration on his left forearm.

Dawn Landi, appellant’s girlfriend, testified for the Commonwealth that she, appellant, and Edmund Gordon, a co-defendant, were together on the night in question. The three had been out at a restaurant and were on their way back to Gordon’s home in Levittown when Gordon told Landi, who was driving the car, to stop on a side road. Gordon stated that he wished to show appellant a car he wanted to buy (the Corvette). Gordon and appellant then left the vehicle while Landi remained behind in the car with the lights off and the engine running. About 5 or 10 minutes later Gordon returned to the car and told Landi to drive straight ahead. Landi did not see appellant again that evening.

Landi also stated that appellant had a sword in the car that evening. That sword was subsequently found outside the garage near the point of entry.

Appellant raises four issues on appeal: (1) was appellant denied a fair trial where the district attorney was permitted to ask, on voir dire, a question as to whether any potential jurors had ever been convicted of a felony or misdemeanor, (2) whether permitting the Commonwealth to amend the information at the close of the Commonwealth’s presentation of its case was an abuse of discretion, (3) whether defense counsel was ineffective for eliciting the criminal conviction of defense witness Gordon on direct examination and whether the trial court abused its discretion in thereafter eliciting the nature of the conviction from the witness, and (4) whether the evidence concerning intent to commit a theft was sufficient.

As to issues (1) and (4), we believe the trial court’s opinion adequately addresses the merits of both and, after a review of the record, agree that these issues are without merit.

Appellant’s second issue alleges that the trial court erred in permitting the Commonwealth to amend the information charging criminal trespass, section 3503(a)(l)(i), to charge section (a)(l)(ii), after presentation of their case-in-chief. The relevant statutory language sets forth:

§ 3503. Criminal trespass
(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
(1) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or
(ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.
(2) An offense under paragraph (l)(i) is a felony of the third degree, and an offense under paragraph (l)(ii) is a felony of the second degree.

Specifically, appellant argues that he was prejudiced by the amendment (1) because of his lack of notice of the prosecutor’s intent to prosecute him for forcible entry, rather than surreptitious or deceptive entry, as originally charged and (2) because the amendment raised the grade of the crime from a third to a second degree felony, subjecting him to a more severe penalty.

Rule 229, Pa.R.Crim.P. states:
Rule 229. Amendment of Information
The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

As stated in Commonwealth v. Stanley, 265 Pa.Super. 194, 212, 401 A.2d 1166, 1175 (1979), aff'd 498 Pa. 326, 446 A.2d 583 (1982):

The purpose of Rule 229 is to insure that a defendant is fully appraised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. In effecting this purpose, the courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted, (footnotes and citations omitted)

We find the instant facts similar to those in Commonwealth v. Neal, 274 Pa.Super. 225, 418 A.2d 378 (1980), where the indictment charged the defendant with robbery, 18 Pa.C.S. § 3701(a)(l)(iii) and where the trial judge subse-. quently charged the jury on robbery, Section 3701(a)(l)(ii). The elements of subsections (a)(l)(iii) and (a)(1)(h) are different:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; or
(iii) commits or threatens immediately to commit any felony of the first or second degree.

The Superior Court held that it was error to allow that amendment, as it involved a substantive change of the elements of the crime, to defendant’s prejudice. We note also that for purposes of amending an information, a substantive amendment is one that changes the nature or grade of the offense charged. Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979). Clearly, the grade of the offense in the instant case was changed, as were the elements required to prove guilt.

While we are aware that certain cases have held amendments proper where apparent substantive amendments were granted, we find those cases distinguishable. See Commonwealth v. Jones, 319 Pa.Super. 570, 466 A.2d 691 (1983) (change in grade of criminal mischief permissible; amendment made prior to trial); Commonwealth v. Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982) (adding criminal charges to information permissible on day of trial where no showing of prejudice, no request for continuance and defendant held for court on said charge at preliminary hearing).

As we find the amendment in the instant case to have been improper, we vacate judgment of sentence and reverse the conviction for criminal trespass.

Appellant’s third issue alleges ineffectiveness of counsel for eliciting from defense witness Gordon his criminal conviction on direct examination. Our examination of a claim of ineffectiveness of counsel involves a two-step analysis:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.

Commonwealth v. Golson, 310 Pa.Super. 532, 535, 456 A.2d 1063, 1065 (1983).

Appellant alleges that defense counsel was ineffective for eliciting the conviction of a defense witness. The record indicates that defense counsel, on direct examination of defense witness Gordon, asked him if he had been convicted of a crime, to which Gordon answered affirmatively. Defense counsel then stated that she had no further questions. A sidebar conference was then held out of the jury’s presence, where it was determined that defense counsel did not know for a fact either that the witness had been convicted of a crime or the nature of the crime and that the prosecutor had only a “rap sheet” on the witness, which did not indicate any dispositions. The court then questioned the witness as to the nature of the conviction over defense counsel’s objection, which was determined to be burglary.

On subsequent cross-examination by the prosecutor before the jury, the witness revealed the nature of his conviction and the court immediately gave an instruction to the jury regarding the limited consideration to be given the conviction for purposes of impeachment. N.T. 180-1

A witness may be impeáched by showing a prior conviction only if the crime involved dishonesty or false statement. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980). Burglary is such a crime. Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374 (1980), aff'd, 501 Pa. 393, 461 A.2d 794 (1983). On the other hand, acts not resulting in a conviction are not admissible to impeach a witness’s credibility. Commonwealth v. Burton, supra. Although it was subsequently determined that the witness’s conviction, as brought out on direct examination, was of the type which could be used for impeachment purposes, our inquiry does not end there.

Appellant argues that defense counsel was ineffective because she did not know whether Gordon had been convicted of a crime, nor the nature of the crime, at the time of her question. Appellant further alleges that defense counsel was also informed prior to questioning Gordon, that the prosecutor had no proof of any conviction.

The record does not include the transcription of all side bar discussions on this matter. We do note that immediately prior to opening arguments at trial, the following transpired:

MS. WEBSTER [Defense Counsel]: I would like to put on the record, if I may, I didn’t bring forward a motion in limine. It was my understanding it wasn’t necessary.
THE COURT: I don’t know what the status of this thing is. It is my understanding the Commonwealth does not plan to refer to a prior record.
MR. REICHLEY [Prosecutor]: That’s correct.
N.T. pp. 16-17.

It is unclear whose prior record is referred to by this dialogue, whether that of defense witness Gordon, appellant, or some other person. If the reference is to Gordon’s prior record, then defense counsel, and the trial court, were on notice that the Commonwealth was not intending on using prior record to impeach.

The record also reveals that at the close of the Commonwealth’s case-in-chief, the following exchange occurred at sidebar:

MS. WEBSTER: Yes, I do have another motion. One of the witnesses that will testify that I have subpoenaed I believe has a prior criminal record. He will be a Defense witness. He is also the co-defendant in this case. I would move that the Commonwealth be prohibited to making any reference or asking any questions concerning his prior criminal record.
THE COURT: On what authority?
MS. WEBSTER: That it would be highly prejudicial, Your Honor.
(Further argument off the record.)
THE COURT: It seems to me that the cases which protect the Defendant don’t protect Defense witnesses. Therefore, the Defense witness, I will allow it if in fact it comports with what the law is.
(Further argument off the record.)
THE COURT: The Court has already ruled should the Defendant take the witness stand, he would be protected under Bighum and rules your argument has absolutely no merit at this point.
N.T. pp. 121-22 (emphasis added)

This exchange indicates that defense counsel may have been uncertain as to whether Gordon had a prior record. Also, defense counsel’s authority for requesting that the prior record not be referred to by the Commonwealth (as being highly prejudicial) is clearly an inadequate basis, without more. If, during the off the record arguments, the prosecutor informed defense counsel that it had only a “rap sheet” with no dispositions, there would appear to be no reasonable basis for defense counsel eliciting the witness’s prior conviction, knowing the prosecutor had no proof of a conviction. We note that in Commonwealth v. Reese, 475 Pa. 120, 379 A.2d 1312 (1977), it was held to be reversible error for the prosecutor to impeach defense witness on the basis of a prior arrest which did not lead to a conviction. See also Commonwealth v. Brabham, 268 Pa.Super. 35, 407 A.2d 424 (1979) (reversible error for prosecutor to impeach witness by evidence of guilty pleas when it was unclear whether defendant pled guilty to one or three charges).

As stated in Commonwealth v. Zapata, 455 Pa. 205, 208, 314 A.2d 299, 301 (1974): .

Even where its use is properly limited to impeaching credibility, the introduction of a defendant’s criminal record possesses a potential for severe prejudicial impact on a jury. Thus, there would rarely be a time when the introduction of such evidence would produce some result favorable to the defendant. Nevertheless, there may be situations where a defense attorney is substantially certain that the prosecution will utilize a defendant’s prior convictions if he decides to testify. In those situations, it may be reasonable trial strategy for the defense counsel to bring those convictions out on direct examination in order to minimize their impact, thus muting the prosecution’s thunder. Before doing so, however, counsel should be convinced that such evidence is available to the prosecution, i. e., that the convictions would properly be admissible to impeach the defendant’s credibility. In the absence of such certainty, counsel would be acting “ineffectively” if he introduced an aspect of his client’s criminal record which was, in fact, not competent evidence. Thus, our present inquiry must focus on whether counsel for the appellant justifiably believed that the record of these convictions was admissible.

We believe the same considerations apply to defense witnesses, other than the accused. See Commonwealth v. Pilosky, 239 Pa.Super. 233, 362 A.2d 253 (1976) (applying rules regarding impeachment of defendants by use of convictions for crimes of dishonesty or false statements to defense witnesses).

Clearly, if defense counsel did not know for a fact whether Gordon had any prior criminal convictions for crimes which could be used to impeach his credibility and if defense counsel had been informed that the prosecutor had no such proof, questioning Gordon as to whether he had ever been convicted was error. In such circumstances, there could be no reasonable basis aimed at promoting her client’s interests by impeaching Gordon by merely asking him whether he has ever been convicted of any crime, without eliciting the nature of the crime. This is especially true in the instant case where Gordon was the only defense witness presenting substantive testimony.

We also note that appellant’s counsel on appeal is the same counsel as at trial. In such a situation, where ineffectiveness is alleged and said ineffectiveness cannot be conclusively determined from the record, a remand for appointment of new counsel and an evidentiary hearing is the proper procedure. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982). This is just such a case.

The conviction and judgment of sentence on the criminal trespass charge is vacated. We also vacate the remaining judgment of sentence and remand to the trial court for appointment of new counsel to appellant, other than from the public defender’s office and for an evidentiary hearing. If it is determined that defense counsel was ineffective, a new trial shall be ordered. If counsel is determined not to have been ineffective, judgment of sentence shall be reinstated on all but the criminal trespass conviction.

Jurisdiction is not retained.

CIRILLO, J., filed a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

The Supreme Court of Pennsylvania in Commonwealth v. Badger, 482 Pa. 240, 244, 393 A.2d 642, 644 (1978) has formulated the test for determining effectiveness of counsel. The court stated that:

"... a finding of ineffectiveness [can] never be made unless [it can be] concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.” Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 605, n. 8, 235 A.2d 353, n. 8 ... the alternatives must be examined only as a means of determining whether the course chosen had some reasonable basis.

Appellant has not shown that counsel’s strategy was devoid of reason. Thus, further evidentiary proceedings are not mandated.

      . 18 Pa.C.S. § 3502.

      . Id. § 3503(a)(1)(ii).

      . Id. § 903.

      . Act of April 28, 1887, P.L. 63, as amended, 61 P.S. §§ 483-486.

      . Gordon was not tried jointly with appellant.

      . There is no dispute among the parties nor the trial court as to the request for amendment at the close of the Commonwealth’s case and the fact that appellant objected to the amendment. We note our disapproval of the fact that the side bar conference where the amendment request, objection, and grant occurred was not recorded.

      . In response to the court’s question as to why defense counsel asked the question, if she did not know what the conviction was for, defense counsel stated that the defense witness was currently incarcerated. (N.T. 159).

      . Appellant did not testify. The only other defense witnesses were investigators from the public defender’s office.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    478 A.2d 828
    John M. POLUMBO, Administrator of the Estate of Charles G. Leshko, Sr. v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Company v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. (Two Cases) Appeal of Richard NELSON and Safeway Truck Co., a/k/a Safeway Trucking Company. (Six Cases) Ann Louise LESHKO v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Co. v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. v. John M. POLUMBO, Administrator of the Estate of Charles G. Leshko, Sr. George SAGAN and Evelyn Sagan, his wife, v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Company v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. Ann Louise LESHKO v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Co. v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP. v. John M. POLUMBO, Administrator of the Estate of Charles G. Leshko, Sr. George SAGAN and Evelyn Sagan, his wife v. Angelo DESTEFANO, Joseph Cavalleri, Richard Nelson and Safeway Truck Co., a/k/a Safeway Trucking Company v. CADILLAC MOTOR CAR DIVISION OF GENERAL MOTORS CORP., and John M. Polumbo, Administrator of the Estate of Charles G. Leshko, Sr.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1983.
    Filed June 1, 1984.
    Reargument Denied Aug. 14, 1984.

      James P. McKenna, Jr., Pittsburgh, for appellants.
    Richard G. Fine, Scranton, for Destefano, appellee (at Nos. 1073 and 2631).
    Thomas J. Sharkey and Joseph J. Ustynoski, Hazleton, for Leshko, appellee (at Nos. 1074 and 2632).
    Joseph J. Ustynoski, Hazleton, for Sagan, appellee (at Nos. 1075 and 2633).
    Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the en banc Court of Common Pleas of Luzerne County, which was reduced to a judgment on August 9, 1982, denying defendants-appellants’ (Richard Nelson and Safeway Truck Company’s) motions for a judgment non obstante veredicto or a new trial. We reverse.

The measuring stick against which the grant or denial of a judgment n.o.v. is to be assessed has been stated to be the following:

In reviewing the trial court’s denial of appellant’s motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, must be viewed in the light most favorable to the verdict winners. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Kreso vich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970); Cerino v. Philadelphia, 435 Pa. 355, 257 A.2d 571 (1969). All conflicts in the evidence, moreover, must be resolved in favor of the prevailing party. Moyer v. Ford Motor Co., 205 Pa.Super. 384, 209 A.2d 43 (1965); Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970); Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962). However, where the evidence is insufficient to sustain a verdict against the losing party, a court will enter judgment n.o.v. in favor of the appellant despite a verdict to the contrary. Kolb v. Hess, 227 Pa.Super. 603, 323 A.2d 217 (1974); Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).

Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 388-89, 421 A.2d 251, 254 (1980). Accord McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982), petition for allowance of appeal denied October 29, 1982 [No. 447 E.D. Allocatur Docket 1982].

Viewing the evidence in a light most favorable to the non-moving party plaintiffs-appellees, the following appears of record: At approximately 6:00 p.m. on the 5th of June, 1975, Angelo DeStefano was driving a conventional tractor (meaning, the engine was out in front of the cab) pulling an empty 33-foot, flatbed trailer in a westerly direction on Interstate 80. It was not dark, and DeStefano was moving at about 45 m.p.h., on a 55 m.p.h. posted highway, because the road surface was wet. (N.T. 391)

DeStefano had just come off a bridge and could see, some 250 feet ahead, that a Cadillac had stopped on the berm of the road, just past the exit for White Haven, Pennsylvania. He slowed and, with the Cadillac about 100 feet away, applied his brakes. When he did so, however, the tractor trailer started to jackknife. (N.T. 394) At this point, he looked in his left rear mirror and saw that another tractor trailer, later determined to be driven by Richard Nelson and leased to Safeway Truck Company, “was coming up on” him. (N.T. 420) This prevented DeStefano from moving into the left lane, so he started to pull off to the right. As he attempted to do so, he struck the rear of the Cadillac. This impact caused the Cadillac to veer to the left, and, in a counter clockwise motion, back onto the highway surface with the front end facing south. (N.T. 131 & 132) Before DeStefano was able to get off the highway and stop by driving up an embankment to his right, the Cadillac traveled “say sixty, seventy feet.” (N.T. 189) Thereafter, the Cadillac crossed into the southerly portion of the westbound lane of Interstate 80 at an angle and was struck by Nelson’s tractor trailer while in the passing lane. The two vehicles traveled for some 400 or 500 feet before coming to rest in a ditch on the right hand side of the westbound lane of Interstate 80. (N.T. 138 & 190)

The driver of the Cadillac, Charles Leshko, was killed and the two passengers, Mrs. Ann Louise Leshko in the front seat and a Mr. George Sagan in the back, survived.

The case proceeded to trial and a jury found the defendants, which included Richard Nelson and Safeway Truck Company, negligent. Post-verdict motions were denied and judgment was entered for the plaintiffs and against the defendants-appellants.

On appeal, appellants present three issues for our review, but, because of the result reached instantly, we need only respond to appellants’ complaint that the evidence (or, more appropriately, the lack thereof) warranted the entry of a judgment n.o.v.

Appellants urge that the testimony on the question of negligence was so inadequate that it should not have been submitted to the jury for resolution. Rather, they contend that Nelson, faced with a sudden emergency not of his own making, could not have done anything to avoid the accident.

In response, appellees argue that “[a] review of the record shows that Nelson’s position is untenable and not supported by the credible evidence.” In particular, they direct our attention to the inconsistency in Nelson’s deposition, trial and appellate accounting as to when he first saw the Leshko Cadillac.

Before examining the allegations of both sides, we find it prudent to set forth some of the precepts that have emerged in regard to the sudden emergency doctrine, and, then, see how they affect the case at bar.

To begin with:

The purpose of the sudden emergency doctrine is to relieve a victim from the sometimes stringent reasonable man standard when he is confronted with an occurrence that permits no opportunity to apprehend the situation and act accordingly. The doctrine is applied most often in automobile cases in which a driver is confronted with an occurrence requiring some form of immediate, evasive action.

Carpenter v. Penn Central Transportation Co., 269 Pa. Super. 9, 16, 409 A.2d 37, 40 (1979). Further, the presence of a sudden emergency negates the applicability of the “assured clear distance” rule; viz.:

Originally a common law principle, the “assured clear distance ahead” rule is a part of The Vehicle Code, Act of May 1, 1929, P.L. 905, § 1002, as amended, 75 P.S. § 1002 (1971) [now recodified in essentially the same format at 75 Pa.C.S.A. § 3361], which provides, inter alia, that “no person shall drive any vehicle, upon a highway ... at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.” The assured clear distance ahead rule has been held to require that a driver operate his vehicle in such a manner that he can always stop within the distance he can clearly see. Otherwise stated, the rule requires that such control be maintained as will enable a driver to stop and avoid obstructions that fall within his vision.
It is apparent that this distance, the range of a driver’s vision, may vary according to the visibility at the time and other attendant circumstances[.]
******
When an obstacle is encountered by a driver which is within his line of travel, the distance to the obstacle becomes the time and distance limitation at the moment that the obstacle comes into view. The “driver must carefully watch so that he can see, if this is reasonably possible, any obstacle in his way, and can stop before a collision with it.”
[W]here a sudden and clear emergency arises inside the range of the previously assured clear distance, the rule has been held inapplicable. A sudden and clear emergency may be a dust cloud, a moving object, a sudden blocking of the road, the sudden swerving of other vehicles or the aforementioned blinding lights. (Citations omitted) (Emphasis added in part)

Unangst v. Whitehouse, 235 Pa.Super. 458, 464, 344 A.2d 695, 698-699 (1975).

Thus, based on the preceding, we need to determine if, initially, a sudden emergency was proven by Nelson, and, then, if the facts giving rise to the emergency “leave no room for doubt, [so that] the issue becomes a matter of law for the judge.” (Citation omitted) Rohay v. Breyak, 409 Pa. 568, 571 n. 1, 186 A.2d 913, 915 n. 1 (1963). On this point, we find the case of Moore v. Meyer & Power Co., 347 Pa. 152, 31 A.2d 721 (1943) instructive.

In Moore, a truck belonging to Meyer & Power Company was being driven south on Route 68, a two-lane highway. The appellee was a passenger in a Ford sedan owned and operated by a Mr. Young, which was traveling south on the same roadway. At a distance of about 200 feet, both drivers observed each other. Young, mistakenly believing that the oncoming Meyer truck had insufficient room to pass, edged his vehicle to the right. When he did so, the wheels came in contact with snow and slush on the berm,

the sedan suddenly swerved and skidded across the highway at right angles to and directly in front of the on-coming truck which struck it broadside. Whether the sedan had come to a stop or was still in motion at the time of the collision does not appear and the appellee’s evidence does not establish the distance between the two vehicles when the skid began.

347 Pa. at 153, 31 A.2d at 722.

The truck driver’s version placed the sedan 50 feet away from him when it skidded into his path and, despite his best efforts to avoid the collision, culminated in an accident.

The Moore Court, in the course of holding that the jury was presented with insufficient evidence from which to conclude that there was an opportunity for the truck driver to act after the appearance of danger, made some observations that are germane to the case at bar; namely:

It is true, as said in Nark v. Horton Motor Lines, Inc., 331 Pa. 550, 553, 1 A.2d 655, 656, that “No man has a right to continue his car or truck in motion if such motion makes an injury to another car or to any person inevitable or reasonably probable.” But the evidence adduced by appellee in the present case renders this rule inapplicable. Not only does the evidence fail to disclose any estimate of the period elapsing between the time the sedan swung to the left and the impact, but appellee’s own evidence affirmatively establishes that the whole series of events culminating in the collision “happened like a flash.” Similarly, Young, driver of the automobile and the only other witness for appellee as to how the accident happened, stated the impact “happened so quick ” after the sedan started to skid that he could not say whether the automobile had come to a stop or was still in motion at the time of impact, and admitted his inability to give any estimate whatever of the time “that passed between the time [he] first saw the truck coming toward [him] and the time [he] landed on the other side of the road. ” Far from showing a situation within the rule of the Nark case, the evidence brings this case squarely within the rule that negligence will not be inferred from a failure to perform a duty so suddenly and unexpectedly arising that there was no opportunity to apprehend the situation and act according to the exigency. As said in Polonofsky v. Dobrosky, 313 Pa. 73, 76, 169 A. 93, 94: “When one finds himself in a position of danger which is not the result of his negligence he is not responsible if he makes a mistake in judgment in getting out. An honest exercise of judgment is all that is required of him even if he could have done better had he had time to deliberate.” See also, Mulheirn v. Brown, 322 Pa. 171, 176, 185 A. 304; Sudol v. Gorga, 346 Pa. 463, 467, 31 A.2d 119. (Emphasis added)

347 Pa. at 154, 31 A.2d at 722.

Instantly, as in Moore, the estimation of the amount of time that elapsed between the initial impact of the Cadillac with DeStefano’s tractor trailer and the contact with Nelson’s vehicle is couched in terms of: “just a matter of a second or two;” “it just happened ... quickly;” within a “split second;” “instantaneously;” and “just bang.” These expressions of time-lapse are devoid of any indicia offering Nelson an opportunity to reflect as to what course of action he should have taken, other than that which he did pursue. This is substantiated by a close scrutiny of the proceedings.

At trial, DeStefano testified that he could not avoid the accident by moving out to the left, passing lane because he saw “another truck coming down” on him. (N.T. 77, 420 & 435) This would have been Nelson, who was “approximately forty feet” baek and in the “passing lane” when DeStefano tried to take some evasive action. (N.T. 79, 97-98, 108 & 393) Further, although DeStefano never saw Nelson’s truck actually strike the Cadillac before he ran off to the right, grassy section of Interstate 80 (N.T. 401, 433-435), he did remark on the options available to Nelson by saying: “... when the car was coming across southwardly, that [second] tractor trailer had nowhere to go, neither.” (N.T. 82)

The passenger in the rear seat of the Cadillac (George Sagan), albeit not able to recollect how far the vehicle traveled between the two impacts, did answer to the question, "... how much time elapsed from the time [the Cadillac] was struck by Mr. DeStefano’s tractor trailer and the time that the second impact occurred?” “Just a matter of a second or two, just that quick.” (N.T. 143)

Even the plaintiffs’ witness, James Connor, presented testimony favorable to Nelson on this issue.

James Connor was on the off-ramp of the White Haven exit when he noticed the Leshko Cadillac “sliding sideways ----across the lanes” and getting hit by Nelson’s truck. (N.T. 177 & 178) The witness estimated that the Cadillac, before crossing into the southerly portion of the westbound lane of Interstate 80, after being struck by the DeStefano truek, traveled a distance of “say sixty, seventy feet.” (N.T. 189) However, the witness was careful to note that he only observed the second collision, between Nelson and the Cadillac. (N.T. 179) As he recalled it, he saw the Cadillac on the berm of the road while he was driving on the off-ramp of Exit 40 (White Haven). He took his eyes off the Cadillac to see where he was driving, and, as he came around the ramp, he saw the DeStefano tractor trailer on the grass and “also at that second or split second later, [he] saw the Cadillac sliding sideways.” (N.T. 203) “It just happened that quickly, you know.” (N.T. 179)

When counsel for the appellants asked Connor, “What was the time interval from the time that the Cadillac entered the side of the roadway until the impact with the second tractor trailer?” the following exchange ensued:

A Just bang.
Q A split second?
A Just a matter of a second and it was done, you know.
(N.T. 223)

Of even more interest is this impartial witness’ responses to another series of questions posed by the same attorney, to-wit:

Q But when you saw him [Nelson], when you saw him appear after this Cadillac shot across the highway as you have described, did he have any ability to do anything to avoid that collision?
A Sir, from the time I saw him, no.
Q He had nothing — he could have done nothing?
A Before that, I don’t know what he could do before that. He hit him (witness indicated by clapping hands.)
Q That was almost instantaneously?
A Yes.
(N.T. 206)

As for the version of the accident proffered by Nelson, the appellees rely heavily upon the alleged inconsistencies present in his deposition, trial testimony and accounting given to an investigating state trooper on the scene to discount our invading the province of the jury, whose function it was to resolve what disparity there was in the testimony.

Appellees excerpt that portion of Nelson’s deposition where he states that the first time he observed the Leshko Cadillac “it was ... pointed in a westerly direction ... in the traveling lane[.]” (Appellees’ Brief at 4) They then go on to reproduce Trooper Barclay’s accounting that he (Nelson) “was in the traveling lane behind the DeStefano vehicle when the DeStefano vehicle began to jack-knife[.]” Id. at 5. Lastly, the appellees ask us to examine that part of the trial testimony which reveals that Nelson, driving a cab-over tractor trailer (which means the front bumper of the tractor is even with the windshield and the driver sits on the engine), was parallel with DeStefano’s trailer (the front portion) when it jackknifed. He then saw the Cadillac, heard a bang and observed the Cadillac in the driving lane “c[o]me around [in] front of [him] and [he] hit it.” Id. at 7.

The evidence is not as cryptic as the appellees would have us believe, nor is it so fraught with inconsistencies that by granting a judgment n.o.v. we would be invading the bailiwick of the jury on factual matters vis-a-vis legal ones. Bohay v. Breyak, supra. In other words, although Nelson’s trial testimony and the version of the accident he gave to Trooper Barclay, on the question of his exact location on Interstate 80 at the moment DeStefano jackknifed, are not mirror images of each other, the record in toto reflects a pattern of consistency on the crucial issues of the existence of a sudden emergency, not of Nelson’s own making, and the absence of any appreciable time which would have afforded Nelson the opportunity to react to (or extricate himself from) a perilous situation thrust upon him within the span of “a second.” The testimony of those witnesses who were able to estimate the time span within which the accident occurred — the Cadillac’s first contact with DeStefano and second impact with Nelson — was uniform on this subject.

The Nelson tractor trailer was traveling at a speed of 47-48 m.p.h. when DeStefano jackknifed. The sequence of events that followed, which, it must be remembered transpired over a matter of a second or two, consisted of Nelson hearing a “bang” and seeing the front end of the Cadillac in the westbound curb lane for the first time. At this moment, Nelson was in the passing lane when the Cadillac suddenly turned at a right angle into his lane of travel before it was struck on the driver’s door and pushed some 400-500 feet down the highway.

We believe that the jury was presented with insufficient evidence from which it could rightly find that there was an opportunity to act after the appearance of danger. See Moore v. Meyer & Power Co., supra. Because Nelson had but a fleeting glance to judge what to do when he first saw the Cadillac in his path, we believe that the evidence was insufficient for a basis of a finding of negligence. See Anderson v. Perta, 138 Pa.Super. 321, 10 A.2d 898 (1940).

While the driver of an automobile should be on his guard to avoid collision, if there arises a situation, unusual and not likely to be anticipated, he is not held responsible for the high degree of care which should be exercised under unusual circumstances. Anderson v. Perta, supra. We find, based on all the evidence presented, that such was the case instantly. Moore v. Meyer & Power Co., supra.

Accordingly, the Order of the court en banc denying the judgment n.o.v. is reversed with direction that judgment be entered for Nelson and Safeway Truck Company. Jurisdiction is relinquished.

      . After the first witness had been questioned on direct examination, the plaintiffs-appellees (Ann Louise Leshko, John M. Polumbo, Administrator of the Estate of Charles G. Leshko, Sr. and George and Evelyn Sagan) agreed to sign a Joint Tortfeasor’s Release, in the amount of $90,000, against Angelo DeStefano, Joseph Cavalleri (the owner of the tractor trailer driven by DeStefano) and Zurich American Insurance Company. (N.T. 84, 188-189 & 462)
      It requires mention that, in regard to the question of jurisdiction, the fact that the Order dated March 26, 1982, affirming the jury’s verdict, ultimately was "reduced to judgment for purpose of appeal” obviates the need for a remand to rectify the initial interlocutory nature of the Order. See Pa.R.App.P. 301(a).
      However, to the extent that the instant case involves appeals (Nos. 1073, 1074 & 1075 Philadelphia, 1982) from the March 26, 1982 Order, they are quashed.

      . The other two issues raised by the appellants concern: 1) whether the trial court erred in admitting the damaging testimony of an economist on the issue of decedent Leshko’s lost future earnings, which evidence allegedly failed to meet the requirements set forth in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980); and 2) whether counsel for the Sagans committed acts of misconduct during the course of the trial which separately or collectively may have influenced the jury in reaching its verdict. (Appellants’ Brief at 1)

      . Ann Louise Leshko, the decedent’s wife and a passenger in the right front seat of the Cadillac, did not remember the accident except for what happened “[a]fter the accident occurred!.]” (N.T. 252)
      It is appropriate to note here that, as was the case with Mrs. Leshko, Nelson also stated he did not know the distance traveled by his tractor trailer between the moment that DeStefano hit the Cadillac and his tractor trailer struck the same vehicle. (N.T. 470)


author: HESTER, Judge:

text:
    478 A.2d 835
    Robert A. DEITRICK and Jane S. Deitrick, His Wife, Appellants, v. Ricky D. KARNES.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1984.
    Filed June 1, 1984.
    Petition for Allowance of Appeal Denied Jan. 9, 1985.

      Gailey C. Keller, Bloomsburg, for appellants.
    David C. Dickson, Jr., Berwick, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

This appeal was taken from an Order of Court, dated May 24, 1982, denying appellants’ motion for a new trial. Appellants allege that the jury verdict entered in their trespass action was inadequate. The jury returned a verdict in favor of appellant Robert A. Deitrick and against appellee Ricky D. Karnes in the amount of $500.00; however, no amount was awarded appellant Jane S. Deitrick pursuant to her claim for loss of consortium.

Appellants’ trespass action arose from a boating accident in the Delaware Bay on May 20, 1980. Appellant Robert A. Deitrick, appellee Karnes and two other gentlemen, Steven Sitler and Terry Payne, travelled from their Pennsylvania residences to Deitrick’s Delaware cottage on May 18, 1980 for a fishing vacation. At 7:30 a.m. on May 20th, the foursome left the cottage in appellee’s sixteen-foot fiberglass motor boat for a fishing spot fourteen miles into the Delaware Bay.

At 1:00 p.m., following three and one-half hours of fishing, the men decided to return to Deitrick’s cottage. Appellee operated the boat from the right front seat, and Deitrick sat alongside him. Sitler and Payne occupied the two rear-facing seats located directly behind the front seats.

Appellee was operating the boat at twenty miles per hour. That speed enabled the boat to reach a “planing” or a level position. All members of the fishing party agreed that the water surface was “very smooth”.

Shortly after commencing their return trip, Deitrick observed three “rolls” in the water one hundred and fifty to two hundred yards in front of the boat and within its path. These “rolls” were created by the incoming tide striking a subsurface bank. The bank extended from a depth of thirty feet to a depth of one hundred feet. It was created by the excavation of a shipping lane in the bay. The “rolls” were unlike waves insofar as they were stationary at positions above the subsurface bank.

Deitrick requested that appellee stop the engine, but appellee did not hear. Deitrick repeated his request and gestured to gain appellee’s attention. Appellee heard Deitrick; however, he did not reach the throttle in time to cut the engine prior to encountering the first “roll”. The boat climbed to the top of the “roll” and plunged ten to twelve feet through an air space to the lower water level. This sudden and violent drop hurled Deitrick from his seat into the boat’s canvas canopy. When the boat touched water again, Deitrick settled onto the floor, twisted around his seat. Although they were tossed about the boat just as violently, the other men were not seriously injured. Deitrick, however, suffered a fractured lumbar vertebra.

Appellants maintain that the five-hundred-dollar verdict entered on behalf of Robert Deitrick and the verdict denying compensation to Jane Deitrick for loss of consortium were grossly inadequate. We agree; therefore, the Order will be reversed and the case remanded for new trial on the issue of damages only.

The amount of the verdict is an issue for the jury; it will rarely be held inadequate on appeal. Our Pennsylvania Supreme Court, in Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959), commented on the scope of the jury’s authority:

It is the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by witnesses. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury’s. The mere fact that a verdict is low does not mean that it is inadequate, (citations omitted). Id., 396 Pa. at 115, 152 A.2d at 240.

This Court in Morris v. Peckyno, 202 Pa.Super. 490, 198 A.2d 396 (1964), quoting 15 Am.Jur., Damages, § 231, refined the standard for reviewing an allegedly inadequate verdict:

As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or where the award is so inadequate that it should not be permitted to stand. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more. Id., 202 Pa.Superior Ct. at 492, 198 A.2d at 397.

Stated more familiarly, a jury verdict will not be set aside in the absence of clear error of law or palpable abuse of discretion. Gagliano v. Ditzler, 437 Pa. 230, 263 A.2d 319 (1970); Rhodes v. Hollender, 260 Pa.Super. 290, 393 A.2d 1268 (1978); Gottlob v. Hillegas, 195 Pa.Super. 453, 171 A.2d 868 (1961). Finally, we note that the Elza court set the standard of review in more graphic terms when it propounded that reversal on grounds of inadequacy of the verdict is appropriate only where “the injustice of the verdict (stands) forth like a beacon.” Elza v. Chovan, 396 Pa. at 118, 152 A.2d at 241.

A review of decisions refusing to reverse a jury verdict on grounds of inadequacy will perhaps facilitate a more complete understanding of this narrow scope of judicial review. In Bronchak v. Rebmann, 263 Pa.Super. 136, 397 A.2d 438 (1979), the defendant was found negligent for driving his vehicle into the rear of the plaintiffs vehicle as the plaintiff was yielding to right-of-way traffic. The plaintiff complained of cervical strain resulting from the accident. Despite evidence that the plaintiffs physician diagnosed cervical strain, prescribed muscle relaxants and physiotherapy and opined that the accident left plaintiff permanently disabled, the jury returned a verdict for the plaintiff in the paltry amount of $63.30. That amount covered emergency room services administered on the day of the accident.

Although recognizing that the verdict of $63.30 was low, the Bronchak court would not reverse. Evidence of pre-existing calcium deposits and cervical arthritis was introduced, which the jury could reasonably conclude was more responsible for the plaintiffs neck pain than the accident. Consequently, the Bronchak court concluded that “a careful analysis of the evidence suggests that the verdict was within the bounds of logic and consistent with the law and evidence.” Id., 263 Pa.Superior Ct. at 138, 397 A.2d at 440.

Similarly, in Jackson v. Capello, 201 Pa.Super. 91, 191 A.2d 903 (1963), a jury verdict of $2,000.00, awarded to the plaintiff for a gunshot wound to his leg, was not inadequate in light of the speculative calculation of lost wages, the $681.65 in hospital expenses, and the possibility of a proper compromise verdict where the jurors could not agree on the question of contributory negligence.

Finally, in Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955), a verdict of $5,000.00 was awarded to two pedestrians who were struck by an automobile. One pedestrian was hospitalized seventeen days for treatment to a fractured left clavicle and to severe contusions on his upper extremities. The other pedestrian suffered fractures to her teeth, sacrum, pelvis and left fibula. A lower back sprain and hematoma of her left thigh were also apparent. Her treatment required seventy-five days of hospitalization. The verdict of $5,000.00 was recognized by the appellate court as a sympathy verdict to cover the plaintiffs’ actual costs and to compensate, to a limited degree, the more seriously-injured plaintiff for her pain and suffering. In upholding the adequacy of the verdict, the Karcesky court accepted it as a compromise verdict based upon conflicting testimony on negligence.

Taken together, these cases hold that verdicts, seemingly low and unfair, are nevertheless adequate where the jurors reach an impasse over conflicting testimony on liability, contributory negligence or degree of injury.

Despite this reluctance of reviewing courts to take issue with the adequacy of jury verdicts, we are of the opinion that it must be done here. Therefore, we distinguish this case from Bronchak, Jackson and Karcesky.

On the evening of the accident, Mr. Deitrick was treated and released at Beebe Hospital in Lewes, Delaware. The ambulance service, hospital bill, and X-rays for the emergency treatment in Delaware totalled $109.50. On May 23, 1980, following Deitrick’s arrival at his home in Benton, Columbia County, Pennsylvania, he was treated at the Veteran’s Hospital in Wilkes-Barre, Pennsylvania. This treatment primarily involved another X-ray and being fitted with a corset. Due to the fact that the treatment at the Veteran’s Administration Facility was rendered without cost to appellant, his medical expenses amounted to but $109.50. Inasmuch as the jury returned a verdict for $500.00 and found both parties to be 50% negligent, $445.25 was awarded for pain and suffering, inconvenience and/or loss of wages. Despite the jury’s finding of comparative negligence, that amount is shockingly low. In our opinion the verdict was inadequate.

Evidence of pain and suffering was plentiful. Deitrick’s vertebra was fractured upon impact with the floor of the boat. He was unable to sit for the return trip; instead, his companions laid him on the floor and propped his head with a pillow. The vibration from the “planing” aggravated this pain; therefore, the boat speed was reduced. Upon reaching the shore, Deitrick could neither stand nor walk in order to leave the boat. With appellee’s help, he crawled from the boat to the sand, and remained prone until the coastguard paramedic team arrived. Shortly thereafter, a state police helicopter transported Deitrick to Beebe Hospital. Unable to walk, he was carried to and from the helicopter on a wooden stretcher.

Following his release, Deitrick was unable to walk. As a result, his fishing companions carried him to the car, and again from the car to the cottage. When he arrived at the cottage following the accident on May 20, 1980, Deitrick was immediately placed in bed. He remained in bed that evening, all day on May 21st, and again that evening, until the men began their return trip to home in late morning, May 22, 1980. During those hours in bed at the cottage, Deitrick slept at short intervals; the severe pain prevented lengthy and restful sleep.

Having returned home and following treatment at the Veteran’s Hospital, Deitrick remained in bed for one week. Thereafter he was permitted to be up for an hour each day. Following one month, his time out of bed expanded to two or three hours each day. These long periods in bed prevented Deitrick from returning to work until mid-August. During this three-month period of convalescence, Deitrick suffered from severe pain. Once he returned to work, his work days did not surpass five hours. In fact, on the day of trial, nearly two years following the accident, Deitrick continued to suffer from discomfort to the extent that a full day’s work was possible only two days per week. The remaining work days were abbreviated.

Deitrick’s period of convalescence continued to the day of trial. Although treatment consisted mostly of rest, he was treated on three occasions at the Veteran’s Hospital, given prescriptions for a muscle relaxant, and fitted with a corset. This evidence demonstrates that Deitrick endured a lengthy and painful period of convalescence; therefore, the verdict does not adequately compensate him for his pain and suffering.

The verdict was also inadequate insofar as it granted an insufficient amount for Deitrick’s loss of wages. His income and profit from his self-employment as a general contractor of pre-fabricated steel commercial buildings for five years provide sufficient evidence of the inadequacy of the verdict. For example, Deitrick incurred a loss of $1,731.00 in 1976; a loss of $377.00 in 1977; a profit of $2,469.00 in 1978; a gross income of $140,000.00 and a profit of $8,000.00 in 1979; a gross income of $39,650.00 and a profit of $3,000.00 for 1980, the year of the accident. Deitrick began his private business in 1976 following employment as a union construction worker. The early years’ income was commensurate with a newly-founded business. Income rose steadily to its peak in 1979, the final complete tax year prior to the accident. However, it was significantly reduced in 1980. We recognize, of course, that the jury may have concluded that the low income in 1980 was not the result necessarily of Deitrick’s injury. After all, economic conditions in certain industries were turning bleak. Nevertheless, no evidence of a faltering market for prefabricated steel buildings was introduced. For these reasons, the jury verdict was inadequate on loss of wages.

That portion of the verdict denying any amount for Jane Deitrick’s loss of consortium is equally shocking and inadequate. Sufficient and incontroverted evidence was elicited which demonstrated that Jane Deitrick’s right to Robert Deitrick’s company, affection and cooperation was restricted. For example, Mrs. Deitrick was compelled to sleep on the divan in the livingroom for some time following the accident, due to her husband’s continual moaning throughout the night. For two months following the accident, Mr. Deitrick was unable to perform routine domestic tasks such as mowing the lawn and dumping the garbage into the trash can. Not until July was he able to cook dinner and perform other light domestic chores. Deitrick’s inability to perform these chores was particularly significant since Jane Deitrick owned a gift and craft shop which required her attention for long hours every day. Prior to the accident, Robert Deitrick would assist Jane Deitrick at her shop with moving heavy equipment and re-arranging displays. Deitrick could offer no assistance to his wife either at the home or at her place of business for some time. Thereafter, his assistance at home and at her place of business was restricted to the date of trial.

This evidence of loss of consortium was uncontradicted. Appellee chose not to cross-examine Jane Deitrick or challenge her testimony in his case in chief. Therefore, the jury’s disregard of this incontroverted evidence rendered the verdict inadequate to the extent that Mrs. Deitrick was denied any amount for loss of consortium.

In so holding, we find ourselves in conformity with those opinions which found verdicts inadequate. A wrongful death action verdict of $11,234.50 and a survival action verdict of $128,173.17 were held inadequate in view of uncontradicted actuarial testimony on decedent’s lost earnings, lost pension, lost social security benefits, and value of services to his family. Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213 (1983). A verdict in favor of the plaintiff with no financial recovery bore no “reasonable resemblance” to damages proved where the plaintiff was held not contributorily negligent, and where there was evidence of hospitalization, missed work, substantial medical expenses and lost wages. Reid v. Oxendine, 275 Pa.Super. 548, 419 A.2d 36 (1980). A verdict of no damages in a survival action was shocking where uncontested evidence of a fifty-year life expectancy and projected earnings resulted in proof of lost lifetime net earnings of $77,659.99. Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982). As in Slaseman, Reid and Bortner, evidence of damages here was largely uncontested. Evidence of damages in Blonchak, Jackson and Karcesky was contradicted by the defense; therefore, the jury was justified, in determining credibility, in returning nominal damages.

In denying appellants’ motion for a new trial, the lower court accepted the $500.00 verdict as an indication of the jurors’ compromise on comparative negligence. This was so despite the jury’s assessment, under the comparative negligence doctrine, of 50% causal negligence to each party. The lower court was of the opinion that “all of the reasoning which has supported the acceptance of compromised verdicts in contributory negligence cases is equally applicable to cases governed by comparative negligence principles.”

Prior to Pennsylvania’s enactment of the comparative negligence doctrine in 1976, 42 Pa.C.S. § 7102(a), compromise verdicts were frequently returned by juries which had considerable doubt concerning the defendant’s liability. Elza v. Chovan, supra; Robinson v. Brown, 195 Pa.Super. 384, 171 A.2d 865 (1961); Hilscher v. Ickinger, 194 Pa.Super. 237, 166 A.2d 678 (1960), aff'd., 403 Pa. 596, 170 A.2d 595 (1961). These verdicts were upheld under the application of the contributory negligence doctrine. They were accepted as a just mechanism to assist the jury in issuing the most equitable verdict.

It is not necessary for us to decide whether compromise verdicts remain permissible under Pennsylvania’s comparative negligence doctrine. We add, nevertheless, that a pure negligence doctrine, which reduces the plaintiffs damages by the amount attributed to his causal negligence, regardless of the degree of that negligence, would seem to eliminate the need for compromise verdicts. Conversely, Pennsylvania’s comparative negligence doctrine reduces the plaintiff’s damages in proportion to the amount of negligence for which he is responsible, providing the plaintiff’s negligence is not greater than the defendant’s causal negligence. In Pennsylvania, where the plaintiff is 51% or more causally-negligent, no recovery is permitted. To the extent that no recovery is permitted under Pennsylvania’s comparative negligence doctrine, a compromise verdict may be apropos. Here, however, the verdict was not a compromise.

The jury found that 50% of the total causal negligence was attributable to appellee and 50% attributable to Mr. Deitrick. Having made this assessment, a refusal to award Jane Deitrick for loss of consortium where there was no evidence to the contrary, was so illogical and unreasonable as to shock our sense of justice. A verdict for no damages, then, is not a compromise. Bortner v. Gladfelter, supra.

The damages for pain and suffering, inconvenience and work loss awarded Deitrick, despite the fact that actual damages were diminished 50% to reflect his 50% causal negligence, are so inconsistent with the uncontradicted evidence that they amount to little more than the non-recovery for Mrs. Deitrick. Also, for this reason, the verdict cannot be considered a compromise.

The Order is reversed and the matter remanded for new trial on the issue of damages only. The issue of negligence was fairly determined. Furthermore, appellants do not question it on appeal, therefore, new trial will not cover the issue of negligence. See Troncatti v. Smereczniak, 428 Pa. 7, 235 A.2d 345 (1967).

Reversed and remanded for new trial on damages only. Jurisdiction relinquished.

ROWLEY, J., concurred in the result.


author: WIEAND, Judge:

text:
    478 A.2d 840
    Elvira BUTLER v. Anthony DeLUCA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1984.
    Filed June 15, 1984.
    Petition for Allowance of Appeal Denied Oct. 2, 1984.

      Severin A. Russo, Pittsburgh, for appellant.
    Sara J. Klein, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

A jury in Allegheny County found that Anthony DeLuca was not the biological father of a son born to Elvira Butler on September 8, 1977. A three judge court en banc, with the trial judge dissenting, awarded a new trial because of trial errors. DeLuca appealed. We affirm.

Ms. Butler testified during trial that she had met DeLuca in the summer of 1976. Commencing in the latter part of July and continuing until the first week of December, but with the exception of several weeks in October, she and DeLuca maintained a relationship which included sexual activity on a regular, almost daily, basis. While the relationship continued, she said, she did not engage in sexual relations with any other person. She testified that her pregnancy was not discovered until after her relationship with DeLuca had been terminated in December, 1976. When the child was born, Butler caused DeLuca to be listed as father on the birth certificate. The child was named Anthony Gino DeLuca, allegedly for his father. Medical testimony, based on the results of HLA bloodtesting, demonstrated a 96.4 percent probability that DeLuca was the biological father of the child.

DeLuca denied paternity. He testified that he had had no more than four sexual encounters with Butler and that the last of these had occurred on October 31, 1976. He contended that he had had no sexual relations with Butler during the period of possible conception. He was the sole witness for the defense. He testified that others had had access to and had been on intimate terms with appellee. His testimony in this respect can be summarized as follows: (1) On September 25, 1976, DeLuca peered through a window adjacent to the door of Butler’s dwelling and observed Butler and an unidentified male, both of whom were nude on the couch in the living room; (2) Butler told DeLuca she had a boyfriend, a “motorcycle gangster,” whom she intended to marry and with whom she had had a late night date in the latter part of October; (3) Butler was “messing around” with men who congregated on a corner across from the apartment in which she lived, who were described by DeLuca as up to “100 Italians;” and (4) Butler told DeLuca that in late November and early December, she had been “stay png] overnight” with her mathematics teacher in order to achieve graduation from a Manpower school in which she was enrolled.

“A grant of a new trial is a matter within the sound discretion of the trial court. The ... court’s grant of a new trial will not be disturbed on appeal ‘unless there has been a clear abuse of discretion or an error of law which controlled the grant of a new trial.’ ” Sindler v. Goldman, 309 Pa.Super. 7, 11, 454 A.2d 1054, 1056 (1982), quoting Crosbie v. Westinghouse Elevator Co., 297 Pa.Super. 304, 307, 443 A.2d 849, 850 (1982). See: Gilligan v. Shaw, 441 Pa. 305, 307, 272 A.2d 462, 464 (1971); Anzelone v. Jesperson, 436 Pa. 28, 30, 258 A.2d 510, 510 (1969); Fisher Sprinkler Co. v. Ide, 305 Pa.Super. 554, 558, 451 A.2d 1015, 1017 (1982); McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). Moreover, a reviewing court may affirm the decision of the trial court if the result is correct on any ground without regard to the grounds relied upon by the trial court. E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Gwinn v. Kane, 465 Pa. 269, 279 n. 12, 348 A.2d 900, 905 n. 12 (1975); Mazer v. Williams Bros. Co., 461 Pa. 587, 593 n. 6, 337 A.2d 559, 562 n. 6 (1975); Leasing Service Corp. v. Benson, 317 Pa.Super. 439, 455-456, 464 A.2d 402, 410 (1983); Pullium v. Laurel School District, 316 Pa.Super. 339, 346 n. 7, 462 A.2d 1380, 1383 n. 7 (1983).

The court en banc held that it had been error for the trial court to permit “testimony of Plaintiff’s alleged sexual activity with unnamed individuals.” This holding was too broad. In cases such as this, “a fact extremely important in the inquiry is whether the mother of the child had connection with others than the defendant at or about the time the child was begotten.” Commonwealth v. Young, 163 Pa.Super. 279, 283, 60 A.2d 831, 833 (1948), quoting Commonwealth v. Rex, 147 Pa.Super. 121, 123, 24 A.2d 98, 99 (1942). The fact that some of the persons referred to in DeLuca’s testimony were unnamed and not clearly identified was a fact which could be considered by the jury in determining the credibility and weight of the evidence. However, it did not render the evidence incompetent or inadmissible. Moreover, as the trial judge observed in his dissenting opinion, the teacher had been sufficiently identified, and the testimony of admissions pertaining to the motorcyclist had been given at trial without objection.

After the evidence had been received, however, it became the duty of the trial court to explain the function and significance of the evidence to the jury. The purpose of jury instructions “is to furnish guidance to the jurors, by stating and explaining the law of the case, clarifying the issues of fact and pointing out the essential facts which must be established. Clarification of the issues is necessary to enable the jurors to comprehend the issues which they are to decide, and to assist them in applying the law to the issues.” 10 Std.Pa.Prac. § 59:1. See also: Kimmel v. Yellow Cab Co., 414 Pa. 559, 201 A.2d 417 (1964); Hronis v. Wissinger, 412 Pa. 434, 194 A.2d 885 (1963); Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963); Russell v. Helm’s Express, Inc., 221 Pa.Super. 292, 293 A.2d 78 (1972).

In this case, although the court instructed the jury regarding burden of proof and credibility of witnesses, it did little more. It did not review the issues or the applicable law, except to tell the jury that it should decide whether DeLuca was the father of Butler’s child.

Appellee had submitted several written requests for instructions, but they were refused. Among the points submitted and refused, whose omission was cited as error, were the following:

6. The Courts in this Commonwealth have found that a live birth will occur between 220 and 330 days after conception. Therefore, you are to consider evidence of sexual activity of the parties between October 13, 1976 and January 30, 1977. [] Commonwealth v. Watts, 179 Pa[.]Super[.] 398, 116 A.2d 844 (1955).
7. You have seen Anthony Gino DeLuca, the child who is the subject of this action. In reaching your decision, you may consider any physical resemblance between this child and the Defendant, Mr. DeLuca.

As a general rule, the refusal to give a proper instruction requested by a party is ground for a new trial unless the substance thereof has otherwise been covered by the court’s general charge. See: 28 P.L.E., New Trial § 30. See also: Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975); Pleasant v. Carr, 387 Pa. 634, 130 A.2d 189 (1957); McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980); National Products Co. v. Atlas Financial Corp., 238 Pa.Super. 152, 364 A.2d 730 (1975). Even though a requested instruction is technically incorrect, it may nevertheless be adequate to alert the trial judge to an issue which requires clarification or additional instruction. See: McGowan v. Devonshire Hall Apartments, supra, 278 Pa.Superior Ct. at 242, 420 A.2d at 520; 38 P.L.E. Trial § 313.

Butler’s medical records were received in evidence and disclosed that her last menstrual period had occurred November 14, 1976; that the initial estimated date of delivery had been August 21, 1977; and that the final diagnosis had been “40 weeks, delivered, pregnancy.” This evidence warranted an instruction, as appellee had requested, regarding the estimated period during which conception could have occurred and the period during which her sexual activity would be relevant in determining paternity. Whether Butler had sexual relations with DeLuca or with third persons at or about the time when conception was possible was a critical area of inquiry. See: Commonwealth ex rel. Lonesome v. Johnson, 231 Pa.Super. 335, 331 A.2d 702 (1974); Commonwealth v. Rankin, 226 Pa.Super. 37, 311 A.2d 660 (1973); Commonwealth v. Boggio, 204 Pa.Super. 434, 205 A.2d 694 (1964); Commonwealth v. Harbaugh, 201 Pa.Super. 360, 191 A.2d 844 (1963); Commonwealth v. Boas, 181 Pa.Super. 285, 124 A.2d 178 (1956); Commonwealth v. Sloan, 177 Pa.Super. 178, 110 A.2d 827 (1955). Therefore, either party was entitled to request an instruction regarding the period during which sexual activity of the parties was relevant to the paternity issue.

Because the court did not in any way instruct the jury in this respect, the jury was free to consider as substantive evidence of appellant’s non-paternity, the testimony that appellant saw appellee nude on a couch with an unidentified male on September 25, 1976. According to the testimony in this case and the law stated in decisions of this Court, this incident could not have been within the period of possible conception. See: Commonwealth v. Watts, supra; Commonwealth v. Young, supra. Although an instruction on this aspect of the case had been requested, it was not given. This was error.

The trial court had permitted Butler to display the child to the jury, over DeLuca’s objection, for the purpose of enabling the jury to observe similarities, if any, between the physical features of the child and those of the putative father. It was appropriate, therefore, that the jury be instructed regarding the use which it could make of this evidence. Appellee requested an instruction consistently with existing law. See: Commonwealth ex rel. Lonesome v. Johnson, supra; Commonwealth v. Pearl, 33 Pa.Super. 97 (1907). To refuse to instruct the jury on this rule, after being requested to do so, was error.

The trial court did not instruct the jury at any time regarding the matters suggested by appellee’s points for charge. This failure required that a new trial be granted.

The order granting a new trial is affirmed.

      . According to Ms. Butler’s testimony, she discontinued her relationship with Mr. DeLuca in early October but resumed it at the end of the same month.

      . The possible exclusion, on grounds of irrelevancy, of testimony pertaining to observations made by appellant on September 25, 1976, almost a year prior to birth of the child, was not preserved by counsel or discussed by the court en banc. We, too, do not consider the possible exclusion of such evidence.

      . It is unnecessary to take a specific exception in order to preserve for review the trial court’s refusal to give a requested instruction. Brancato v. Kroger Co., 312 Pa.Super. 448, 458 A.2d 1377 (1983). See: Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977).


author: SPAETH, President Judge:

text:
    478 A.2d 845
    Edward ROMAN and Catherine Roman, H/W v. Robert S. PEARLSTEIN, t/a Empire Realty and Allen J. Goldstein, Ronald Rapp and Jeanette Rapp, H/W and Tom Dunphy, Inc. Appeal of Robert S. PEARLSTEIN, t/a Empire Realty.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1983.
    Filed June 22, 1984.

      Manuel A. Spigler, Philadelphia, for appellant.
    Neil A. Morris, Philadelphia, for Roman, appellees.
    Lloyd Norris, Philadelphia, for Rapp, appellees.
    Macker Duffy, Jr., Philadelphia, for Dunphy, appellee.
    Before SPAETH, P.J., and BROSKY and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal from an order imposing sanctions for refusal to make discovery. The sanctions were that appellant must pay appellees’ counsel a fee of $500, and that appellant is “preclud[edj ... from introducing any evidence and examining any witnesses at the trial.” We find the order reasonable as to the counsel fee but, in the circumstances, otherwise too severe. We therefore reverse so that the court may impose a more appropriate sanction.

Appellees’ complaint alleges that appellant “entered into an unlawful and fraudulent conspiracy” to induce appellees into purchasing a termite infested house. Amended Complaint in Trespass and Assumpsit at If 44. On July 23, 1981, appellees filed a motion to compel appellant to produce his income tax returns for the years 1978, ’79, and ’80, and to answer certain interrogatories relating to his financial condition. Appellees argued that this information was relevant to their claim for punitive damages. Appellant argued that he did not have to produce the tax returns or answer the interrogatories because appellees had not made a prima facie showing that punitive damages should be awarded. The trial court found that appellees had “surpassed the threshold of a prima facie showing of entitlement to punitive damages”, slip op. of trial court at 13, and on October 29, 1981, issued an order granting appellees’ motion to compel the discovery. The order provided that appellant “shall provide the above within twenty (20) days from the date of this Order. Failure to comply with this Order will result in sanctions upon application to the Court.”

Appellant failed to comply with the order but on November 17, 1981, filed a motion for reconsideration and requested oral argument. The trial court issued a rule to show cause, returnable December 22. When appellant failed to appear for argument on December 22, the trial court, relying on the submitted memoranda of counsel, issued an order on January 7, 1982, denying appellant’s motion for reconsideration and reinstating the order of October 29. Again the court warned that “failure to comply ... will result in sanctions upon application to the Court.”

Once again appellant did not comply with the order. Instead, on January 27, 1982, he filed a “Petition to Set Aside” the order, claiming that the trial court had denied reconsideration merely because his counsel did not appear for argument, and requesting a rescheduling of oral argument and a decision on the merits of the motion for reconsideration. Appellees filed an answer to appellant’s petition, including in the answer a section entitled “New Matter”, which amounted to an application for sanctions. Appellant filed an objection to the application. On March 16, 1982, the trial court dismissed appellant’s petition to set aside and granted appellees’ application for sanctions:

AND NOW, this 16th day of March, 1982, it is hereby, ORDERED AND DECREED that:
1. Defendant Robert S. Pearlstein’s, t/a Empire Realty Petition to Set Aside Order of January 7, 1982 reinstating the Court’s Order of October 29, 1981 is DENIED as being frivolous, dilatory and totally without merit;
2. Because of defendant Pearlstein’s repeated violations of this Court’s discovery orders, an order is entered against defendant Robert S. Pearlstein precluding him from introducing any evidence and examining any witnesses at the trial of this matter, pursuant to Pa.R.C.P. 4019(c)(2);
3. Defendant Pearlstein shall pay to plaintiffs’ counsel, Neil A. Morris, Esquire, the sum of $500, which constitutes reasonable attorney’s fees and expenses incurred relative to the defendant’s dialtory [sic] conduct;
4. Defendant Pearlstein shall comply with this Court’s Order of October 29, 1981 within ten (10) days from the date of this Order. Failure to comply with this Order for any reason will result in the imposition of a default judgment against defendant Pearlstein upon application to the Court. Defendant Pearlstein is to file no more Motions for Reconsideration relative to this Court’s Order, dated October 29, 1981.

The court also denied appellant’s objection to appellees’ application for sanctions as moot since appellant’s petition to set aside had been denied. Appellant appeals from those parts of the court’s order imposing counsel fees and precluding appellant from introducing evidence and examining witnesses.

Appellant argues that before entering the March 16th order, the trial court should have ruled on appellant’s objection to appellees’ application for sanctions, contained in appellees’ answer as new matter. Appellant’s objection was that the application should have been by motion rather than in new matter. Although, as noted, the trial court denied the objection as moot, the court by granting the application for sanctions in effect determined that the new matter was a sufficient motion: “Precluding plaintiffs from requesting the imposition of sanctions because the request was entitled ‘New Matter’ rather than ‘Motion’ or ‘Cross-Motion’, would be tantamount to preferring form over substance.” Slip op. of trial court at 20. We agree with this statement.

Appellant also argues that “Rule 4019(a)(2) provides that the failure to act pursuant to a discovery request will be excused if ‘appropriate objections’ have been filed.” Brief for Appellant at 23 (emphasis added). Appellant misstates the rule, which provides:

A failure to act described in subdivision (a)(1) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order. Pa.R.C.P. 4019(a)(2).

Thus the court may excuse the failure to respond to a discovery request if the court finds the objection “appropriate”. Here the court determined that appellant’s objection to discovery was not appropriate.

Finally, appellant argues that the order imposing sanctions was an abuse of discretion.

In Gonzales v. Procaccio Brothers Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979), this court held:

Pa.R.C.P. No. 4019 is clear. It establishes an unequivocal and mandatory procedure. Where [a party fails to comply with a discovery request] a motion must be presented to the court to determine the default. Hanchey v. Elliott Truck Brokerage Company, 421 Pa. 131, 135, 218 A.2d 743, 745 (1966). Upon finding that a default has occurred, “the court may ... make an appropriate order.” Subdivision (c) of Pa.R.C.P. No. 4019 amplifies the scheme of the rule by designating specific sanction orders which may be appropriate under particular circumstances. The imposition of specific sanctions, however, is largely within the discretion of the court. Pompa v. Hojnacki, 445 Pa. 42, 45, 281 A.2d 886, 888 (1971). See also: 10 Goodrich-Amram 2d § 4019(a):2.1, 3.1; 5A Anderson Pennsylvania Civil Practice § 4019.2. Id., 268 Pa.Superior Ct. at 251, 407 A.2d at 1341.

The court may impose sanctions even if the failure to comply is not wilful. “Wilfullness of course may be a factor in determining the extent of the sanction but it will not be an essential condition precedent to the power to impose a sanction.” Explanatory Note — 1978 to Pa.R.C.P. 4019.

Here, the trial court determined that extreme sanctions were necessary because appellant’s failure to comply was in bad faith. Slip op. of trial court at 19. We have no difficulty in agreeing that appellant's failure to comply was willful. That sufficiently appears from appellant’s conduct following the trial court’s determination in October that appellant’s objection to appellees’ discovery request was meritless. As this court stated in Verbalis v. Verbalis, 286 Pa.Super. 209, 428 A.2d 646 (1981), where the extreme sanction of non pros was upheld:

Undoubtedly, appellant had reasons which appeared to him to be valid for refusing to comply with a direct order of the court, but in so doing he ran a grave risk that sanctions would be entered against him, including punishment for contempt of court or judgment of non pros. Having made a deliberate decision to disregard the order of October 10, 1979, pertaining to discovery appellant has now suffered a judgment of non pros properly entered by the court below under Pa.R.C.P. 4019(c)(3). Id., 286 Pa. Superior Ct. at 212, 428 A.2d at 647.

Also, we have no difficulty in concluding that the trial court’s order imposing counsel fees was not an abuse of discretion. Instead of obeying the October order, appellant delayed the action by challenging the order twice, on the basis of an objection already found meritless by the court. However, we are unable to approve the court’s precluding appellant from introducing evidence and examining witnesses.

The trial court characterized appellant’s behavior as “dilatory, obdurate, vexatious and in bad faith.” Slip op. of trial court at 25: Nevertheless, as we said in Gonzales v. Procaccio Brothers Trucking Co., supra:

Pa;R.C.P. No. 4019 envisions a procedure by which the court, when confronted with a failure [to comply with a discovery request], will exercise judicial discretion in formulating an appropriate sanction order. This requires the court to select a punishment which “fits the crime.” If a written interrogatory asks for information which, although relevant, is not determinative of the entire controversy, a default judgment, which in effect is an adjudication of the merits, would seldom, if ever, be appropriate. Under such circumstances, it would be more appropriate to treat the default as an admission or to disallow proof at trial of such undisclosed information. The need to “fit the punishment to the crime” compels the exercise of judicial discretion. The court is required to strike a balance between the procedural need to move the case to a prompt disposition and the substantive rights of the parties. Id., 268 Pa.Super. at 252, 407 A.2d at 1341.

Here the discovery requested related not to liability but solely to damages. It was therefore disproportionate to punish appellant by, in effect, imposing liability on him despite the fact that his liability had not been proved, and the further fact that the discovery requested would not assist in proving it. It would seem that a more appropriate sanction would have been one that would have the effect of obtaining the discovery requested, so that if appellees did prove liability, their ability to prove damages would not be hindered. For example, the court might have found appellant in contempt and ordered that he be fined or imprisoned until the discovery requested had been made. See Commonwealth ex rel. Novack v. Novack, 310 Pa.Super. 112, 456 A.2d 208 (1983) (five step procedure for civil contempt). However this may be, we are confident that on remand the court can devise a more appropriate sanction than precluding appellant from introducing evidence and examining witnesses.

That part of the trial court’s order imposing counsel fees is affirmed, but that part precluding appellant from introducing evidence and examining witnesses at trial is reversed, and the case is remanded to the trial court for imposition of a more appropriate sanction consistent with this opinion. Jurisdiction is relinquished.

      . Appellees’ answer is not included in the certified record. However, both parties and the trial court agree as to the contents, and a copy is included in the reproduced record. The same is true of appellant’s objection to appellees’ new matter.

      . Appellees argue that the appeal is interlocutory and should be quashed, but the argument is without merit. Commonwealth, Department of Environmental Resources v. Wheeling Pittsburgh Steel Corp., 473 Pa. 432, 375 A.2d 320, 323 (1977) cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456: (“The refusal to allow evidence of a 'possibly meritorious defense puts [appellant] out of court and, therefore, the order is ‘final’ for appeal purpose.”). We do not consider the propriety of the trial court’s order of October 29, 1981, compelling discovery, Kine v. Forman, 412 Pa. 163, 194 A.2d 175 (1963) (appeal from order directing discovery interlocutory), or the propriety of that part of the trial court’s March 16, 1982, order denying appellant’s petition to set aside the order of January 7, 1982.


text:
    478 A.2d 850
    COMMONWEALTH of Pennsylvania v. Randy Glenn CHIESA, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed July 6, 1984.

      George M. Lynch, Latrobe, for appellant.
    Margaret S. Picking, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.

      Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Randy Chiesa, after his conviction for robbery and criminal conspiracy. We affirm.

Appellant raises six issues which arise from searches and seizures which were conducted by the police.

Appellant contends that: (1) the first search of appellant's automobile was illegal because it was without a warrant; (2) the first search of appellant’s automobile was illegal because the doctrine of plain view is inapplicable; (3) the warrantless search was illegal because the police officer failed to establish any exigent circumstances; (4) the warrantless search was illegal because the police officer failed to establish any of the exceptions to obtaining a warrant; (5) the subsequent searches of appellant’s automobile and the residence were tainted by the initial illegal search of the car; and (6) the location of appellant’s car which was in his driveway was a location where the appellant had a reasonable expectation of privacy. We must reject appellant’s contentions.

The facts, which were recounted for the most part by the suppression court are as follows:

On September 20, 1980, at approximately 9:00 p.m., an armed robbery occurred at the Highway Theatre on Route 30 near Latrobe, Pennsylvania. A general description of the size of a man who was wearing a mask was given to Pennsylvania State Policeman Laposky. Trooper Laposky briefly put under surveillance the residence of one Arthur Bollman in the Village of Snydertown in Derry, Westmoreland County, Pennsylvania, because the physical description of one of the actors matched the physical description and mask worn by an actor in five previous robberies which the police were investigating. The appellant, a tenant at the Bollman residence, was a suspect in these prior robberies. After a brief surveillance, Trooper Laposky entered upon the Bollman property on a driveway where the appellant’s vehicle was parked. While using á flashlight, Laposky looked into the front seat of the automobile and saw what appeared to be a mask lying in open view on the front seat.

The second search of the car — the 1975 Blue Chevrolet Coupe of the defendant — produced a navy blue ski mask, a 22 caliber colt gun and one shell, a plaid shirt, a red vinyl bag containing a blue shirt and a .357 gun with a shoulder holster and finally a hash pipe.

The search of the basement of the Bollman residence with the written consent of the defendant produced a blue money bag containing $506.00 in currency.

The suppression court concluded that appellant’s Fourth Amendment rights were not violated. We agree.

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

To begin with, the police officer’s discovery of the mask which was on appellant’s front seat was permissible because appellant did not have a reasonable expectation of privacy.

The record indicates that the Bollman house had many tenants and obviously many people were in and out of the house and parking area not to the exclusion of the appellant who was a tenant. Appellant parked his car in an adjacent parking area and did not have exclusive rights to this parking area. Appellant did not pull the car into a garage but left his car front seat in open view at the edge of the property which was partly in a fenced area and partly outside of the fenced area.

At this time the officer felt the hood of the automobile. After determining that it was still warm, the officer went to the doorway of the Bollman residence where he was greeted by an occupant who summoned the appellant. Trooper Laposky asked the appellant to get his car keys and come outside. The appellant, without protest, and although he had no idea of the identity of the trooper, amazingly complied with the unidentified party’s request, and voluntarily opened his car door and retrieved what was in fact a mask off the front seat of his car.

Laposky determined it was indeed a mask. He then placed the appellant in the police car, read him his Miranda rights, and procured a written consent to search the appellant’s car and that portion of the Bollman residence where the appellant resided as a tenant.

The appellant testified that since a mask was found, it was useless not to sign a consent to search the balance of his car or his tenement. The appellant acknowledged that his signature appeared on the written consent form identified as Commonwealth’s Exhibit “1” at the suppression hearing. However, he attempted to excuse the signature which he voluntarily affixed on the consent form on the basis that he was told that the trooper would get a search warrant if he refused. In the words of appellant’s lawyer, “the jig was up” and appellant may as well sign a consent form anyway.

In reviewing appellant’s claim, we reject his suggestion that the plain view doctrine is inapplicable. Under the plain view doctrine, the cases fall into two distinct categories. The first line of cases “involves those situations in which the ‘view’ takes place after an instrusion into a constitutionally protected area. Under this line of cases if the original intrusion is justified, such as by consent, hot pursuit, warrant or other, objects sighted in plain view will be admissible, see Ker v. California, supra [374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963)] so long as the view was inadvertent.” (emphasis in original) (cases omitted). Commonwealth v. Adams, 234 Pa.Super. 475, 479, 341 A.2d 206, 208 (1975). Accord Commonwealth v. Burton, 292 Pa.Super. 73, 436 A.2d 1010 (1983). Under the second line of cases, which is applicable to the instant case “the view takes place before any intrusion into a constitutionally protected area.” Id., 234 Pa.Superior Ct. at 482, 341 A.2d at 209. (emphasis in original).

We continued with the following discussion:

“These cases are distinguishable from the first line of cases in two respects. First, because no intrusion into a constitutionally protected area takes place, fourth amendment rights are not involved and the requirement that the view be inadvertent is not applicable. Secondly, the warrantless seizure of evidence cannot be justified by the plain view alone. Thus in United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927) when a Coast Guard patrol boat on the high seas approached a rum runner’s launch to examine her with a search light, Mr. Justice BRANDEIS could say that “no search on the high seas [was] shown.” Id. at 563, 47 S.Ct. at 748. Nearly half a century later in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974) the Court held that an environmental field inspector who had entered the defendant’s land to run a visual test on smokestack pollution committed no fourth amendment violation. Noting that the Court was not advised that the inspector had entered land from which the public was excluded and that he only “had sighted what anyone in the city who was near the plant could see in the sky — plumes of smoke,” the Court stated that any invasion of privacy “if it can be said to exist, [was] abstract and theoretical.” Id. at 865, 94 S.Ct. at 2116.
It is generally held that the mere looking at that which is open to view is not a search. Commonwealth v. Anderson, 208 Pa.Super. 323, 222 A.2d 495 (1966). In Commonwealth v. DeJesus, 226 Pa.Super. 79, 310 A.2d 323 (1973), an officer investigating a complaint against the occupants of a parked car, did not commit a search when he examined the occupants of the car and observed a revolver. In those situations in which no intrusion into a constitutionally protected area occurs, no search is made. Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970) [, cert. den. Hernley v. Pennsylvania, 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971).] See Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (search of exterior of car did not infringe any expectation of privacy); United States v. Minton, 488 F.2d 37 (4th Cir.1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974) (open fields are not constitutionally protected areas); United States v. Various Gambling Devices, 478 F.2d 1194 (5th Cir.1973) (observation made in building open to public).
The second distinction in this line of cases is that the warrantless seizure of evidence cannot be justified by the plain view alone. This was clearly stated in Coolidge v. New Hampshire, [403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)2 ] supra, “[P]lain view alone is never enough to justify the warrantless seizure of evidence____ [E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” Id., 403 U.S. at 468, 91 S.Ct. at 2039 (emphasis original). Thus, in those cases in which the view precedes an intrusion into a constitutionally protected area the officer must be able to rely upon exigent circumstances, see Commonwealth v. DeJesus, supra, or he must obtain a warrant before he seizes the evidence. See, e.g., State v. Brown, 1 Or.App. 322, 461 P.2d 836 (1969) (officer observed marijuana growing in open view in greenhouse); People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129 (1969) (officer observed marijuana plant growing under tree in defendant’s yard). This rule is contrary to the rule in the after-intrusion line of cases. In those cases because the justifiable intrusion already has occurred, no further intrusion is occasioned by the seizure of evidence which is in plain view and the seizure is permitted without more. See Ker v. California, supra. In the preintrusion view cases no intrusion is occasioned by the view and the intrusion necessary to seize evidence must be justified by a warrant or one of the exceptions to the warrant requirement. See Coolidge v. New Hampshire, supra.” Id. at 210-211 (emphasis added).

We have reviewed the record in accordance with the above guidelines and agree with the suppression court’s conclusion that appellant, a tenant, “left his car parked in a parking lot where visitors, guests, fellow tenants, and even passersby could look in the window of his car and see the “mask” on the front seat. The, [appellant,] Chiesa, therefore, could not expect that his car would be protected by the constitution from an investigating officer looking in his car that was parked unattended in a common driveway.” Suppression Court’s Opinion at 9. See Commonwealth v. Lowery, 305 Pa.Super. 66, 73, 451 A.2d 245, 248 (1982), (Where “joint access or control exists, there can be no reasonable or legitimate expectation of privacy”). Additionally, we have said that “the officer’s discovery, albeit with the aid of a flashlight, of the marijuana in plain view was not improper.” Accord Texas v. Brown, 460 U.S. 730, 738, 739, 103 S.Ct. 1535, 1541, 75 L.Ed.2d 502, 512 (1983) (plurality opinion) (“the use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the constitution.”) (Citations omitted). See Commonwealth v. Burton, 292 Pa.Super. 73, 77, 436 A.2d 1010, 1013 (1981).

The subsequent warrantless searches were legal because appellant consented to the search of his car and to the search of the basement where appellant resided. Commonwealth v. Hartford, 313 Pa.Super. 213, 459 A.2d 815, 818 (1983). (“With few exceptions, an intrusion into a place of privacy may not be effected absent a warrant issued based upon probable cause, and one of those exceptions is when a criminal suspect consents to the search.”) (emphasis added) (citation omitted). Accord Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed.2d 1477 (1946). Thus, appellant also is not entitled to relief on this issue.

Because we are unable to agree with appellant’s contention that the subsequent searches were tainted by the initial illegal search because as set forth above, appellant did not have a reasonable expectation of privacy in the mask on the front seat of appellant’s car which was parked in a common driveway, we must affirm.

Judgment of sentence is affirmed.

LIPEZ, J., concurs in the result.

      . The United States Supreme Court in a plurality opinion in Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502, 510 (1983), on remand 657 S.W.2d 797 (Tex.Cr.App.1983), recently stated that "the Coolidge plurality's discussion of 'plain view,’ ... has never been expressly adopted by a majority of this Court." However, even the plurality opinion in Texas, admitted that Coolidge "should obviously be the point of reference for further discussion of the issue.” Id. at 737, 103 S.Ct. at 1540, 75 L.Ed.2d at 511. Additionally, two of the Justices saw no reason to criticize Coolidge for the plain view doctrine, and three of the Justices cited Coolidge for the plain view doctrine. See generally LaFave § 7.5 Ftn. 53 (1984 Pocket Part).