author: CIRILLO, Judge.

text:
    647 A.2d 555
    COMMONWEALTH of Pennsylvania v. Larry ROBBINS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1994.
    Filed Aug. 23, 1994.

      John G. McDougall, Media, for appellant.
    Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CIRILLO, Judge.

Larry Robbins appeals from the judgment of sentence entered in the Court of Common Pleas of Delaware County. We affirm.

In June of 1990, an informant provided Officer James Reif of Upper Darby Township Police Department with information that a front-end loader and other stolen items were located on property owned by Larry Robbins. The informant also provided directions to Robbins’ home and described the home as being secluded in a wooded area.

The description of the stolen items provided by the informant matched descriptions listed in an Upper Darby police report. The directions given by the informant to Robbins’ home were corroborated by a West Goshen Township detective and a postmaster. The informant’s information was further corroborated by two helicopter fly-overs from which items matching the informant’s descriptions were viewed.

The helicopter fly-overs were conducted and photographs were taken at an altitude of approximately 500 feet. Based on their observations from the helicopter, the police obtained and executed a search warrant. While the police were on Robbins’ property, they viewed the front-end loader and trailer and seized these items. Robbins was arrested and charged with receiving stolen property.

Robbins filed a pre-trial motion to suppress all physical evidence found and seized, and any statements or admissions made by Robbins. In this motion, Robbins argued that the visual intrusion by the police from the helicopter constituted an illegal search and, thus, the evidence seized and the statements made by Robbins were inadmissible because they were “fruit of the poisonous tree.”

A suppression hearing was held and the court considered the following testimony. Appellant’s wife stated that the helicopter was approximately 90 feet above the ground and 100 feet from the rear of her home. She further testified that the noise created by the helicopter was extremely loud, caused her fear, and caused her children and dog to run all over the house.

Troopers Perone and Weidner conducted the aerial surveillance of the premises. At the hearing, Trooper Perone estimated the altitude of the helicopter was 500-600 feet above the ground, was always well above the tree-tops on the first flight, and 300 feet above the tree-tops on the second flight. Trooper Perone estimated that the lowest altitude flown was 500 feet. Trooper Weidner indicated that he routinely flies at 500-800 feet and had no recollection of being asked to fly at a lower level on this occasion. Elizabeth Flynn, who was admitted as an expert in the field of aerial photography, opined that the photographs were taken by a 35mm camera with a standard lens from an estimated altitude of 300 feet. However, her margin of error in estimation was 100-150 feet.

After reviewing the evidence, the suppression court assessed the credibility of the witnesses and found that the aerial surveillance was at an altitude of approximately 500 feet and posed no hazard to persons or property on the ground. Accordingly, Robbins’ motion to suppress was denied. On November 23, 1992, a jury found Robbins guilty of two counts of receiving stolen property. Post-verdict motions were filed and denied and Robbins was sentenced to concurrent terms of eight to twenty-four months less one day on the convictions. This appeal followed.

Robbins raises the following issues for our review:

(1) Whether the Commonwealth presented evidence sufficient to convict Appellant?

(2) Whether the state police’s use of a helicopter to corroborate an informant’s information violated Appellant’s rights under either the Fourth Amendment of the Federal Constitution or Article I, Section 8 of the State Constitution?

Robbins first argues that there was insufficient evidence presented to convict him for receiving stolen property. In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each .and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). Furthermore, it matters not whether the appellant finds a witness’s testimony lacking in credibility; such matters are solely within the province of the jury as trier of fact and, as such, will not be assailed on review by this court. Id.

The crime of receiving stolen property is defined as: § 3925. Receiving Stolen Property.

(a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

(b) Definition — As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.

18 Pa.C.S.A. § 3925. Therefore, to obtain a conviction for receiving stolen property the Commonwealth must establish beyond a reasonable doubt that the defendant knew or should have known that the property was stolen. Commonwealth v. Grekis, 411 Pa.Super. 494, 601 A.2d. 1275 (1992).

The evidence, when viewed in the light most favorable to the Commonwealth, discloses the following: Robbins was found in possession of the front-end loader and the trailer on June 7,1990,12 days after it should have been returned to the lawful owner, Modern Equipment Rental. Robbins, along with Frank Brown, his wife’s nephew, and Richard Gambetta, Brown’s friend, discussed procuring the above-mentioned equipment. According to Gambetta, Brown claimed to be able to get Robbins a discount because he was associated with M & M Landscaping, and offered to get the front-end loader for $1,000.00 for one month. M & M Landscaping regularly did business with Modern Equipment Rentals, the owner of the property. Gambetta further testified that Robbins gave Brown $1,000.00 and that Brown and he (Gambetta) went to Modern Equipment, where Brown signed a piece of paper and picked up the equipment. Brown then returned the equipment and the paper he had signed to Robbins. The signature on the paper was that of one Steve Becker, allegedly on behalf of M & M Landscaping. No one named Steve Becker has ever worked at M & M Landscaping. The property according to the rental agreement, was due back on May 26, 1990, and was rented for an amount in excess of $1,500.00, almost twice the amount Robbins had allegedly given Brown. Robbins did have a copy of this rental contract.

At trial, Robbins’ wife testified that Brown, who was supposedly working for M & M Landscaping at that time, would come by to help Robbins with work on his house “often” in an average week. At the time of the trial, Brown had not been seen or heard from for at least a year.

The reasonable inference to be derived from these facts is that Robbins either knew or should have known that the property was stolen. Even if the jury believed that Robbins had paid Brown $1,000.00, Robbins was in possession of a receipt which named Steve Becker (not Frank Brown) as the renter, which required that the equipment be returned in three weeks (not a month), and which listed a rental price of almost twice what Robbins allegedly paid. Robbins retained the equipment well past the return date as listed on the agreement, and a week beyond the period for which he allegedly thought he had rented it. Additionally, given the fact that Brown “often” was at Robbins’ house helping out, the jury could infer that Robbins knew that Brown was not working for M & M Landscaping. Furthermore, Gambetta, who was involved in procuring the property, implicated Robbins, but never mentioned Brown.

All of this evidence, considered in the light most favorable to the Commonwealth, established beyond a reasonable doubt that Robbins possessed the equipment under circumstances which permitted the jury to infer that he either knew or believed that the property was or probably had been stolen. Grekis, supra. Accordingly, Robbins’ sufficiency of the evidence claim is without merit.

Robbins next argues that in flying over his property in a helicopter and in making aerial observations therefrom, the police violated his rights under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. We disagree.

Robbins’ house is located down a long driveway off of Green Lane in Upper Darby Township. The house is in the center of a wooded area and is secluded from the street by trees. Based on the observations made by the police from a helicopter, a search warrant was issued. Robbins contends the trial court erred in denying his motion to suppress the front-end loader seized pursuant to the warrant. He claims that the use of the helicopter by the police, prior to issuance of the warrant, was conducted in a hazardous fashion, and constituted a search in violation of the Fourth Amendment. Robbins claims, therefore, that the evidence seized pursuant to the warrant should have been suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975).

In reviewing a claimed error of the suppression court in denying a defendant’s motion to suppress, we will consider only the prosecution’s evidence and so much of the defendant’s evidence as remains uncontradicted. It is, however, exclusively in the province of the suppression court to determine the credibility of the witnesses and the weight to be accorded their testimony. See Commonwealth v. Brinkley, 423 Pa.Super. 289, 620 A.2d 1226 (1993); Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982).

Our task, therefore, is to determine whether the record supports the factual findings of the suppression court, and to determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987). Appellant does not dispute the suppression court’s findings of fact. Therefore, we need only to determine the reasonableness of the court’s inferences and legal conclusions.

The Fourth Amendment protects: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.... ” U.S. Const, amend. IV. “The basic purpose of this amendment ... is to safeguard the privacy and security of individuals against arbitrary invasion by government officials.” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). Therefore, warrants are generally required before a governmental agency or official may conduct a search. See United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 3302-03, 82 L.Ed.2d 530 (1984) (stating that warrantless searches are presumptively unreasonable). The threshold question, therefore, in any Fourth Amendment inquiry is whether the conduct of the police amounted to a search. A search occurs when the government intrudes on an area where a person has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). See California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986).

In the seminal case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court set forth a two prong test to determine whether a search occurred: 1) whether a person exhibited an actual expectation of privacy; and 2) whether such an expectation was one that society is prepared to recognize as reasonable. These two elements are known as the subjective and objective tests.

Historically, courts pay little attention to the subjective prong of the Katz test. See 1 Wayne R. LaFave, Search and Seizures § 2.1(c) at 309 (2d ed. 1987). Most courts readily find that a subjective expectation of privacy exists and focus instead on the second prong; that is, whether society is willing to recognize that expectation of privacy as reasonable. Id. In making this determination, we are instructed to look at the facts and circumstances of each case. Examples of the application of the objective prong of the Katz test are legion. Compare Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993) (holding that defendant had no reasonable expectation of privacy while within an abandoned storefront); Commonwealth v. Perdue, 387 Pa.Super. 473, 564 A.2d 489 (1989) (holding that defendant did not have a reasonable expectation of privacy in garbage left under the porch of church parsonage); Commonwealth v. Cameron, 385 Pa.Super. 492, 561 A.2d 783 (1989) (finding that the defendant had no reasonable expectation of privacy within an abandoned house in which he had no ownership interest); Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185 (1988) (holding that the defendant did not have a reasonable expectation of privacy in his garage because it was an area of common access); Commonwealth v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982) (holding that defendant did not have a reasonable expectation of privacy in his room because he did not manifest an intent to exclude others) with Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993) (finding that an individual does have a reasonable expectation in closed containers left in motel room after check out); Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987) (holding that defendant had a reasonable expectation of privacy in his sunroom/greenhouse from police peering through shrubbery using specially equipped binoculars).

While most Fourth Amendment cases involve privacy interests of which there is voluminous authority to look to for guidance, cases involving aerial surveillance are decidedly more infrequent and, thus, more difficult to decipher. The information that police may obtain through aerial observation is virtually unlimited. Aerial searches open up all of a suspect’s outdoor property for police observation. A police officer scanning a suspect’s land may no more limit his survey to unlawful activity than police listening to a wiretap can limit their review to a suspect’s incriminating conversations. Furthermore, police are not required to focus on any particular suspect. Police may survey entire cities or neighborhoods falling within the officer’s field of vision. For these reasons, aerial surveillance cases are more difficult in determining whether a person has a reasonable expectation of privacy. David E. Steinberg, Making Sense of Sense-Enhanced Searches, 74 Minn.L.Rev. 563 (1990).

There are two basic types of aircraft surveillance cases: 1) fixed wing; and 2) helicopter. In Ciraolo, a fixed wing surveillance case, the Supreme Court of the United States held that if the police are where they have a right to be and view activity that is clear and visible, such actions do not amount to searches and do not, therefore, trigger protections afforded by the Fourth Amendment. The facts in Ciraolo revealed that the police were acting on an anonymous tip that Ciraolo was growing marihuana in his backyard. Because Ciraolo’s backyard was surrounded by a 6 foot outer fence and a 10 foot inner fence, the police were unable to observe the contents of his backyard from ground level. The police then flew a plane over Ciraolo’s house at an altitude of 1,000 feet— within “navigable airspace.” The Court concluded that because the police were viewing what any member of the public could view flying in the airspace above Ciraolo’s yard, or a telephone repairman on a pole overlooking the yard, that there was no search and, thus, no Fourth Amendment violation. Ciraolo, 476 U.S. at 215, 106 S.Ct. at 1813. Thus, the Supreme Court’s holding in Ciraolo allows the police, traveling in a fixed wing aircraft in public airspace, to view anything clear and visible without triggering one’s Fourth Amendment rights.

Unlike fixed wing aircraft which have determinate altitude requirements and a certain degree of inflexibility of flight, helicopters have no FAA imposed altitude restrictions and are uniquely capable of precision flight. In fact, the differences between fixed wing aircraft and helicopters are myriad. The FAA regulations provide that helicopters may be operated at less than the minimum height for fixed wing aircraft “if the operation is conducted without hazards to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the FAA administrator.” 14 C.F.R. § 91.79 (1988). Furthermore, a helicopter has many unique capabilities of which a fixed wing aircraft is lacking. Helicopters can hover over a fixed position for long periods of time, they can change their altitude and direction of flight at any time, and they are capable of landing in relatively tight quarters.

With its singular abilities, the helicopter can readily become an aerial viewing platform, reaping great benefits to law enforcement. These differences between helicopters and fixed wing aircraft, however, unwittingly ensure that the determination of whether helicopter surveillance triggers the protections afforded by the Fourth Amendment is more difficult than in fixed wing aircraft surveillance situations. The United States Supreme Court addressed these difficulties in Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1988).

In Riley, the Supreme Court had pause to determine if an individual had a reasonable expectation of privacy, which prevented the police from observing his or her backyard from a helicopter flying at 400 feet. The defendant in Riley lived in a mobile home located on five acres of property. Near the home was a greenhouse that was obscured from view by a fence, trees, and shrubs. The contents of the greenhouse, however, were visible from above because two panels of the roof were missing. As the result of an anonymous tip, a police helicopter made two passes over the property at an altitude of 400 feet. The officer viewed with his naked eyes what he thought was marijuana growing in the greenhouse. Based on the police officer’s observations and the anonymous tip, a search warrant was obtained and executed, and marijuana was found and seized. The Court held that the actions of the police officer did not constitute a search within the meaning of the Fourth Amendment. Id. at 450, 109 S.Ct. at 696.

In a plurality decision, the Court considered the total atmosphere of the case in holding that Riley’s expectation of privacy was unreasonable. Recognizing a helicopter’s unique capabilities and the fact that the FAA allows helicopters to fly at any altitude, albeit not in a hazardous manner, the Court, in making its Fourth Amendment analysis, considered a wide variety of factors, including whether the helicopter was flying hazardously at the time of the surveillance. Specifically, the Court reached the following conclusions: (1) the helicopter was not flying contrary to regulations or law; (2) there was no evidence presented that helicopter flights at 400 feet were sufficiently rare to support Riley’s claim of a reasonable expectation of privacy; (3) the helicopter did not interfere with Riley’s normal use of the greenhouse or of other parts of the curtilage; (4) no intimate details connected with the use of the home or curtilage were observed; and (5) there was no undue noise, wind, dust, or threat of injury. Riley, 488 U.S. 445, 452, 109 S.Ct. 693, 697 (1988); see also Daniel R. Hansen, Warrantless Aerial Surveillance and Florida v. Riley: The Loss of Liberty, 1990 Utah L.Rev. 407 (1990). Because of the above findings, the Court held that the observation of Riley’s backyard did not constitute a search and, therefore, did not trigger the protections of the Fourth Amendment.

In Commonwealth v. Oglialoro, 525 Pa. 250, 579 A.2d 1288 (1990), the Pennsylvania Supreme Court also had the opportunity to determine the constitutionality of a helicopter surveillance. In Oglialoro, the police received an anonymous tip that Oglialoro was growing marijuana in his barn. The police, in an attempt to corroborate the information, hovered over Oglialoro’s barn at an altitude of 50 feet for approximately 15 seconds and made a total of three or more passes over the property, lasting approximately five minutes. Oglialoro’s wife was present in the home at the time of the fly-overs. She testified that she experienced various sensations caused by the helicopter’s proximity, such as loud noise, and vibration of the house and windows. Id. at 254, 579 A.2d at 1292.

The Oglialoro Court applied many of the factors set forth by the United States Supreme Court in Riley. Id. at 261, 579 A.2d at 1294. First, the Court inquired whether the helicopter was flying contrary to law or regulation. In so doing, the Court looked to the FAA’s regulations that permit helicopters to fly anywhere provided not in a hazardous manner. 14 C.F.R. § 91.79(d). While the Court did not consider the FAA regulations as defining the reach of the Fourth Amendment, they did see the regulations as a reference designed to protect people on the ground. Oglialoro, 525 Pa. at 262, 579 A.2d at 1295. Consequently, the Court, referring to the FAA regulations, addressed the question whether the helicopter was operated in a hazardous manner.

The Court held that the helicopter flying at 50 feet “above” Oglialoro’s property, hovering for fifteen seconds, and then making three passes over a five minute period, coupled with Oglialoro’s wife’s unrebutted testimony of the undo noise, wind, and vibration was sufficient evidence to endanger people or property on the ground. Because the police operation of the helicopter was egregiously hazardous, the Court found that this, alone, was enough to find the conduct of the police unreasonable and therefore suppressed the evidence. Our learned Justices unambiguously stated:

We believe that such evidence is sufficient to establish that the helicopter’s presence at 50 feet above the barn represented a hazard to persons and property on the ground and that the conduct of the police in flying at this level was unreasonable. We perceive in the testimony of the wife that the surveillance was, in fact, intrusive and that flying the helicopter at this low level created a risk of harm to her and her property during the search.

Id. at 262, 579 A.2d at 1295.

In essence, therefore, in determining whether helicopter surveillance in Oglialoro amounted to a search protected by the Fourth Amendment, the Court applied a traditional Katz analysis; that is, whether Oglialoro’s expectation of privacy is one that society is willing to accept as reasonable. In making this determination, the Court looked to the totality of the circumstances surrounding the surveillance and considered such factors as: whether the helicopter was flown in a hazardous fashion; whether there was undue noise, wind, dust, or threat of injury; the altitude at which the helicopter was flown; the amount of time the helicopter hovered over the property; the overall time the police surveyed the property; and the relative frequency that helicopters normally fly over the region. Oglialoro, 525 Pa. at 261, 579 A.2d at 1294 (1990) (citing Florida v. Riley, 488 U.S. at 451, 109 S.Ct. at 697, 102 L.Ed.2d 835 (1989)).

A number of jurisdictions have considered additional factors in evaluating whether an individual has an objectively reasonable expectation of privacy from aerial observation. These factors include: the time of day, the height of the helicopter and whether it interfered with the individuals use of his property, the character of the area (or object) which was the subject of the surveillance, whether the observation revealed intimate details connected with the use of his home or curtilage, and whether the police had a right to be where they were. Henderson v. People, 879 P.2d 383 (Colo.1994); Commonwealth v. One 1985 Ford Thunderbird Auto, 416 Mass. 603, 624 N.E.2d 547 (1993); People v. McKim, 214 Cal.App.3d 766, 263 Cal.Rptr. 21 (1989).

In the case at hand, after looking at the totality of the circumstances surrounding this case and applying the factors as set forth in Riley and adopted by Oglialoro, we find that the police use of the helicopter did not violate an expectation of privacy “that society is prepared to recognize as reasonable.” Katz, 389 U.S. at 361, 88 S.Ct. at 516 (1967) (Harlan, J., concurring).

First, unlike Oglialoro, where the police were at an altitude of 50 feet and made three passes over the property over a five minute period, the helicopter in the instant case never flew below 500 feet and never flew over Robbin’s property. On the contrary, according to the trial court’s findings, the helicopter flew at an altitude of 500 feet and was not operated in a hazardous fashion. Therefore, according to the FAA regulations, the helicopter was in navigable airspace, 14 C.F.R. § 91.79(c), and was operated lawfully. 14 C.F.R. § 91.79(d).

Second, Robbins did not present any evidence that helicopters flying at 500 feet were sufficiently rare in his area to support his claim of a reasonable expectation of privacy. In an age where private and commercial flight in the public airways is routine, it is unreasonable for Robbins to expect that something the size of a front-end loader was constitutionally protected from being observed with the naked eye from an altitude of 500 feet. Because there is considerable public use of airspace at altitudes of 500 feet and above, and because Robbins introduced no evidence to the contrary, Robbins’ expectation that his curtilage was protected from naked eye aerial observation from that altitude was not a reasonable one.

Additionally, the observation did not interfere with Robbins’ use of his property and posed only a very limited degree of intrusiveness. The helicopter made only two passes over Robbins’ property over a course of a few minutes and never passed below an altitude of 500 feet. Furthermore, there were no intimate details observed, and there was no credible evidence of undue noise, wind, dust, or threat of injury. Thus, after thorough scrutiny of all the facts and circumstances of this case and application of the above factors, we find that the operation of the helicopter was not a search and, as such, did not trigger Robbins’ Fourth Amendment rights.

The judgment of sentence is hereby affirmed.

      . This doctrine requires the suppression of all evidence derived from the government’s violation of an individual’s rights under the Fourth Amendment. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).

      . 18 Pa.C.S.A. § 3925(a).

      . The Katz test has long been employed by this Commonwealth as the standard in Fourth Amendment cases. See, Commonwealth ex rel. v. Rundle, 432 Pa. 466, 470, 248 A.2d 197 (1968); Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987).

      . "Navigable airspace” is defined as that altitude above the minimum prescribed by the Civil Aeronautics Board. 49 U.S.C.A.App. § 1301(29).

      . The Court recognized that helicopters may be operated at less than the mínimums for fixed-wing aircraft "if the operation is conducted without hazard to persons or property on the surface.” 14 C.F.R. § 91.79 (1988). However, the Court did not specifically state its reasoning why they found the helicopter was not operated in a hazardous manner. Because the Court stated that the helicopter did not interfere with Riley’s use of his land and did not cause any undo noise, wind, or threat of injury, this implies that the Court weighed these factors in determining that the helicopter was not operated in a hazardous manner.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    647 A.2d 562
    Mary Ann REITER and Robert Reiter, Appellants v. John MANNA, individually, and the New Castle News Company, a corporation, a/k/a New Castle News, Appellees. Mary Ann REITER and Alfred V. Papa, Jr., co-executors of the Estate of Alfred V. Papa, deceased, Appellants v. John MANNA, individually, and the New Castle News Company, a corporation, a/k/a New Castle News, Appellees.
    Superior Court of Pennsylvania.
    Argued May 25, 1994.
    Filed Sept. 1, 1994.

      Timothy J. Schweers, Pittsburgh, for appellants.
    Troy Rivetti, Pittsburgh, for appellees.
    Before BECK, HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

In these consolidated appeals, the trial court granted judgment notwithstanding the verdict (j.n.o.v.) in favor of Appellees John Manna (Manna) and The New Castle News Company, a/k/a New Castle News (New Castle News) in a defamation action. We affirm.

The instant action was instituted as a result of a newspaper headline and article published in the New Castle News on June 10, 1987. Earlier that year, Appellant Mary Ann Reiter was a candidate in a primary election for the office of district justice in Lawrence County, Pennsylvania, and Patricia Allen (Allen) was one of her opponents. Allegedly, on two occasions, Allen’s campaign signs had been placed on property owned by Albert V. Papa, now deceased, and on each occasion the signs were removed, once by Papa and once by Appellant Robert Reiter. Allen responded by contacting the Lawrence County District Attorney’s office, which refused to take legal action. As a result, Allen petitioned the court for a hearing to determine whether the District Attorney should institute the appropriate criminal action. On May 5, 1987, Appellee New Castle News reported that the court had scheduled a hearing date to address Allen’s petition. At the conclusion of the hearing, held June 9, 1987, the court determined that the District Attorney did not abuse his discretion because the complaint was essentially a civil matter. The next day, Appellee New Castle News printed the following headline and article:

JUDGE: SIGN THEFT IS A CIVIL COMPLAINT

Judge George P. Kiester ruled yesterday that District Attorney William M. Panella acted properly in disallowing the filing of a criminal complaint involving the alleged theft of campaign signs.

Patricia Allen, a candidate in the primary election for district justice, petitioned the court in May after the district attorney rejected her filing of a criminal complaint. She contended that Alfred Papa and Mary Ann and Robert Reiter had removed her campaign signs from a Shenango Township property. Mrs. Reiter was also a candidate for district justice in the May 19 primary.

Kiester, a senior judge from Butler County, held a hearing yesterday in the Lawrence County Court of Common Pleas. Following the session, he issued two orders, one for Papa and the other for Mary Ann and Robert Reiter.

The orders state that Kiester finds that “there has been no abuse of discretion by William M. Panella in disapproving the filing of a criminal application on the application of Patricia Allen.”

Judge Kiester also said that Allen’s complaint “was civil in nature, rather than criminal.”

He also ordered that the cases as captioned, “Commonwealth of Pennsylvania vs. Alfred Papa and Mary Ann and Robert Reiter” be stricken.

Mrs. Reiter won the Democratic nomination for district justice and will face David Rishel, the Republican nominee, in the November election.

While Appellee John Manna authored the article, in accordance with customary practice, another newspaper employee, Walter T. Kolodziej, drafted the headline.

On June 11, 1987, following a conversation between Papa, Appellee Manna and two other employees of Appellee New Castle News, Appellee New Castle News published the following correction article which appeared on page 1 and which was continued on page 3:

HEADLINE WAS INCORRECT

A headline on page 1 of yesterday’s New Castle News which read “Judge: Sign theft is a civil complaint” was incorrect.

The word “theft” should not have appeared in the headline. It should have read “Judge: Sign case is a civil complaint.”

The hearing dealt only with whether the court should approve the filing of a private criminal complaint and not with whether any signs were removed.

Senior Judge George P. Kiester of Butler County issued two orders after the hearing. The two orders contain the same wording with one exception. The only difference is that one concerns Alfred Papa and the other Mary Ann and Robert Reiter. [The] [fallowing is Judge Kiester’s order:

“After hearing, the court finds that there has been no abuse of discretion by (district attorney) William M. Panella in disapproving the filing of a criminal application on the application of Patricia Allen. Upon examination of the [to page 3] record, the court concludes that the complaint of Patricia Allen was civil in nature, rather than criminal. [”]

“It is the order of the court that the case as captioned, Commonwealth of Pennsylvania versus Alfred Papa, be stricken and that the matter be recaptioned, In Re: Application of Patricia Allen.”

Len Kolasinski, executive editor of the New Castle News, said today, “We apologize to attorney Papa and Robert Reiter and Mary Ann Reiter for any misinterpretation by the public which the headline may have caused.”

Appellants then filed this action seeking both compensatory and punitive damages. In answer to special interrogatories, the jury found, among other things, that the article in question was defamatory as to each Appellant, that Appellees Manna and New Castle News were negligent, and that they acted intentionally or with a reckless disregard for the truth or falsity of the publication. Thereafter, the jury awarded compensatory damages and punitive damages to Appellant Mary Ann Reiter in the aggregate amount of $250,000, and the remaining Appellants each received $60,000 in punitive damages. Appellees then moved for j.n.o.v., asserting, among other things, that the evidence presented by Appellants did not support the jury’s finding that actual malice was proven by clear and convincing evidence. The trial court granted the motion on this basis. This appeal followed, in which the sole issue raised is whether the court abused its discretion in granting j.n.o.v.

Our standard of review is well-settled:

In reviewing a motion for judgment n.o.v., “the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Broxie v. Household, Finance Company, 472 Pa. 373, 380, 372 A.2d 741, 745 (1977). See also Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970) and Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979). Moreover [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. See Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980) and Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970).

McDermott v. Biddle, 436 Pa.Super. 94, 104, 647 A.2d 514, 519 (1994) (quoting Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992).

With regard to proof of actual malice, this Court has stated:

“The burden of proving ‘actual malice’ requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement.” Bose Corp. v. Consumers Union of United States, Inc., [466 U.S. 485, 511, n. 30, 104 S.Ct. 1949, 1965 n. 30, 80 L.Ed.2d 502 (1985) ].

Reckless disregard for the truth, i.e. “actual malice”, “ ‘is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.’ ” Frisk v. The News Company, 361 Pa.Super. 536, 543, 523 A.2d 347, 350 (1986), allo[c]. denied, 515 Pa. 614, 530 A.2d 867 (1987), quoting St. Amant v. Thompson, [390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968)]....

“Mere negligence or carelessness is not evidence of actual malice”. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 519, 546 A.2d 639, 645 (1988) (emphasis added). “A defendant’s failure to verify his facts may constitute negligence, but does not rise to the level of actual malice. McDowell v. Paiewonsky, 769 F.2d 942, 951 (3rd Cir.1985). That is, while it arguably may be negligent not to check independently the veracity of information before publication, this fault does not rise to the level of actual malice.” Smith v. A Pocono Country Place Property Owners Association, Inc., [686 F.Supp. 1053, 1061 (1987) ]....

Oweida v. Tribune-Review Publishing Company, 410 Pa.Super. 112, 135-36, 599 A.2d 230, 242-43 (1991), alloc. den., 529 Pa. 670, 605 A.2d 334 (1992). Moreover, in a defamation action, “[t]he sufficiency of the evidence to support a jury’s finding of actual malice is a question of law.” Fitzpatrick v. Philadelphia Newspapers, Inc., 389 Pa.Super. 438, 443, 567 A.2d 684, 687 (1989), alloc. den., 525 Pa. 618, 577 A.2d 890 (1990) (citing Harte-Hanks Communications, Inc. v. Connaughton, [491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)). Thus, this Court “ ‘is to make an independent examination of the evidence adduced to determine if it was constitutionally sufficient to warrant a finding by the jury of actual malice, ...’” Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 516, 546 A.2d 639, 643-44 (1988), alloc. den., 522 Pa. 576, 559 A.2d 37 (1989) (quoting Sprague v. Walter, 357 Pa.Super. 570, 589-90, 516 A.2d 706, 716-17 (1986)). This Court has recently clarified this task:

Thus, the reviewing court is called upon to review all the relevant evidence, and must evaluate the findings of underlying fact that led the jury to the ultimate conclusion that the defendant acted with actual malice. In reviewing findings of underlying fact, the reviewing court does not exercise its own independent judgment.... Rather, as. the Court had previously stated in Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), the reviewing court must ascertain whether the jury’s conclusion is “clearly erroneous” and may only so conclude “when although there is evidence to support it, the reviewing court, on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 500 [104 S.Ct. at 1959] (emphasis in original). See also [Curran v. Philadelphia Newspapers, 376 Pa.Super. 508, 520, 546 A.2d 639, 646 (1988) ].

McDermott, supra, 436 Pa.Super. at 109, 647 A.2d at 521-522.

Appellants argue that the trial court abused its discretion in granting j.n.o.v. because they proved actual malice by producing evidence that: 1) showed that the journalism of the several Appellees was grossly inadequate; 2) the several Appellees pursued a sensationalistic approach to the story; and 3) the several Appellees entertained serious doubts as to the truth of their statements prior to publication of the article in question. Finding no merit to these claims, we affirm the order of the court granting j.n.o.v. in favor of the several Appellees.

The parties do not dispute that Appellant Mary Ann Reiter was a public figure such that she was required to prove by clear and convincing evidence that Appellees acted with actual malice. With regard to the remaining Appellants, we note that a private figure plaintiff cannot recover punitive damages unless he or she demonstrates actual malice by clear and convincing evidence. Oweida, supra. Moreover, we note that in determining whether there was clear and convincing evidence of actual malice, the statements must be read in context. See generally, Baker v. Lafayette College, 516 Pa. 291, 532 A.2d 399 (1987). Thus, in the present case, the headline and article must be read together.

As noted above, in order to prove malice, a plaintiff must demonstrate by clear and convincing evidence that the defendants realized that a statement was false or possessed a reckless disregard for the truth, i.e., entertained serious doubts as to the truth of the statement but nonetheless published the statement. Oweida, supra. In arguing that they established a reckless indifference to the accuracy of the article in question, Appellants cite to the deposition of Appellee John Manna wherein he admitted that he failed to attend the hearing upon which the article was based, that he obtained a copy of the court order sometime after the hearing, that he had no recollection of reading the order before writing the article, that he knew that the judge had ruled in favor of Appellants and that the judge had ruled there was no crime, and acknowledged that he used the words “alleged theft” in quoting a document that contained no reference whatsoever to those words. As additional support for this assertion, Appellants cite the deposition testimony of Walter T. Kolodziej, the copy editor who wrote the headline, wherein he stated that he made no effort to verify the report with its author and conducted no inquiry whatsoever regarding the story prior to printing it. Moreover, assert Appellants, Mr. Kolodziej testified that he did not think it necessary to read the order of court prior to the publication of the article’s headline. Given these admissions, Appellants conclude that they established that the reporting at issue represented a complete lack of journalistic integrity. Thus, Appellants claim that, “ ‘highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers, ... is evidence of recklessness amounting to actual malice.’ ” Appellants’ Brief at p. 10, citing Curtis Publishing v. Butts, 388 U.S. 130, 157-58, 87 S.Ct. 1975, 1992-93, 18 L.Ed.2d 1094 (1967) (emphasis added).

In Curtis, the petitioner, well-known in the coaching ranks, sued the defendant newspaper over an article that it published accusing him of fixing a college football game. In his plurality opinion, Justice Harlan suggested that when the case involves a public figure rather than a public official, the public figure need only make a showing as quoted by Appellant above. However, the United States Supreme Court later stated:

This proposed standard, however, was emphatically rejected by a majority of the Court in favor of the stricter New York Times actual malice rule. See [Curtis,] 388 U.S., at 162 [87 S.Ct. at 1995] (opinion of Warren, C. J.); id., at 170 [87 S.Ct. at 1999] (Black, J., dissenting); id., at 172 [87 S.Ct. at 2000] (Brennan, J., dissenting). . Moreover, just four years later, Justice Harlan acquiesced in application of the actual malice standard in public figure cases, see Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 69-70 [91 S.Ct. 1811, 1832-33, 29 L.Ed.2d 296] (1971) (dissenting opinion), and by the time of the Court’s decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 [94 S.Ct. 2997, 41 L.Ed.2d 789] (1974), the Court was apparently unanimously of this view. Today, there is no question that public figure libel cases are controlled by the New York Times standard and not by the professional standards rule, which never commanded a majority of this Court.
It also is worth emphasizing that the actual malice standard is not satisfied merely through a showing of ill will or “malice” in the ordinary sense of the term. See Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 [88 S.Ct. 197, 19 L.Ed.2d 248] (1967) (per curiam); Henry v. Collins, 380 U.S. 356 [85 S.Ct. 992, 13 L.Ed.2d 892] (1965) (per curiam). Indeed, just last Term we unanimously held that a public figure “may not recover for the tort of intentional infliction of emotional distress ... without showing ... that the publication contains a false statement of fact which was made ... with knowledge that the statement was false or with reckless disregard as to whether or not it was true.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 [108 S.Ct. 876, 882, 99 L.Ed.2d 41] (1988). Nor can the fact that the defendant published the defamatory material in order to increase its profits suffice to prove actual malice. The allegedly defamatory statements at issue in the New York Times case were themselves published as part of a paid advertisement. [New York Times Co. v. Sullivan ], 376 U.S. [254], at 265-266 [84 S.Ct. 710, at 718-719, 11 L.Ed.2d 686 (1964) ]. If a profit motive could somehow strip communications of the otherwise available constitutional protection, our cases from New York Times to Hustler Magazine would be little more than empty vessels. Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” St. Amant v. Thompson, 390 U.S. 727, 730 [88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), we have made clear that the defendant must have made the false publication with a “high degree of awareness of ... probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74 [85 S.Ct. 209, 216, 13 L.Ed.2d 125] (1964), or must have “entertained serious doubts as to the truth of his publication,” St. Amant, supra, [390 U.S.] at 731 [88 S.Ct. at 1325],

Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666-67, 109 S.Ct. 2678, 2685-86, 105 L.Ed.2d 562 (footnote omitted).

Upon our constitutionally mandated independent review of the record, we conclude that Appellants did not present clear and convincing evidence of actual malice. In so concluding, we adopt the following rationale of the trial court:

It is uncontroverted that the June 9, 1987, hearing was not conducted for the purpose of determining the substance of the allegations made by Allen. Rather, its purpose was narrowly confined; viz, was the Allen complaint civil or criminal in nature, leaving unresolved the ultimate issue regarding the complaint. Since there was no adjudication at that juncture of the proceeding regarding Allen’s allegations of theft, the [several Appellees] cannot be legally-charged -with a mind set which demonstrates in any legally recognizable fashion that they actually knew that a theft had not occurred yet proceeded to publish a story which" related that [Appellants] had indeed pilfered the campaign signs. To conclude that a reading of both the headline and story in context together state that [Appellants] committed a crime at a time when the [several Appellees] only knew that [Appellants’] conduct would be addressed by civil law standards places a rigid construction on the publication----
Nor is the evidence sufficient here, when measured by a clear and convincing standard, to establish that the [several Appellees] entertained serious doubts regarding the truth of the publication. At the most, the headline standing alone contained an erroneous statement and represented an inaccurate description of the story regarding the hearing before Judge Kiester and was not the product of a calculated or deliberate falsehood.
An examination of the record here clearly reveals that the conduct of the [several Appellees] rises only to the level of negligence, carelessness, or bad judgment which, when measured by the standards addressed in this Opinion, is patently insufficient to prove the recklessness needed to support the conclusion that the [several Appellees] entertained serious doubts regarding the truth of the publication.

Trial Court Opinion, 12/10/93, at pp. 10-11, 1993 WL 643376. As noted above, mere negligence or carelessness in failing to verify facts prior to publishing is not evidence of actual malice. Oweida, supra. Our review of the record reveals this is the most that occurred in this case. The article in question merely reported the events which occurred at a judicial proceeding. While the headline did read “sign theft”, it cannot be found to be evidence of actual malice when read in conjunction with the accompanying article. Thus, j.n.o.v. was properly granted.

Order affirmed.

      . Appellee Manna testified at trial and was cross-examined as to his earlier deposition testimony. Kolodziej was not called to testify by any party, but his deposition was read into evidence by Appellants' counsel.

      . We also find meritless Appellants' argument that they established actual malice by proving that Appellees Manna and New Castle News pursued a sensationalistic policy. This claim finds little support in the evidence of record. The sole instance relied upon by Appellants is found in the deposition testimony of Mr. Kolodziej, wherein he stated to Appellants' counsel: “You as an attorney and I as a journalist know that the word ‘alleged’ does not save anybody from anything.” Deposition of Walter Timothy Kolodziej, 11/22/89, at pp. 9-10. We cannot agree with Appellants that this isolated statement clearly and convineingly proves that Appellees Manna and New Castle News "deliberately adopted a single-minded, exploitative approach [to] its publication.” Appellants’ Brief at p. 11. Moreover, as noted above, a claim that an article was published in a desire to increase circulation of the newspaper does not establish actual malice. Harte-Hanks, supra.


author:
DEL SOLE, Judge.
      McEWEN, Judge,

text:
    647 A.2d 568
    COMMONWEALTH of Pennsylvania, Appellant, v. Curtis SIMMONS.
    Superior Court of Pennsylvania.
    Argued May 12, 1994.
    Filed Sept. 12, 1994.

      Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Mitchell S. Strutin, Philadelphia, for appellee.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge.

The Commonwealth takes this appeal from the trial court’s order granting Appellee, Curtis Simmons, a new trial due to his counsel’s failure to request a cautionary Kloiber instruction. See Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954).

The Pennsylvania Supreme Court in Kloiber directed that a jury should be warned that identification testimony must be received with caution where it is doubtful because:

the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identification have been weakened by qualification or by failure to identify defendant on one or more occasions.

Id. at 424, 106 A.2d at 826-827.

The Commonwealth argues that a Kloiber instruction was not warranted in this case because the witness who testified that he saw Appellee flee the scene of the crime was acquainted with Appellee and was certain in his identification of Appellee. It further submits that counsel was not ineffective for failing to seek this charge because counsel was pursuing an alternative strategy which was designed to demonstrate that the witness was lying in an attempt to frame Appellee, and not that the witness was mistaken in his identification of Appellee at the scene.

Central to a discussion of this issue is the testimony of the witness. At the preliminary hearing the witness testified that he saw Appellee and another man flee from the “shed” door of the victim’s property. At trial the witness testified that he was mistaken and that from the location where he stood at the time of the crime, he was able to see Appellee and another flee from the “side” door of the property. An investigator who examined the scene and took photographs to present in court stated that the witness would not have been able to see anyone leaving the “shed” door from the location at which he claimed to have been standing.

The Commonwealth points to this testimony in support of its position that a Kloiber instruction was unwarranted because the defense theory at trial was not that the witness made a mistake when identifying Appellee, but that the identification testimony was wholly fabricated. The Commonwealth argues that “counsel reasonably chose to steer clear of Kloiber and an ‘honest mistake’ defense in favor of a credibility defense.” What the Commonwealth ignores are counsel’s statements to the court with respect to the charge, her misapprehension concerning it, and the evidence which would support it.

At the hearing held in response to post-trial motions, defense counsel was asked to explain her reasoning to the court. She offered the following:

My impression of a Kloiber charge that it is appropriate where there has been a prior failure to. identify a defendant, and where identification is in issue, because of either failure to identify a defendant in a lineup, photo array or whatever.

The thrust of my defense as far as Mr. Simmons was concerned was that this witness Frederick Johnson was simply fabricating his testimony as to having seen Mr. Simmons run from the scene of the crime.

What counsel failed to appreciate, and what is critical to the facts of this case, is that a Kloiber charge must not only be given where a witness has failed to previously identify a witness, but also where the witness was not in a position to clearly observe the assailant. Commonwealth v. Kloiber, Id. The Commonwealth argues however, that the witness’ trial testimony does away with concerns regarding identity which would be in issue if one were to concentrate on the different testimony the witness offered during the preliminary hearing. Although there was testimony that the witness could not have observed anyone leaving the “shed” door, as he had testified during the preliminary hearing, the Commonwealth reminds us that the witness later repudiated, and at trial stated that the assailants were fleeing from the “side” door, not the “shed” door.

The Commonwealth’s argument must fail because under either version of the witness’ testimony, a Kloiber charge was warranted. There was testimony offered at trial that the shed door could not be seen at all from the location at which the witness claimed he was standing at the time of the crime, and there was evidence that a person leaving from the side door could not be clearly seen. A defense witness, an investigator, testified at trial that from the “best vantage point” of the location described by the witness as the place where he was standing, the view would be partially obstructed by a railing or pole, and although the side screen door could be observed, a view of anyone leaving that door would be further obstructed by the direction in which the door opens. The trial court further noted that judging from the photographs of the location submitted into evidence, the witness’ observations were made from a distance substantially greater than twenty feet, the distance which concerned the court previously in the case of Commonwealth v. McKnight, 307 Pa.Super. 213, 453 A.2d 1 (1982).

The trial court properly relied on McKnight, which in many ways is surprisingly similar in factual background to this case. In McKnight a witness was driving home from work when he saw three men backing out of a bar pulling off masks, one of whom was carrying a shotgun. The witness testified at trial that he recognized the three men and knew the nicknames of two of these men. In a footnote in the Superior Court’s decision it is noted that the witness failed to supply the names of these three individuals to the police when he first spoke to them but he did so three days later, the same day he called the police to say that he had just shot someone and the police were outside his house. In considering a claim that counsel was ineffective for failing to request a Kloiber charge, the court remarked that it was clear from the witness’ testimony “that his opportunity for observation was not ideal. He saw them from behind and at a distance of approximately twenty feet.” Id., 307 Pa.Super. at 216, 453 A.2d at 2. The court held that the trial counsel could have had no reasonable basis for failing to request an instruction that the witness’ testimony should be received with caution. “It is well-established that where there is evidence of record upon which a jury could find that the opportunity for positive identification was not good, a defendant is entitled to a Kloiber instruction.” Id. at 218, 453 A.2d at 3.

The witness in this case first denied any knowledge of the incident when questioned by police, but later after being accused of being involved in the crime, he identified Appellee and a co-defendant by their nicknames. As in McKnight the evidence presented at trial demonstrated that the witness had a poor opportunity to observe the assailants. He was more than twenty feet away, and his view would have been obstructed by a pole and the opening of a screen door.

McKnight is also similar in that appellate counsel there chose to argue that trial counsel was not ineffective since he was pursuing a different theory, that the witness fabricated his account in order to maliciously implicate appellant because of ill-will. The court rejected this argument and held:

We find that appellant’s trial counsel could have had no reasonable basis for failing to request an instruction that Mr. Duld’s identification testimony should be evaluated with caution. If, as the Commonwealth suggests, he neglected to do so because he chose to rely on a theory that the whole story was fabricated out of malice toward the defendants, we find that decision to have been unreasonable. Appellant was clearly not required to choose one theory over the other. There was evidence of record demonstrating [the witness’] poor opportunity to observe. Failing to request a cautionary instruction, therefore, had no reasonable basis.

Id. at 218, 453 A.2d at 3-4.

We likewise find that a cautionary instruction was warranted in this case where in addition to evidence of fabrication on the part of the witness there was also evidence that the witness’ opportunity to observe was poor. The trial court noted that the jury was free to accept or reject the witness’ explanation for the discrepancy between his trial and preliminary hearing testimony. As the court stated: “If they reject it, there was clearly sufficient evidence to allow them to conclude that the witness couldn’t have seen the defendants fleeing, and that if he did, his view was ‘distant’ and/or obstructed.” We further find that a failure to request this instruction was clearly prejudicial since this witness was “the only witness who tied the defendant to the scene.” Trial court opinion at 3. Accordingly, we find no error on the part of the trial court for directing that a new trial be ordered in this case.

Order affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting.

Appellant and his co-defendant, Marcus Johnson, were both found guilty of murder in the second degree, conspiracy, burglary, and two counts of robbery. While I salute my distinguished colleagues of the majority and the learned trial judge for the fervent sense of fairness that leads them to conclude that the omission of the Kloiber instruction required the award of a new trial to appellant, I am compelled to the conclusions that appellant was justly served by the trial and that justice was well served by the verdict of guilt. Thus, I am precluded from participation in the ruling that appellant must be tried anew. Simply put, the failure of the trial judge to deliver a cautionary identification instruction, whether viewed as judicial omission or counsel ineffectiveness, did not compose Kloiber error, and was certainly not reversible error.

The Pennsylvania Supreme Court in Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954), instructed:

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution — indeed the cases say that “‘his [positive] testimony as to identity may be treated as the statement of a FACT Commonwealth v. Ricci, 161 Pa.Super. 193, 195, 54 A.2d 51, 52; Commonwealth v. Sharpe, 138 Pa.Super. 156, 159, 10 A.2d 120. For example, a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi. Commonwealth v. Pride, 143 Pa.Super. 165, 167, 18 A.2d 879; Commonwealth v. Saldutte, 136 Pa.Super. 52, 56, 7 A.2d 121; Commonwealth v. Ricci, 161 Pa.Super. 193, 54 A.2d 51, supra; Commonwealth v. Tracey, 130 Pa.Super. 15, 196 A. 549; Commonwealth v. Lindner, 133 Pa.Super. 196, 2 A.2d 518; Commonwealth v. Sharpe, 138 Pa.Super. 156, 10 A.2d 120, supra.

On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with CAUTION.

Commonwealth v. Kloiber, supra, 378 Pa. at 422-26, 106 A.2d at 826-827 (emphasis added). Scrutiny of the charge to the jury reveals that the trial court pursued a straight line course with regard to the issue of identification since it refrained both from suggesting to the jury that the identification had been the subject of such evidence as to establish identification of appellant as fact, and refrained, as well, from suggesting to the jury that the identification evidence should be received with caution. The decision of the trial judge to so refrain was surely — in view of the stature of the trial judge — a consequence of sound instinct and extended reflection. Thus, the decision should not be subjected to post-verdict hindsight of new counsel and a judicial misgiving which exceeds scrupulosity.

Two particular elements of this case dominated the extended reflection inspired by the prominence of the judges who would grant appellant a new trial, and impel me to the conclusion that the omission of the Kloiber instruction was not error and was, in any event, certainly not prejudicial error. First, the challenged identification was the subject of intense cross-examination so that the jury itself had ample basis for such reservations as beset the trial judge, but the jury proceeded, nonetheless, in unanimous fashion, of course, to their verdict of guilt. Second, the claim of appellant that the eyewitness testimony was not positive rings rather hollow in view of the testimony of trial counsel, at the evidentiary hearing, that the lineup in which appellant was to appear was cancelled because appellant told counsel, “I know this guy [the eyewitness] and he knows me.” The concerned reflection provided this appeal inspired, as well, recollection of thoughts expressed a decade ago, also in dissent. Those notions, while presented in a civil case, are, nonetheless, surely relevant to the instant decision of the trial judge to undo the verdict of the jury that appellant was guilty of murder and robbery:

The founders concluded that a band of the citizenry — peers, says the Magna Carta — is naturally suited to the task of resolving factual disputes, whether the difference in testimony be innocent or influenced by personal interest; in addition, of course, it is an obvious and certain fact that the court room cause — whether it be of an accused or of a litigant — is, if not prudently never left to the sovereign, always more wisely entrusted to the people than to the government or any of its branches.

Once we acknowledge that the value of the jury system is not mere premise but fact, it naturally follows that the verdict of a jury should be considered to be controlling and final. While it is undisputed that a safety valve is necessary and that a trial judge should be able to reject a-verdict, that safety valve should be triggered only when there is a gross disparity between the verdict and the evidence or there has been gross and harmful error. Neither of those tests are here met.

The fundamental purpose of the instructions by a court is to express to the jury in general, survey fashion a basic outline of the applicable principles of law so that the jury might have the benefit of certain essential rules as the members assort the testimony, reflect upon the evidence and assemble a verdict____ The most able of trial counsel will in a candid moment concede that the true value of the charge is the fertile field provided for assertion of error during appellate review rather than the guidance and direction sought to be supplied to the jury. If the charge of the court is to achieve the goal of assisting the jury and is not to be considered as a credit balance available for redemption in the event of an adverse verdict, then a verdict should be final, absent a gross shortcoming in the trial — specifically, as earlier noted, unless there is a gross disparity between the verdict and the evidence or there has been gross and harmful error.

In essence, I am of a mind that both the trial judge and the jury performed quite well and that, therefore, the verdict should stand.

Saylor v. Rose, 319 Pa.Super. 560, 570, 466 A.2d 686, 690-691 (1983) (McEwen, J., dissenting) (emphasis in original).

And so it is that I urge that the order granting appellant a new trial be reversed.

      . The co-defendant of appellant in a statement to the police implicated appellant as the individual who planned the robbery and carried out the beating of the murder victim. The police officer testified at the trial regarding the statement of the co-defendant, but all reference to appellant was redacted. The trial judge cautioned the jury as follows:
      You may consider that [the confession of Marcus Johnson which also implicated appellant as a perpetrator and the actual killer] only against Marcus Johnson, to the extent that you accept his testimony. You may not at this point consider it as any evidence at all against Mr. Curtis Simmons, nor may you speculate at all as to how this statement pertains to Mr. Curtis Simmons.

      . As trial counsel testified at the post-verdict evidentiary hearing: THE COURT: ... Initially you said that you had information that your client knew the witness Johnson, Frederick Johnson.
      THE WITNESS [TRIAL COUNSEL]: Oh, yes. That was told to me by Mr. Simmons well before even the preliminary hearing.
      THE COURT: And that was the reason you didn’t pursue a lineup motion, there was no sense?
      THE WITNESS: A lineup was held as to one witness or the purpose of it if was to have Mr. Morris, who was the exterminator, who was present at the time of the incident, and that’s why we wanted a lineup for him. And he, in fact, did not identify anyone at the lineup, either my client or anybody. He was unable to make an identification. The Commonwealth brought in Frederick Johnson that evening at the Detention Center and I had had a prior conversation with Mr. Simmons and he was quite candid. He said I know this guy and he knows me, so I had told the detective not to bother to have him in the lineup, (emphasis supplied)
      And, you know, there was no point in disputing whether he could make an identification. It wouldn't because of a lineup or a photo array.
      THE COURT: It was because of the motive to lie from your perspective?
      THE WITNESS: Motive to lie was, yes. It is my feeling I would request a Kloiber charge where people Eire strangers and there has been a misidentification at one point. But that wasn't really the factual pattern in this case.


author: DEL SOLE, Judge:

text:
    647 A.2d 573
    Barbara ZITO, and Joseph Zito, her husband, Appellants, v. MERIT OUTLET STORES and Bernard Spain and Murray Spain, Partners t/a Spain’s Gifts, and John Doe (Fictitious) Jointly, Severally, or in the Alternative, Appellees.
    Superior Court of Pennsylvania.
    Argued May 12, 1994.
    Filed Sept. 12, 1994.

      Sharon K. Galpern, Philadelphia, for appellants.
    James B. Corrigan, Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

In this appeal, Barbara and Joseph Zito challenge the grant of a compulsory non-suit in favor of Merit Outlet and Bernard and Murray Spain, and the imposition of sanctions in the amount of $1,250.00. We affirm in part and reverse in part.

At trial, Mrs. Zito testified that she was shopping in the Appellees’ store. Appellant described the store as “winding and snakey” with merchandise piled very high. As she looked at merchandise stacked to her left, she took a step with her right foot, encountered a downward sloping ramp, and fell. She sustained a dislocated knee. At the time the accident occurred Appellees had been leasing the property for three years.

The accident occurred in December shortly before Christmas of 1986. Mrs. Zito entered the store, picked up a shopping basket and began filling it with merchandise. The aisle in the store had many areas which required patrons to navigate between boxes. Since the aisles were very narrow, Appellant had to carry the shopping basket in front of her. After finishing her shopping, Mrs. Zito moved toward the cash register. At that time, she was intrigued by an item on her left. As she turned to grab this item, she also had to step forward. Unfortunately, there was nothing to step on, due to the ramp. Her leg then twisted causing her to fall.

Norman R. Goldstein, an engineer, was called by Appellants as an expert in the area of ramp safety and ergonomics with regard to ramp safety. He testified that, based on the BOCA (Building Officials and Code Administrators) 1987 National Building Code, the ramp was twice as steep as it should be with a slope of 12.5 degrees. Goldstein further testified based upon a report supplied to him by Appellants’ counsel which included a statement by Andre Branison, a Merit Outlet employee, that warning tape was on the floor at the time of Mrs. Zito’s fall.

At trial, Mr. Goldstein stated that the ramp starts about a foot before the end of the cashier’s station, dropping at a twelve-and-a-half degree incline over a twenty inch length of run. He could not testify about how the store was stocked or whether the aisles were overcrowded with merchandise at the time that Appellant fell since he did not examine the store until three years after the accident. He could only testify that, based upon what he read in Mrs. Zito’s deposition, the store was heavily stocked with merchandise and the passageway was somewhat narrow requiring her to carry her basket in front of her. As she was looking forward toward the cash register and her downward vision was obstructed by her basket, all of these factors played a role in Mrs. Zito’s accident. Goldstein also mentioned that the ramp was covered in grey carpeting and was not easy to see, but there was no problem with the lighting. He further testified that after observing the ramp and the area in and around the ramp, it was his opinion that the ramp was excessive and very steep based upon the building codes known to him. Mr. Goldstein attached the 1987 BOCA National Building Code to his report. . He admitted that this code was not in effect at the time that Mrs. Zito fell.

The trial court granted Appellees’ Motion for Compulsory Nonsuit deciding that Appellants failed to show that Appellees had either actual or constructive notice of any harmful defect in the design of the ramp.

We begin by noting that “[a] judgment of nonsuit may be entered only in clear cases and the appellant must be afforded the benefit of every fact and reasonable inference arising from the evidence.” Canty v. Sun Transport, Inc., 422 Pa.Super. 607, 620 A.2d 1, 2 (1992). A nonsuit is only appropriate if the facts are so clear that reasonable persons could not differ about the finality of their evidentiary significance. Id.

Section 343 of the Restatement (Second) of Torts sets forth the duty owed to invitees:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Myers v. Penn Traffic Co., 414 Pa.Super. 181, 606 A.2d 926 (1992), appeal denied, 533 Pa. 625, 620 A.2d 491 (1993). The owner of the store, however, is not an insurer of the safety of its patrons. Id. Additionally, “the mere existence of a harmful condition in a public place of business, or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of the proprietor’s duty of care to his invitees, nor raises a presumption of negligence.” Moultrey v. Great A & P. Tea Co., 281 Pa.Super. 525, 422 A.2d 593, 596 (1980). In order to recover damages in a “slip and fall” case such as this, the invitee must present evidence which proves that the store owner deviated in some way from his duty of reasonable care under the existing circumstances. Id. This evidence must show that the proprietor knew, or in the exercise of reasonable care should have known, of the existence of the harmful condition. Id. Section 343 also requires the invitee to prove either that the store owner helped to create the harmful condition, or that it had actual or constructive notice of the condition. Id.

Appellants assert the evidence established Appellees had actual notice of the dangerous condition, and, therefore, the entry of the non-suit was error. We agree.

The ramp existed for the entire time the Appellees leased the store. They were obviously aware of its existence and its degree of slope. The question for the jury is did Defendant have a duty to warn the Plaintiff-invitee of its existence. Normally, a person is responsible to observe that which can be seen. However, the evidence presented by the plaintiff was that the defendants created an environment which was designed to attract the shoppers attention to various displays. In doing so, it prevented the plaintiff from seeing the ramp. Under these circumstances, the matter should have been submitted to the jury.

The jury should have been permitted to determine if the Appellees had acted in such a fashion that they could not rely on the Appellant observing the existing ramp. In answering this question, they would consider the placement of displays and the width of the aisle. Given the conditions testified to by Appellant, the jury could determine if the defendants were required to warn the plaintiff of the ramp.

Section 343 A of the Restatement (Second) of Torts provides some guidance in this area. It states:

Known or Obvious Dangers

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Comment f to subsection (1) of § 343 A of the Restatement explains in part that:

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect danger because to a reasonable man in his position the advantages of doing so would outweigh the risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. (See §§ 466 and 496D.) It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

In Rogers v. Max Azen, Inc., 340 Pa. 328, 16 A.2d 529 (1940), the defendant, a fur store, appealed the judgment in favor of plaintiff who sued to recover for injuries sustained when she fell on defendant’s premises. Plaintiff testified that she was directed to take a set of stairs to the second floor and turn right. When she did, she tripped over the end of a half-inch high base which anchored the banister to the floor. The court disagreed with plaintiffs contention that the railing was improperly constructed and reversed the judgment because plaintiff testified that she was not looking at the base protruding from the stairway and there was nothing to divert her attention from where she was stepping. The court, nevertheless, opined:

It is true that a less degree of attention in the placement of the feet is required of customers in stores who “walk along the aisles where goods are displayed upon every hand for the very purpose of catching the eye and attracting the attention of those who use the passageways,” than is required of pedestrians on sidewalks, and that the contributory negligence of a person falling over obstacles under such circumstances is usually for the jury. (Citations omitted).

Id. 340 Pa. 328, 332, 16 A.2d 529. See also Beary v. Container General Corp., 368 Pa.Super. 61, 533 A.2d 716, allocatur denied, 520 Pa. 586, 551 A.2d 213 (1987) (Even if electrical wires were obvious, sufficient evidence was presented to allow the jury to infer that the company for whom storage tank was to be constructed should have anticipated that while working in vicinity of wires with its mobile crane and its boom, the independent contractor’s employees might be distracted and inadvertently come into contact with wires); Hallbauer v. Zarfoss, 191 Pa.Super. 171, 156 A.2d 542 (1959) (Even though shopper fell down unlit stairs, where evidence established that the stairs were for use by customers, and store owner constructed displays in a manner that would attract the customers attention, issues of defendants negligence and plaintiffs contributory negligence were for jury); Yarkosky v. The Caldwell Store, Inc. 189 Pa.Super. 475, 151 A.2d 839 (1959) (When determining whether a business visitor’s failure to observe a dangerous condition relieves the possessor of liability, the fact that the possessor has objects on display which diverted the visitor’s attention is an important factor, and a lesser degree of attention is required of customers in the. stores under such circumstances).

We find that sufficient evidence was presented to avoid the entry of a non-suit against Appellant. Based on Appellant’s evidence that the ramp was too steep, the merchandise in the store was distracting and the aisles overcrowded requiring her to carry her basket in front of her so that her view was obstructed, a jury, given the opportunity, could have inferred that Appellees failed in their duty of care under the Restatement (Second) of Torts §§ 343 and 343 A and were liable to Appellant for the injuries that she sustained.

Finally, Appellants claim the trial court erred when it imposed sanctions against them for delay. After the jury was selected and the trial set to begin, Appellants requested a half-day recess to permit the taking of a physician’s video deposition. They contend they could not obtain this deposition until the first day of the trial. They argue that the trial court abused its discretion by ordering the financial sanctions of $1,250.00 for the one-half day delay.

This case was placed into the Day Backward Program of the Civil Case Delay Reduction Strategy which was implemented to address the backlog of untried cases pending for four or more years. At the trial scheduling conference on May 11, 1993, the trial was scheduled for June 1st through June 4, 1993. Appellants also received notice that the trial could start within one week of the trial scheduling conference. At this time, the physician had not been deposed, nor was his availability for trial established. After the scheduling conference, Appellants learned that Dr. Distefano was on vacation and would not be available except for video deposition on June 1st in the afternoon. This information was not communicated to the trial court until three days prior to the scheduled trial date of June 1. As a result, the court was unable to schedule another case on such short notice.

The trial court explained on the record that the order was entered because the one-half day postponement poses a delay in administration of justice solely to accommodate Appellants’ failure to earlier prepare for trial. The $1,250.00 sanction was to reimburse the City and County of Philadelphia and this represented one-half of the daily cost of operating the courtroom. The delay and more importantly, the cost of the delay is directly attributable to the failure of counsel to timely prepare for trial or earlier advise the court of scheduling problems. While we are aware and sympathetic to the problems of counsel in scheduling witnesses, particularly experts, for trial, we cannot find that a court abuses its authority when, in appropriate circumstances, it imposes the costs occasioned by a litigant on that litigant. Courts are under tremendous pressure to dispose of ever increasing caseloads in the face of shrinking resources. To protect the public’s resources by requiring reimbursement is not unreasonable.

We reverse the grant of the compulsory non-suit in favor of Merit Outlet and Bernard and Murray Spain, and we affirm the order imposing sanctions against Appellants.

McEWEN, J., concurs in the result.

      . Appellants also raise the claim that the trial court erred by limiting their expert's testimony. Since we have determined that the entiy of the nonsuit was improper, a discussion of this issue will not be necessary.

      . We note that the trial court, contrary to Appellant’s argument, did not impose the financial sanction pursuant to Philadelphia local rule of civil procedure 212.2 which bestows authority on the court to impose sanctions for failure to settle a case. The rule was referred to because it itemizes the costs of operating a court in Philadelphia on a daily basis. Appellants challenge the imposition of a sanction, not the amount.