author: WIEAND, Judge:

text:
    494 A.2d 413
    COMMONWEALTH of Pennsylvania v. Craig DATESMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 27, 1984.
    Filed May 31, 1985.

      William L. Goldman, Doylestown, for appellant.
    William F. Merz, Assistant District Attorney, Doyles-town, for Commonwealth, appellee.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   WIEAND, Judge:

Craig Datesman was sentenced to prison for life after a jury found him guilty of first degree murder in the shooting death of Jeffrey Birilli. On direct appeal, Datesman contends (1) that the evidence was insufficient to sustain the jury’s verdict; (2) that the verdict was against the weight of the evidence; (3) that the trial court erred when it sustained challenges for cause to prospective jurors who were opposed to capital punishment; (4) that trial counsel was ineffective because he allowed the empanelling of a “death qualified” jury; (5) that the trial court erred in permitting the prosecution to refer to appellant’s silence following arrest; and (6) that the trial court erred by allowing the murder weapon to go out with the jury during deliberations. We find no merit in these contentions and, therefore, affirm the judgment of sentence.

The test for the sufficiency of the evidence is whether, after we have viewed all the evidence in the light most favorable to the Commonwealth and have drawn all reasonable inferences therefrom in favor of the Commonwealth, the evidence is sufficient in law to enable a jury to find each and every element of the crime charged beyond a reasonable doubt. Commonwealth v. Carter, 329 Pa.Super. 490, 495, 478 A.2d 1286, 1288 (1984); Commonwealth v. Nelson, 320 Pa.Super. 488, 491, 467 A.2d 638, 640 (1983).

The evidence demonstrated facts recited in the opinion of the trial court as follows:

On September 12, 1982, the victim and two women drove to the residence of Defendant to talk to him about money he owed two of them and which they desired to collect. They parked their van in a parking lot adjacent to the apartment building where Defendant lived and went up to the second-floor apartment he shared with his girlfriend.
A discussion about the money was held in the apartment and then, at the request of the Defendant’s girlfriend, Defendant, the victim and the two women moved outside. The conversation continued on the outside steps and resulted in the victim striking Defendant. A brief scuffle ensued between the two men.
The victim saw two men approaching and apparently believed they were coming to join Defendant in the fight. He then told Defendant he would get his “boys” to fight also. Witnesses testified that Defendant replied he wanted to put a stop to the situation right then and was going to get his gun and shoot the victim.
The victim and the women then walked toward the van in preparation of leaving and Defendant went back to his apartment. However, Defendant returned a few minutes later and approached the van with a shotgun.
At this point, the victim was at the van, half sitting, half standing by the opened door. Defendant loaded the gun, raised it to his shoulder and according to testimony shouted to one of the women to move out of the way because he was going to shoot the victim. Defendant then fired the gun from approximately 20 feet from the victim and hit the victim in the neck. The victim died the following day.
Defendant testified that he was afraid for himself and his girlfriend, because the victim had said, "... he was going to get his boys or take what he wants.” Defendant stated that he knew the victim owned a revolver. Finally, Defendant testified that he did not remember pulling the trigger and did not do so deliberately.

42 Bucks Co.L.Rep. 284, 285 (1983).

This evidence was sufficient to support a finding of murder in the first degree. “An intent to kill can be formed in a fraction of a second. All that is required is a conscious, fully formed intent to bring about the death of another person.” Commonwealth v. Davis, 331 Pa.Super. 59, 64, 479 A.2d 1077, 1080 (1984) (citation omitted). See also: Commonwealth v. Thornton, 494 Pa. 260, 267, 431 A.2d 248, 252 (1981). Proof of an intent to kill “may be inferred from the circumstances. If, from all the facts attending the killing, the jury can fully, reasonably, and satisfactorily infer the existence of the intention to kill ... they will be warranted in doing so. He who uses upon the body of another, at some vital part, with a manifest intention to use it upon him, a deadly weapon, as an axe, a gun, a knife or a pistol, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill; and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act.” Commonwealth v. O’Searo, 466 Pa. 224, 236-237, 352 A.2d 30, 36 (1976), quoting Commonwealth v. Drum, 58 Pa. 9, 16 (1868). A fully formed intent to kill, therefore, may be inferred from the use of a deadly weapon upon a vital part of another’s body. Commonwealth v. Thornton, supra, 494 Pa. at 267, 431 A.2d at 252; Commonwealth v. Monaco, 327 Pa.Super. 369, 376, 475 A.2d 843, 847 (1984); Commonwealth v. Hartzell, 320 Pa.Super. 249, 257, 467 A.2d 22, 27 (1983).

In the instant case, appellant had returned to the safety of his own apartment after the initial fracas. When he re-emerged with a shotgun, he shouted to a companion of the victim to get out of the way, lifted the shotgun to his shoulder, took deliberate aim at his victim, and shot him in the neck from a distance of approximately twenty feet. From this evidence, a jury could find a killing that was willful, deliberate, and premeditated. Appellant’s testimony that he feared for his life and for that of his girlfriend because Birilli had threatened to “get his boys” and “take what he wants” was for the jury, which could believe some, all or none of it. See: Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979); Commonwealth v. Nelson, supra, 320 Pa.Super. at 491, 467 A.2d at 640.

A new trial will be granted on the grounds that the verdict is against the weight of the evidence only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Jensch, 322 Pa.Super. 304, 313, 469 A.2d 632, 636 (1983). Whether to grant a new trial for this reason is committed to the sound discretion of the trial court. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982); Commonwealth v. Jensch, supra, 322 Pa.Super. at 313, 469 A.2d at 636. The trial court’s decision will be reversed on appeal only for an abuse of discretion. Commonwealth v. Jensch, supra, 322 Pa.Superior Ct. at 313, 469 A.2d at 636-637. We find no abuse of discretion in the trial court’s refusal to grant a new trial on the grounds that the verdict was against the weight of the evidence in this case.

Recent decisions make it clear that appellant is not entitled to a new trial because of the manner in which the trial court and defense counsel resolved actual and potential challenges to jurors who were opposed to the death penalty. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court held that the execution of a death sentence imposed by a jury from which prospective members had been excluded for cause merely because they expressed general objection to the death penalty constituted a deprivation of life without due process of law. The Witherspoon decision, however, does not govern the instant case, for in this case the jury did not impose a death penalty. Instead, it imposed a sentence of life imprisonment. See: Commonwealth v. Roach, 444 Pa. 368, 371, 282 A.2d 382, 384 (1971); Commonwealth v. Romeri, 314 Pa.Super. 279, 295-296, 460 A.2d 1139, 1147-1148, aff'd, Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983), cert. denied, — U.S. —, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984). See also: Commonwealth v. Jones, 501 Pa. 162, 165-166, 460 A.2d 739, 741 (1983); Commonwealth v. Jennings, 446 Pa. 294, 300, 285 A.2d 143, 147 (1971); Commonwealth v. Mitchell, 445 Pa. 461, 467, 285 A.2d 93, 96 (1971).

In Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984), the appellant, who had been sentenced to death, argued that even if the excusal of veniremen had been proper under Witherspoon, the “death-qualification” of the jury had produced a “prosecution prone” jury uncommonly willing to convict. The Supreme Court responded:

This argument was made and rejected in Witherspoon because the United States Supreme Court found the data compiled to that point “too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.” 391 U.S. at 517 [88 S.Ct. at 1774]. Appellant claims that the scientific and sociological surveys and data currently available have now conclusively established the “prosecution-proneness” of “death-qualified” juries and asks this Court to take judicial notice of this data to find his conviction impermissibly tainted. This we decline to do, as we have consistently done in the past. Commonwealth v. Story, 497 Pa. 273, 287-92, 440 A.2d 488 (1981) (Larsen, J. Dissenting); see also Commonwealth v. Roach, 444 Pa. 368, 282 A.2d 382 (1971) and Commonwealth v. Maxwell, [505] Pa. [152], 477 A.2d 1309, 1316 (1984), cert. denied, [ — ] U.S. [ — ], 105 S.Ct. 370, 8[3] L.Ed.2d [306] (1984). Appellant has made no showing on the record that the process of “death-qualifying” a jury tainted his conviction in any way, and his “judicial notice” concept must be rejected — such “a loose concept of ‘judicial notice’ would make a mockery of the adversary system____” Commonwealth v. Story, supra at 497 Pa. 289, 440 A.2d 488 (Larsen, J. dissenting).

And, in a footnote, the Court added:

13. That the data remains too tentative and fragmentary to permit an appellate court to judicially notice that “death-qualified” juries are impermissibly prosecution-prone is demonstrated by the fact that, of the reported cases that have exhaustively analyzed the data following full evidentiary hearings, our research has discovered only one case in which a conviction has been overturned on the basis of that data. Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), on remand from Eight Circuit, 637 F.2d 525 (8th Cir.1980). But cf. Keeten v. Garrison, 742 F.2d 129 (4th Cir.1984) reversing the decision of the federal district court; Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978); Hovey v. Superior Court of Alameda Co., 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301 (1980).

Id., 506 Pa. at 258, 484 A.2d at 1380-1381. See also: Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984), cert. denied, — U.S. —, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984).

This status of the law in Pennsylvania has not been altered by the decision of the United States Supreme Court in Wainwright v. Witt, 469 U.S. —, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). In that case, Johnny Paul Witt had been convicted of first degree murder and had been sentenced to death. The Supreme Court used his appeal to clarify its decision in Witherspoon and to reaffirm the standard announced in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). That standard, the Court repeated, was whether a juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Applying the standard to Witt’s jury, the Court concluded that a juror was properly excluded where a colloquy disclosed the following:

“[Q. prosecutor:] Now, let me ask you a question, ma'am. Do you have any religious beliefs or personal beliefs against the death penalty?
“[A. Colby:] I am afraid personally but not—
“[Q] Speak up, please.
“[A]: I am afraid of being a little personal, but definitely not religious.
“[Q]: Now, would that interfere with you sitting as a juror in this case?
“[A]: I am afraid it would.
“[Q]: You are afraid it would?
“[A]: Yes, Sir.
“[Q]: Would it interfere with judging the guilt or innocence of the Defendant in this case?
“[A]: I think so.
“[Q]: You think it would.
“[A]: I think it would.
“[Q]: Your honor, I would move for cause at this point. “THE COURT: All right. Step down.”

469 U.S. at —, 105 S.Ct. at 848, 83 L.Ed.2d at 846.

Application of the Adams standard to the instant case, quite apart from the fact that the jury in the instant case did not recommend a sentence of death, suggests that the prospective jurors were properly excused. Their views on the death penalty would have impaired the performance of their duties as jurors. Theresa Sugalski indicated that she would not be able to find appellant guilty of first degree murder under any circumstances. Paul Vaughn would not say whether he could apply the law as instructed by the judge, stating that his attitude would depend on his mood on a particular day. William Wright said that he would be reluctant to find the appellant guilty of first degree murder knowing that the death penalty could result; he attributed this to a philosophical opposition to capital punishment. Frankie Cyray stated he would not be able to decide the case based on the law-and the evidence. Edward Sokola said that under no circumstances could he impose the death penalty and that he would not be able to follow the law pertaining thereto as the court would instruct him. Florence Loux stated that she would not be able to apply the law as instructed due to her feelings about the death penalty. John Williams flatly stated that he could not serve in the case because he did not believe in capital punishment. The record thus reveals that each of the seven prospective jurors excluded would have been unable to apply faithfully and impartially the law as instructed by the trial court, each for a reason personal to the juror.

The record is devoid of any evidence that would show that the jury chosen to hear the charges against appellant was guilt prone or that appellant was otherwise prejudiced by the jury selection process followed by the trial court. Therefore, defense counsel was not ineffective for failing to object. Counsel will not be deemed ineffective for failing to raise or pursue a meritless issue. Commonwealth v. Anderson, 501 Pa. 275, 286, 461 A.2d 208, 213 (1983); Commonwealth v. Courts, 315 Pa.Super. 108, 132, 461 A.2d 820, 827 (1983).

The contention that the prosecution was permitted to comment on appellant’s post-arrest silence arises from the following colloquy between the prosecuting attorney and the arresting police officer:

A. The white male was instructed to place his hands above in the air and to proceed down the steps and wait face down on the ground.
Q. Did he do that?
A. Yes, he did.
Q. Did he say anything at that time?
A. Yes. He was being searched by myself. He uttered, “I shot him.”
Q. Did he say anything else?
A. No.
Q. How many times did he indicate — how many times did he say, “I shot him.”?
A. I heard once.
Q. He said nothing else other than, “I shot him.”
A. Not to my knowledge.
Q. What did you do then?
A. I completed the search and advised Officer Tegge to advise the subject of his rights and at that time Officer Tegge asked—
MR. WILDER [defense attorney]: Objection.
THE COURT: Sustained. Let me me [sic] you at sidebar.
(At this time a sidebar conference took place out of the presence of the court reporter.)

(Emphasis added.) After the sidebar conference, direct examination resumed. The defense did not move for a mistrial or request cautionary instructions. The only objection made by the defense was sustained by the trial court. Under these circumstances, it is difficult to find trial error. The trial court was not required to grant a mistrial or give cautionary instructions when no request therefor had been made.

Moreover, the colloquy between the prosecuting attorney and the arresting officer did not warrant a mistrial. The witness had heard appellant utter, “I shot him” while appellant was being searched. He was asked if at that time appellant had said anything else, and the witness answered that he had not. This was not a reference to post-arrest silence but to a post-arrest statement. There was no prejudice in this colloquy which would require the granting of a new trial.

Appellant contended at trial that the offending gun had discharged accidentally. The Commonwealth, therefore, offered testimony from a firearms expert regarding the firing mechanism of the gun and the amount of pressure needed to discharge the gun. The trial court thereafter permitted the shotgun to be taken out with the jury so that it could be examined during the jury’s deliberations. Appellant contends that this was error.

Pa.R.Crim.P. 1114 vests discretion in the trial judge to determine which, if any, exhibits shall be taken out with the jury during its deliberations. The only exceptions consist of a transcript of trial testimony, a written confession, and an information or indictment. These may not go out with the jury. The Supreme Court has also suggested that, in general, exhibits requiring continuous expert opinion for accurate and proper examination and consideration of the evidence should not go out with the jury. Commonwealth v. Pitts, 450 Pa. 359, 366-367 n. 1, 301 A.2d 646, 650 n. 1 (1973). However, a murder weapon and testimony of a firearms expert “are not of such character as to require continued expert interpretation for the jury to properly evaluate the evidence.” Commonwealth v. Hobson, 484 Pa. 250, 255, 398 A.2d 1364, 1367 (1979). See also: Commonwealth v. Jennings, 285 Pa.Super. 295, 300, 427 A.2d 231, 233 (1981). In Hobson, where the defense was accident, a firearms expert testified to differing amounts of pressure necessary to fire the gun with and without the gun’s ejector rod. The ejector rod had been missing from the recovered weapon, and the expert testified that increased pressure would have been required to pull the trigger of such a gun. The Supreme Court held that the trial court did not abuse its discretion when it allowed the jury to examine the gun during deliberations. That decision is authoritative. Our examination of the record in the instant case does not disclose any abuse of discretion by the trial court in permitting the jury to examine the offending gun during deliberations.

Judgment of sentence affirmed.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    494 A.2d 420
    COMMONWEALTH of Pennsylvania v. Everett E. SHIREY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1982.
    Filed May 31, 1985.

      Dante G. Bertani, Public Defender, Greensburg, for appellant.
    Perry S. Patterson, Deputy Attorney General, Couders-port, for Commonwealth, appellee.
    Before MONTEMURO, JOHNSON and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This case is before us for the second time. In Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984), we remanded this case and directed the lower court to transcribe the notes of testimony of May 15 and 16, 1980, in order to address appellant’s contention that the double jeopardy clause of the Fifth Amendment barred this prosecution.

Appellant’s double jeopardy argument is that the prosecution of appellant on other charges docketed at Nos. 28 and 30 of 1980 in Potter County should have been consolidated with the prosecution of the charges in the instant appeal, 1. e., Nos. 29 and 31 of 1980, because all the charges arose from the same criminal episode. Over appellant’s objections, the charges at Nos. 28 and 30 were consolidated for trial, and those at Nos. 29 and 31 were consolidated for a separate trial. The trial of Nos. 28 and 30 commenced on May 15, 1980 and ended on May 16, 1980 when the trial court declared a mistrial due to the inability of the jury to reach a verdict. The trial of Nos. 29 and 31 involved in the instant appeal commenced on July 10, 1980, and concluded with the jury returning a verdict of not guilty of indecent assault and guilty of corruption of a minor at No. 29, and not guilty of indecent assault and guilty of corruption of a minor at No. 31.

In the earlier appeal, we concluded that the crimes involved at Nos. 28 and 30 did indeed arise out of the same criminal episode as those charged at Nos. 29 and 31. Commonwealth v. Shirey, supra, 333 Pa.Superior Ct. at 131-33, 481 A.2d at 1341. Despite this fact, the Commonwealth decided to consolidate the charges as set forth above, and thereby “threatened a violation of appellant’s constitutional right not to be placed in jeopardy twice for conduct arising from a single criminal episode.” Id. However, the only prior prosecution which existed at the time of the No. 29 and No. 31 prosecution was the mistrial of May 16, 1980. After reviewing the applicable law, we determined there would be no violation of the double jeopardy clause if the first trial concluded without a verdict for reasons of manifest necessity. See Commonwealth v. Shirey, supra, 333 Pa.Superior Ct. at 131-33, 481 A.2d at 1341-43 and cases cited therein.

We have examined the notes of testimony from the May 15 and 16, 1980 trial and find a mistrial was properly declared by the trial court. In that proceeding, the jury began its deliberations at 4:33 p.m. on May 16, 1980. At 8:03 p.m., the jury expressed its difficulty in interpreting the law, was instructed by the trial judge for a second time, and resumed its deliberations. At 10:09 p.m., the jury returned again, this time to inform the court that it was unable to render a verdict. The foreman stated that there was a “six/six split” on the panel; the trial court polled the jury and every juror indicated his or her belief that there was a hopeless deadlock and no amount of time or further instruction would result in a verdict. We find the mistrial in these circumstances to have been manifestly necessary due to the lack of any reasonable probability that the jury would agree upon a verdict and, as such, conclude there was no violation of the double jeopardy clause when appellant was later prosecuted for the charges at Nos. 29 and 31. Commonwealth v. Murry, 498 Pa. 504, 447 A.2d 612 (1982).

Appellant’s next contention to which we address ourselves is that the evidence was insufficient to support the verdict.

Preliminarily, we state our standard of review. In evaluating a claim of insufficient evidence, we must view the evidence in the light most favorable to the Commonwealth as the verdict winner and, drawing all reasonable inferences therefrom, we must determine if the Commonwealth has presented sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden based on wholly circumstantial evidence. The trier of fact in passing upon the credibility of all witnesses and determining the weight afforded the evidence, is free to believe all, part or none of the evidence. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979).

At No. 29, appellant was charged with indecent assault and corruption of a minor, the charges pertaining to alleged conduct toward Bobbi Jo Marshall (11 years of age); at No. 31, appellant was charged with the same crimes, the alleged victim there being Julie Lynn Marshall (aged 13). As to both victims, appellant was found not guilty of the indecent assault charges.

Regarding both corruption convictions, the informations specifically charged corruption of a minor by certain acts, viz:

1. committing the act of indecent contact;
2. showing the victim “obscene magazines and literature”; and,
3. on several occasions having conversations with the child “relating to having sexual relations with him, watching while he had sex with another girl, and how he had sex with a horse.”

This court has stated that “[b]y specifically charging the manner by which appellant was alleged to have corrupted the morals of these minors, the Commonwealth was required to prove that appellant did [the underlying act].” Commonwealth v. Lambert, 226 Pa.Super. 41, 44, 313 A.2d 300, 301 (1973). In Lambert, the defendant was charged with corrupting the morals of certain minors by furnishing dangerous drugs to the minors. At trial, while there was testimony that the defendant had supplied the minors with six pills identified as “red devils”, the Commonwealth did not prove the drugs were “dangerous” as defined by the then operative Drug, Device, and Cosmetic Act. “Having failed to do so, the Commonwealth did not prove the offense as charged in the indictment, and appellant’s motion in arrest of judgment should have been granted.” Id. The Lambert court, therefore, reversed the lower court’s conclusion that the broad scope of 18 Pa.C.S. § 6301 prohibiting corruption of minors allowed the conviction. See also Commonwealth v. Davison, 243 Pa.Super. 12, 364 A.2d 425 (1976) (when charging a defendant with corruption of minors based on alleged statutory rape, the Commonwealth must prove statutory rape or the corruption conviction cannot stand).

In Commonwealth v. Wolff, 273 Pa.Super. 27, 416 A.2d 1072 (1979), appellant was charged, inter alia, with indecent assault and the corruption of a minor relating to two different victims, all of which occurred during the same criminal episode. As to one victim, the lower court at trial dismissed the indecent assault charge; the jury subsequently found the defendant guilty of corrupting a minor. However, because the information specifically alleged corruption by an act of indecent assault, this court held that the same result as occurred in Lambert should have resulted there. The Wolff court reversed the corruption conviction, finding the evidence insufficient to sustain the corruption conviction.

Given the decisions of this court in Lambert, Davison, and Wolff, we are constrained to find that the corruption conviction cannot be supported by the alleged acts of indecent assault, for as the jury clearly decided, the Commonwealth failed to prove those acts. Indeed, unlike Lambert where the court granted a demurrer on the underlying drug charge and Wolff where the court dismissed the underlying indecent assault charge, here the jury considered all the evidence as to the underlying indecent assault and found the Commonwealth had failed to meet its burden of proof. The jury’s finding of not guilty in both instances of indecent assault is conclusive and prohibits us from sustaining the corruption convictions based upon these acts. We must, therefore, determine if the conviction can be sustained by the evidence of the other acts specifically set forth in the informations.

The second type of conduct, as set forth in the information, by which appellant corrupted the minors was “showing ... obscene magazines and literature.” At trial, the two girls testified that they were shown “dirty books” containing pictures of “naked women and naked men” (N.T. July 10 and 11, 1980 at 28-29, 62). Although neither girl was certain, one of the books may have had “Playboy” on the cover (Id. at 79-80) and the “top of it said something about sex.” (Id. at 79). The books, magazines or pictures were never produced at trial. On appeal, appellant argues the Commonwealth failed to offer any evidence that the “so called ‘dirty books’ ... [were] obscene or even what they contained.” Appellant Brief at 21.

In determining the sufficiency of this evidence, we find this court’s decision in Commonwealth v. Chapman, 186 Pa.Super. 632, 142 A.2d 469 (1958) to be instructive. In Chapman, the defendant was convicted of furnishing alcoholic beverages to a minor and corrupting the morals of a minor. The minor testified that the defendant showed him pictures, taken from a drawer in the defendant’s bedroom, which showed “ ‘a lady in the nude and a man and there were others just like it.’ ” Id., 186 Pa.Super. at 634, 142 A.2d at 471. Based on this information, police officers seized from the desk in defendant’s bedroom 40 pictures showing naked men and women in pornographic positions; these pictures were admitted into evidence at trial.

The Chapman court quoted approvingly from the lower court charge, which stated in part:

Because while the boy said he saw pictures of nude men and women it does not follow that the pictures of nude men and women alone would be lewd or lascivious or obscene, because there are pictures of nude men and women that are pictures of art, true art, that would not be obscene or lewd or lascivious. You would have to find from the evidence that the defendant showed this boy these pictures or some of the self same pictures that were exhibited to you. And if you find that you may find the defendant guilty as charged.

Id., 186 Pa.Superior Ct. at 635, 142 A.2d at 471.

This court found the evidence of exhibiting obscene materials sufficient to support the corruption charge because the pictures introduced were clearly obscene and because of the minor’s and officers’ testimony which linked those pictures with the ones shown the minor.

We do not believe the evidence in the instant case sufficiently established the obscenity of the materials shown to the Marshall girls. The girls were uncertain of the name of the materials shown to them. More importantly, the only evidence produced by the Commonwealth tending to show what was contained in the materials was that the pictures were “dirty” because they showed naked men and women. Significantly, the jury did not have the benefit of viewing the allegedly obscene photographs themselves. We do not believe it is reasonable for the fact finder to draw the inference that a picture is obscene based solely on the fact it showed naked men and women and that one of the covers mentioned the word sex, especially when the materials themselves have not been viewed. As the lower court in Chapman explained, the description by the minors alone was hardly conclusive in proving that they were lewd, lascivious or obscene. While our supreme court has stated, in a different context, that a jury needs no assistance in determining whether that which is before it is obscene, Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974) (whether certain books in evidence were obscene), the testimony here presents too insufficient a basis upon which to base an opinion.

Thus, standing alone, we would not find evidence sufficient to sustain the conviction. However, contrary to appellant’s contention, the evidence relating to the obscene magazines and literature does not stand alone.

According to appellant, there was no testimony adduced at trial concerning the conversations alleged in the information. This is simply not the case. Bobbi Jo Marshall testified that appellant said to the girls “if you want rubbed come over and sit by me.” (N.T. July 10 and 11, 1980 at 30). She also testified that appellant asked her if she did what another girl had done, which Bobbi Jo understood to mean allowing appellant to place his hand between her legs and touch her breasts. (Id. at 36). In addition, Julie Lynn Marshall corroborated her sister’s testimony, stating that appellant “asked us if we wanted him to feel us and we told him no.” (Id. at 65). We find this evidence, and the reasonable inferences drawn from it, sufficient to sustain the jury’s verdict on the corruption charge.

Appellant would also have us find error when the lower court refused appellant’s motion for mistrial after the Commonwealth elicited the testimony from Bobbi Jo Marshall regarding criminal activity engaged in by appellant with Pam McMillan. Specifically, appellant contends it was highly prejudicial error to admit the following testimony:

[Assistant District Attorney]: What was said at that conversation?
[Bobbi Jo Marshall]: He [appellant] said do you do what Pam does.
Q. And what did you say?
A. I go, what? And he goes, never mind. Well, I knew what Pam does because Joy and Michelle told me.
Q. What does Pam do?
[Defense objection; overruled]
#¡5 # * S¡C # *
Q. What did you think Mr. Shirey was talking about when he said do you do what Pam does?
A. She does bad stuff.
Q. Such as?
[Defense counsel]: Your Honor, I would object unless this witness knows and at that time knew what supposedly Pam did.
[The Court]: Counsel, your objection is overruled.
A. She lets him but [sic] his hand between her legs and lets him suck on her breasts and stuff like that.

(Id. at 35-36).

As we stated at length in appellant’s previous appeal, while, as a general rule, evidence of criminal activity other than that with which a defendant is charged is inadmissible at trial, exceptions do exist. See Commonwealth v. Shirey, supra, 333 Pa.Super. at 122-23, 481 A.2d at 1334-46 and the authority cited therein. One such exception, frequently called the “res gestae” exception, has been set forth by our supreme court as allowing the admission of evidence of another criminal act “where ‘such prior ... criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts.’ ” Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975), quoting, Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932). In the instant case, we find the testimony regarding Bobbi Jo’s understanding of what appellant had asked her to be an integral part of the alleged conversation by which appellant corrupted her. It was, therefore, admissible under the “res gestae” exception. We do not believe the Commonwealth elicited this testimony in an attempt to show appellant’s predisposition to commit the crime charged, or to impugn his character; rather, the other criminal act was necessarily brought out to prove the nature of the deed with which he was charged. J. WIG-MORE, EVIDENCE § 218 (Tillers rev. ed. 1983).

Appellant argues, furthermore, that the testimony was so highly prejudicial as to conclusively weigh against admitting it. We are satisfied that whatever prejudice may have resulted was sufficiently cured by the trial court’s cautionary instruction which was given immediately after appellant’s objection, viz.:

Members of the Jury, you have heard this witness testify as to possible other activity of the defendant [appellant]. You should not consider the truth or falsity of what he allegedly did. He is not being charged with anything else. The only relevancy of that would be the witness’s understanding of what Mr. Shirey said. The fact that he may or may not have done it or the truth or falsity of the reference is not relevant. You are so charged. Counsel may cross examine.

(N.T. July 10 and 11, 1980 at 37).

Finding no abuse of discretion, we conclude the lower court did not err in refusing appellant’s motion for mistrial. Commonwealth v. Shirey, supra.

Finally, appellant contends the lower court erred when it refused to give a requested “missing witness” charge regarding certain witnesses who were listed on the bills of information, but who were never called by the Commonwealth to testify at trial. Because appellant never asked to call these witnesses and does not contend he would have called them if they were available, we reject this assignment of error. Commonwealth v. Gilman, 485 Pa. 145, 401 A.2d 335 (1979); Commonwealth v. Shirey, supra.

Finding no reversible error, we affirm the judgment of sentence.

      . Appellant’s initial appeal involved three consolidated appeals. In the instant case, we address only the appeal from the judgments of sentence entered at Potter County Docket Nos. 29 and 31 of 1980. We had retained jurisdiction as to these two appeals.

      . 18 Pa.C.S. § 3126.

      . Id. § 3125, repealed and reenacted as § 6301.

      . Viewed in such a light, the facts pertinent to this appeal have been outlined in Commonwealth v. Shirey, 333 Pa.Super. 85, 131-33, 481 A.2d 1314, 1340-41 (1984).

      . 18 Pa.C.S. 6301(a), which defines the offense of corruption of minors, provides:
      Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, is guilty of a misdemeanor of the first degree.

      . Act of September 26, 1961, P.L. 1664, 35 P.S. § 780-2(h).

      . Appellant has preserved this issue by virtue of his demurrer at trial and his post-verdict motions. We also note that appellant’s argument here is different from the one made in the appeal from Nos. 28 and 30 where appellant argued the Commonwealth failed to prove obscenity of certain films, as that argument was based solely on Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782 (1972). See Commonwealth v. Shirey, supra, 333 Pa.Super. at 127, 481 A.2d 1338-39.

      . We also note that Julie Lynn testified another girl, Joy Paucke, and not appellant was the one who retrieved the materials from behind the seat in appellant’s truck, although there also was testimony that appellant encouraged the girls to look at the pictures.

      . Appellant argues that the lower court acknowledged, and indeed instructed the jury that no testimony was offered relating to the conversations alleged in the information. It is true that the lower court instructed the jury there was no "testimony concerning the [appellant] having conversations with the child relating to having sexual intercourse with him” or having the child watch while he had sex with another girl or appellant’s having sex with a horse. (N.T. July 10 and 11, 1980 at 171-72). However, the information charged appellant with corruption by, inter alia, having conversations with the girls "relating to having sexual relations with him.” Evidence of these conversations clearly was adduced at trial. See discussion of Bobbi Jo’s and Julie Lynn’s testimony, infra.

      . We consider this evidence in reviewing appellant's sufficiency claim since we have found it was properly admitted by the trial court. See our discussion infra.

      . Appellant raises, on appeal, other instances where the Commonwealth improperly elicited testimony of other criminal activity committed by appellant. However, we agree with the lower court that appellant failed to specify these instances in his post-verdict motions and, therefore, he cannot raise them on appeal.


author: SPAETH, President Judge:

text:
    494 A.2d 426
    COMMONWEALTH of Pennsylvania v. Marc BLACKWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1984.
    Filed June 7, 1985.

      Thomas L. McGill, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, OLSZEWSKI and CERCONE, JJ.
   SPAETH, President Judge:

This appeal is from judgments of sentence for third degree murder, kidnapping, conspiracy, robbery, and possession of a prohibited offensive weapon. Appellant argues that the trial court erred in admitting hearsay evidence of statements the victim made following his abduction. We have concluded that the evidence was properly admitted, and accordingly, affirm.

On September 18, 1980, Leonard Leichter and his wife, Dorothy Leichter, went shopping at the Acme Market in the Bala Cynwyd Shopping Center in Bala Cynwyd. N.T. 54-55. They arrived at the market at about 8:10 p.m. and parked in an adjoining parking lot about 175 feet from the entrance to the market. N.T. 55. By about 9:00 p.m. they had completed their shopping, and while Mr. Leichter went to get their car, Mrs. Leichter waited outside the market with their packages. Mrs. Leichter testified:

I saw him walk down the drive, kept watching, and he walked to the car, and I saw him go in between the cars, and I kept watching to see the back light to go on so I would know he would be coming back. In the meantime, my attention was drawn to a little Volkswagen that sort of revved up, and then the light came on and they started to back out. And in the meantime, my husband’s car came on, and he started to back out. I thought it was he. And then I took my eyes away from that spot to pick the packages up to get them ready to put them in the car because they were down in the cart as I was picking them up. And then I looked up and he wasn’t there. I didn’t see what happened after they pulled out partway out of the parking lot.
Q. Your husband’s car was gone?
A. Well,—
Q. Your husband’s car was gone?
A. They were gone.
N.T. 2.58.

At 9:13 p.m. Mr. Leichter telephoned the police from a telephone booth at Montgomery Drive and Belmont Avenue. At trial, a tape recording of his conversation with the police dispatcher was played, N.T. 2.102, and a transcript of the recording was read, N.T. 2.86-2.93. Mr. Leichter first stated that he “just got held up,” and that he was “in the park at the phone booth.” N.T. 2.86. The conversation continued:

“Radio: How did it happen?
“Caller: I was coming out of the Acme in Bala, and my wife was waiting, and I walked to my car, and these guys were waiting for me.
“Radio: And what happened?
“Caller: They put me — I can’t talk. I have a heart condition.
“Radio: Yeah, well, just—
“Caller: They put me in the car, cleaned me out. They let me out down here.
They had a sawed-off shotgun on me ... [”]
N.T. 2.87-2.88.

Mr. Leichter then described his car, which his assailants had driven off with. N.T. 2.88. The conversation continued:

“Radio: Two males?
“Caller: Yeah, two black ones and — and there was one in a — another one or two in a little Volkswagen was following.
“Radio: What colors on the Volkswagen?
“Caller: It was a ...
“Radio: Go ahead, just take—
“Caller: Like a dirty grayish blue.
“Radio: Uh-hum.' Where’s your wife, sir?
“Caller: She’s up there waiting for me at the Acme.
“Radio: Oh.
“Caller: She must know something happened by now.
“Radio: Yeah; just try, try to relax if you can. they’ll be right there.
“Caller: Okay.
“Radio: I’m gonna just keep you on the line.
“Caller: Okay.
“Do you have any medication that you could be taking or anything?
“Caller: Yeah, I got a nitro.
“Radio: You got it with you?
“Caller: Yeah, I took one.
“Radio: Okay.
“Caller: I’m having a little trouble breathing.
“Radio: Yeah, I — I know it’s tough to relax.
“Caller: Yeah, I—
“Radio: But — but the worst—
“Caller: I was very (unreadable) ...
“Radio: but the worst is over; I mean, at least— “Caller: Yeah, uh-huh.
“Radio: You know.
“Caller: Yeah, that’s all.
“Radio: I — I know it’s a frightening experience.
“Caller: The first time I ever had this happen.
“Radio: Yeah. (9:18:35 P.M.)
If you have to go to the hospital, you just tell the police when they get there if that’s your condition.
“Radio: No, I don’t want — I don’t think I have to go to the hospital.”
N.T. 2.86-2.91.

As the dispatcher kept him on the telephone awaiting arrival of the police, Mr. Leichter stated on three further occasions that he was having difficulty breathing. N.T. 2.92.

At 9:22 p.m. the police arrived at the telephone booth. At trial Officer James Delaney testified as follows:

I asked him [Mr. Leichter] what had happened. He told me that he was leaving the Acme Market in Bala-Cynwyd en route to his car when he was accosted by two black males, point of shotgun, forced into the car and driven into Fairmount Park where he was dumped out of the car at Belmont and Montgomery Avenue. He went on to state that he believed there was another car involved. He said he felt he was being followed by a blue Volkswagen operated by another black male. I asked if he could give us any more of a description on the males. He said they were teen-agers.
He appeared very upset. He started to cough, seemed like he was very congested. At this point of our conversation, he stated to me that he was a heart patient and that he had just taken a nitroglycerine pill. He seemed short of breath and he said he needed oxygen. At that point, I placed him in the back of the emergency wagon, and we transported him up to the Osteopathic Hospital. N.T. 2.30-2.31.

The drive to the hospital lasted “about two and a half minutes.” N.T. 2.31. There, at about 9:30 p.m., Mr. Leichter and the police were met by Mary Beth Reese, an emergency room nurse. N.T. 2.104-2.106. She testified that Mr. Leichter was “very grayish, like an ashy color, and he was like diferetic [sic ], like profuse sweating.” N.T. 2.107. She stated: “He kept saying, you know, ‘Please help me be able to get my breath.’ ” N.T. 2.107. Nurse Reese further testified as follows:

I asked him, “What happened?” you know, “Could you tell me, you know, why you are so upset?” because he was terribly upset. He just kept saying, “I’m having so much trouble breathing. I’m so frightened.” And, you know, he seemed so scared. I never — it was really difficult. I had to requestion him to find out. And then, you know, he said he had gone to the Acme with his wife for groceries, and he came out to go get the car, and there were a couple of guys that came, and you know, took him at gunpoint and robbed him and then took him in the car, then dropped him off. And it was like a couple of times, you know, I had to keep asking him questions. Then I tried to find out, you know, like a medical history, if he was on any medicines for any reasons or allergic in case I gave him something he was allergic to.
From there, we went over and we gave him oxygen and we did a cardiogram. And then we placed him on the cardiac monitor.
N.T. 2.106-2.107.

Mr. Leichter was treated for pulmonary edema, N.T. 2.119-2.120, but fifteen minutes after arriving at the hospital, he suffered cardiac arrest. N.T. 2.111. He died just after midnight. N.T. 2.62. At trial Dr. Stuart Friedman, the emergency room physician who treated Mr. Leichter, testified that the stressful situation that Mr. Leichter had suffered could have caused the cardiac arrest. N.T. 2.122-2.123. Dr. Robert Segal, Assistant Medical Examiner, testified: “Cause of death is arteriosclerotic cardiovascular disease aggravated by the robbery and kidnapping. The manner of death is homicide.” N.T. 3.23.

Defense counsel objected to admission of the tape recording and the transcript of the recording, Officer Delaney’s testimony, and Nurse Reese’s testimony. The trial court, however, overruled the objections and admitted the evidence under the “res gestae exception” to the hearsay rule.

-1-

To speak accurately, there is no “res gestae exception” to the hearsay rule; the exception so-called is in fact a catchall exception that embraces several distinct, though sometimes overlapping, exceptions. As this case illustrates, analysis is aided if we ask whether the evidence in question is within one of the distinct exceptions, and forgo altogether any reference to “res gestae,” which has been rightly condemned as “a Latin phrase to serve as a substitute for reasoning,” Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 229 (1922); as an expression that gives lawyers and judges “relief at a pinch,” Thayer, Bedingfield’s Case, 15 Amer.L. Rev. 1, 10 (1881); and as “a password for the admission of otherwise inadmissible evidence,” McCormick on Evidence 836 (Cleary ed. 1984).

In the hope, no doubt, of improving analysis, the Supreme Court in Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978), with citation to Morgan, supra, 477 Pa. at 137 n. 3, 383 A.2d at 860 n. 3, stated:

As we have recognized, “res gestae ” is actually a generic term encompassing four discrete exceptions to the hearsay rule: (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions.

Id., 477 Pa. at 136-37, 383 A.2d at 860 (footnote omitted). Despite this statement, references to the “res gestae exception” continue to occur, sometimes without explaining which of the distinct exceptions in question is meant, other times as though the “res gestae exception” referred only to the excited utterance exception. See Commonwealth v. Coleman, 458 Pa. 112, 116, 326 A.2d 387, 389 (1974) (“The practice in many courts, including those of this Commonwealth, has been to refer to the particular exception by the generic designation.”); Commonwealth v. Farquharson, 467 Pa. 50, 67, 354 A.2d 545, 554 (1976) (“the traditional concept of a res gestae statement ... is ... a spontaneous utterance emanating from an overpowering emotional and shocking experience sufficient to exclude the possibility that the statements were the product of premeditation or design.”). Here, the trial judge, while properly citing and stating Pronkoskie, nevertheless treated “the res gestae rule” as applying only to excited utterances. Slip op. of tr. ct. at 14-16.

-2-

It will be helpful, before considering which of the four distinct exceptions identified in Pronkoskie may be applicable to the testimony in this case, to define each of the exceptions.

-a-

To come within the excited utterance exception to the hearsay rule, a statement must be:
“... a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.” Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).
Commonwealth v. Pronkoskie, supra 477 Pa. at 137-38, 383 A.2d at 860.

The justification for the excited utterance exception is that “a spontaneous declaration of an individual who has recently suffered an overpowering and shocking experience is likely to be truthful.” Commonwealth v. Cheeks, 423 Pa. 67, 70, 223 A.2d 291, 293 (1966). Whether an utterance fits within the exception is to be determined on the facts of the particular case. As was said in Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975):

The spontaneity of such statements is, of course, dependent on the peculiar facts and circumstances of each case. We have held that time lapses equal to and greater than that present here do not bar the admission of a statement where the spontaneity born of excitement is otherwise satisfactorily shown to exist. Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973) (15-20 minutes); Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966) (45 minutes). We have also held repeatedly that the mere fact that a statement is made in response to a question does not prevent its admission as a res gestae statement. Commonwealth v. Banks, supra; Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968); Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962); Commonwealth v. Rumage, 359 Pa. 483, 59 A.2d 65 (1948); Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945). It is true, of course, that in some instances the time lapse may be so long or the question and answer exchange so unhurried and reflective as to require a finding of nonspontaneity,____
Id., 465 Pa. at 41-42, 348 A.2d at 107.

In considering the facts of the particular case, the courts have considered: (1) whether the declarant in fact witnessed the startling event, Commonwealth v. Pronkoskie, supra (child declarant did not see “Daddy sho[o]t Mommy”); (2) the time that elapsed between the startling event and the declaration, see Commonwealth v. Robinson, 273 Pa.Super. 337, 417 A.2d 677 (1979) (statement not admissible when, inter alia, time lapse could not be determined); (3) whether the statement was in narrative form, see Commonwealth v. Green, 487 Pa. 322, 328, 409 A.2d 371, 374 (1979) (statement given in form of narration and as explanation of past events not admissible); Commonwealth v. Little, 469 Pa. 83, 88, 364 A.2d 915, 917 (1976) (responses to questions six hours after incident not admissible); (4) whether the declarant spoke to others before making the statement, or had the opportunity to do so, Commonwealth v. Green, supra (victim reported incident to others — subsequent statement not admissible); Commonwealth v. Little, supra (victim had opportunity to speak to others — statement not admissible); Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 565, 291 A.2d 772, 775 (1972) (“distinct break in the continuity during which time the decedent had seen a number of people, to whom he did not mention anything about the accident” made statement inadmissible). It is important to note that none of these factors, except the requirement that the declarant have witnessed the startling event, is in itself dispositive. Rather, the factors are to be considered in all the surrounding circumstances to determine whether a statement is an excited utterance.

-b-

Cases involving the present sense impression exception to the hearsay rule are infrequent. This exception requires that the declarant see the event and make an observation about it to another person also present at the scene; the observation must be made at the time of the event, or so shortly thereafter that it is unlikely that the declarant had the opportunity to form the purpose of misstating his observation. McCormick, supra at 860-62. Commentators have generally characterized the occurrence giving rise to the declaration as an unex citing event. See Thayer, supra at 83; Morgan, Res Gestae, 12 Wash.L.Rev. 91, 98; but see Wigmore Evidence § 1747 (Chadbourn rev. 1976). Reliability is considered assured by the contemporaneousness of the statement, and by the fact that the observation is made to another person. McCormick, supra. As McCormick has observed, in many cases the occurrence has in fact been an exciting event. See McCormick, supra at 861 n. 10. And see Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974), discussed infra.

The leading case involving the present sense impression exception is Houston Oxygen Co., Inc. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (1942). There, a passenger in a car being passed by another car at a high rate of speed stated: “We[’ll] find them somewhere on the road wrecked if they keep that rate of speed up.” Id. at 5, 161 S.W.2d at 476. In Commonwealth v. Coleman, supra, two Justices adopted the present sense impression exception to the hearsay rule. Relying on Houston Oxygen, JONES, C.J., joined by O’BRIEN, J., with EAGEN and MANDERINO, JJ., concurring in the result, held that statements by the victim of a murder, made to the victim’s mother over the telephone, that her boyfriend would not leave, that he said he would hang up the telephone, and that he was going to kill her, could be testified to by the mother as her daughter’s present sense impressions. The mother further testified that during the call she heard shouting in the background. POMEROY, J., joined by ROBERTS and NIX, JJ., concluded that the mother’s testimony was admissible — but under the excited utterance exception, not the present sense impression.

In Commonwealth v. Farquharson, supra, the Supreme Court, relying on this court’s decision in Commonwealth v. Craven, 138 Pa.Super. 436, 11 A.2d 191 (1940), acknowledged that the present sense impression exception to the hearsay rule is recognized in Pennsylvania, but concluded that the statements offered — testimony as to an argument between the victim and his assailant and a subsequent conversation with the victim — did not show an “absence of retrospective mental action ... sufficiently clear to justify the admission of the evidence.” 467 Pa. at 68, 354 A.2d at 554. See Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982) (patient’s testimony that anesthesiologist “yell[ed] into a telephone: T have put five messages to Dr. Wallach’s [the surgeon’s] office. None of them returned. I have Mrs. Reichman in critical condition’ ” held not admissible as present sense impression).

-c-

We are aware of no Pennsylvania appellate case that has expressly cited the exception to the hearsay rule for statements of present physical condition to hold a statement admissible. In two cases, however, statements describing present physical conditions were considered under the rubric of the “res gestae.”

In Thompson v. City of Philadelphia, 222 Pa.Super. 417, 294 A.2d 826 (1972), we held admissible as a “res gestae” statement the statement of an accident victim: “I was crossing from the West to the East side of 21st Street. I saw the truck. I saw it back up. I couldn’t get out of the way. It hit me. My left hip hurts.” Id., 222 Pa.Superior Ct. at 419, 294 A.2d 827-28. The statement was made to a police officer while the victim was in the x-ray room of the hospital one hour after the accident. We treated it as an excited utterance: “If the decedent was so much in pain that his attention was focused on his pain and not on the circumstances surrounding the accident, this statement as to those circumstances cannot be said to be ‘shrewd and self-calculating.’” Id., 222 Pa.Superior Ct. at 420-21, 294 A.2d at 828 (quoting Campbell v. Gladden, 383 Pa. 144, 147, 118 A.2d 133, 135 (1955)) (emphasis added).

Cody v. S.K.F. Industries, Inc., supra, is another case which may appear to involve the exception for statements of present physical condition. Closer examination reveals, however, that, as we did in Thompson, the Supreme Court considered the statements within the exception for excited utterances. There, the plaintiff’s decedent had been “struck on the head and knocked to the ground by an overhead garage door” while at work. Id. 447 Pa. at 561, 291 A.2d at 773. He left work early and was driven home by a fellow employee. Upon arriving home he complained to his wife of a severe headache and explained what had happened at work. Several days later he stated to his physician that he had been struck on the head by the garage door. Without discussing whether the declarant’s complaint of a severe headache to his wife and his statement to the physician were statements of present bodily condition, the Court held that the “statements concerning the accident [were] not admissible as res gestae.” Id., 447 Pa. at 563, 291 A.2d 774. The Court went on to hold that the statements to the wife should not have been admitted because they were not “spontaneous utterances springing out of the act____ [but] were the result of consideration, and must be viewed as a narration or explanation of the past event.” Id., 447 Pa. at 565, 291 A.2d at 775. However, the Court concluded that while the statements to the physician were not admissible as “res gestae,” they nevertheless were admissible. The Court noted that “[t]he law in Pennsylvania ... has been that statements to a doctor were admissible insofar as they were necessary and proper for diagnosis and treatment and referred to symptoms, feelings and conditions.” Id., 447 Pa. at 566, 291 A.2d at 776. “Upon re-examining this rule,” id., the Court concluded that the statements to the physician on the cause of the accident should be admitted. Quoting McCormick, the Court held that “statements as to external cause when relevant to treatment and made to a doctor employed for that purpose are \i.e., should be admitted as] evidence of the fact stated ... particularly in actions for death where there were no eyewitnesses other than the victim____” Id.

The law has continued to develop the concept of the exception for statements of present bodily condition. Perhaps the most influential formulation of the exception is in the Federal Rules of Evidence, Rule 803(4), which makes admissible, “even though the declarant is available as a witness,” “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past and present symptoms, pains, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” And see United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981) (collecting cases and discussing “expansive approach” of F.R.Evid. 803(4), in particular whether statements may concern past symptoms and causes of injury). See also McCormick, supra at 842 (noting “dubious propriety” of various restrictions placed on admissibility of statements of present bodily condition, and approving F.R. Evid. 803(4)).

-d-

Finally, there is the exception for statements of present mental condition. Here it is important to distinguish between a case in which the declarant’s state of mind is itself relevant, and a case in which the declarant’s state of mind is relevant not in itself but as the basis of inferring that because his state of mind was such — and—such, the declar-ant took some future action. See, generally, McCormick, supra at 842 et seq. And see F.R.Evid. 803(3). As an example of the first sort of case: if it is relevant whether the declarant loved his wife, whether he did may be proved by a statement of how he regarded her. The leading example of the second sort of case is Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892), in which the statement, “I expect to leave Wichita with Mr. Hillmon”, was admitted on the reasoning that it showed the declarant’s intent to leave, and that his “intention of going, and of going with Hillmon, ... made it more probable both that he did go and that he went with Hillmon, than if there had been no proof of such intention.” Id. at 296, 12 S.Ct. at 913.

These principles have been recognized in our law, although the cases are sparse. A careful discussion appears in Ickes v. Ickes, 237 Pa. 582, 85 A. 885 (1912). There the action was by a wife against her husband’s father to recover damages for alienation of her husband’s affections, resulting in his desertion. One of the issues was whether the defendant father-in-law could show by a witness that eight or ten days before the husband’s departure, the witness had heard the husband accuse his wife of infidelity and her confession that she was pregnant by another man, and that the day before the husband’s departure, he had said that he was about to leave because he was not father of the child. The trial judge excluded this testimony on the objection that it was “[t]oo remote from the time of leaving to be a part of res gestae.” Id., 237 Pa. at 590, 85 A. at 887. The Supreme Court held that this was reversible error. After noting the distinction between “contemporaneous spontaneous exclamations growing out of and explanatory of an event” and “declarations relied upon solely to show an existing state of mind”, id. at 591, 85 A. at 887, the Court held that when evidence of

declarations indicating the state of mind at the time of their utterance ... is produced, sufficient to show a then present intention, or state of mind, it may be assumed to have continued and formed the motive which controlled the doing of a subsequent act following closely thereafter, if under all the surrounding circumstances one would actually associate the two together; and it is for the jury to draw the conclusion.
Id., 237 Pa. at 591, 85 A. at 888.

And see Smith v. Smith, 364 Pa. 1, 9, 70 A.2d 630, 633 (1950) (declaration of intent to stay in Florida held admissible on issue of domicile; Ickes v. Ickes, supra, cited).

-3-

We are now in a position to consider the admissibility of the evidence of Mr. Leichter’s statements to the police dispatcher, Officer Delaney, and Nurse Reese. Plainly, all of these statements were hearsay, for they were made out of court, and were offered for their truth — that Mr. Leichter was robbed and kidnapped at gun point, and that as a result he experienced physical distress, which lead to his death. We must therefore ask whether the evidence falls within any of the four exceptions to the hearsay rule identified in Commonwealth v. Pronkoskie, supra.

-a-

We may start with the present sense impression, or Houston Oxygen, exception, for it is readily apparent that this exception is not available. In the first place, in none of his statements did Mr. Leichter describe an event that he was then observing. It is true that in his statements over the telephone to the police dispatcher he described events— his abduction, robbery, and abandonment in the park — that had very recently occurred, and arguably, might be found to have occurred so soon after his description of them as to be “present” enough to be within the present sense exception; especially might this be said of his abandonment in the park. Even so, however, the exception is not available, for Mr. Leichter did not make his descriptive statements in the presence of another person who also was at the scene. As we have seen in discussing Houston Oxygen, the requirement that there be such a person is critical to providing the assurance of reliability needed to warrant admission of a statement as within the present sense impression. We are mindful of the fact that the opinion of the Chief Justice in Commonwealth v. Coleman, supra, may be read as not requiring the presence at the scene of someone in addition to the declarant; thus, the mother was not at her daughter’s apartment and therefore was unable to observe the events that her daughter was describing. However, it will be recalled that the mother was able to hear shouting in the background, so that there was at least some corroboration of the accuracy of her daughter’s description of what was happening.

-b-

At least one of Mr. Leichter’s statements was admissible as within the exception for statements of present mental condition, specifically, his statement to Nurse Reese, “I'm so frightened.” This evidence of mental condition was relevant to the determination of the cause of Mr. Leichter’s death. It is also arguable that Mr. Leichter’s statements to the police dispatcher were statements of present mental condition. At least, the responses of the dispatcher indicate that he understood Mr. Leichter as saying that he was frightened and worried. (See, e.g., Mr. Leichter’s statements, “I’m having a little trouble breathing,” and “The first time I ever had this happen”, and the dispatcher’s responses, “I know it’s tough to relax;” “But the worst is over ...; “I know it’s a frightening experience.”). Nevertheless, Mr. Leichter did not directly state his mental condition, as he did to Nurse Reese, and it is better to regard his statements to the dispatcher as not hearsay at all but rather as circumstantial evidence, that is, as evidence from which his mental condition could be inferred. In this regard, we note that the principle illustrated by Mutual Life v. Hill-mon, supra, is not implicated here, for there was no issue whether, because he was frightened, Mr. Leichter took some action in the future.

-c-

Many, and as we shall see, arguably all, of Mr. Leichter’s statements were admissible as excited utterances.

Appellant concedes that “there can be no doubt that Decedent’s having been kidnapped and robbed by three men at shotgun point was an event sufficiently startling to satisfy the first element” of the excited utterance exception, that is, that the declarant experienced a startling event. Brief for Appellant at 9 (citing Commonwealth v. Cooley, supra). He argues, however, that none of Mr. Leichter’s statements was a spontaneous reaction to that startling event. With regard to Mr. Leichter’s statements to the police dispatcher appellant points out that in response to a question of the dispatcher, Mr. Leichter stated that he did not think he needed to go to a hospital. N.T. 2.91. Appellant further notes that in his call to the dispatcher Mr. Leichter expressed concern about his wife, N.T. 2.32, and that when he arrived at the hospital with Officer Delaney, he declined a wheelchair, N.T. 2.40. Appellant maintains that these circumstances suggest that Mr. Leichter’s statements to the dispatcher and Officer Delaney were “so unhurried and reflective as to require a finding of non-spontaneity.” Brief for Appellant at 9 {quoting Commonwealth v. Little, supra). Appellant also argues that since Mr. Leichter’s statements to Nurse Reese were preceded by his statements to the police dispatcher and Officer Delaney, they lost the required spontaneity.

We are not persuaded by this argument. In our view, the record demonstrates that Mr. Leichter’s statements, even though made some time afterwards, were nevertheless a spontaneous reaction to a startling event. We may explain this conclusion by examination of three cases: Commonwealth v. Cheeks, supra; Commonwealth v. Little, supra; and Commonwealth v. Green, supra.

In Cheeks, after the victim had been stabbed, slow of gait as the result of a stroke, [he] walked directly to his sister’s home about five blocks distant. When he arrived his appearance was described “like he had been beat” and “crying.” Very shortly after his arrival, he told his sister that four unknown boys had assaulted and robbed him, and that one of the boys was wearing a patch over his eye.
423 Pa. at 69, 223 A.2d at 292 (footnote omitted).

After the victim had changed his clothes, he told his sister that “those boys did cut me.” Id., 423 Pa. at 70, 223 A.2d at 293. The entire series of events from the incident to the victim’s statements to his sister lasted from forty-five minutes to an hour. In holding the hearsay statements of the victim’s sister admissible, the Court stated that “[t]he conclusion is inevitable that the statements were spontaneously uttered, were directly related to the event and were not the result of reflection or design.” Id., 423 Pa. at 71, 223 A.2d at 293.

The facts of Little, on which appellant principally relies, may be usefully compared with the facts of Cheeks. In Little, the victim of a gunshot wound was found semi-conscious at about 3:00 a.m. One hour later, a police officer unsuccessfully attempted to interview him. The police officer returned at 9:15 a.m., and after a discussion of about five minutes, the victim identified appellant as his assailant. In holding the statement of identification inadmissible, the Court noted the six-hour delay between the incident and the statement, that the victim had been removed from the scene of the crime, that the victim may have had discussions with others during the six-hour delay, and that the statements were “anything but spontaneous.” 469 Pa. at 88, 364 A.2d at 917.

Green is like Little. There, the Court found that a statement given to the police following a rape lacked the requisite spontaneity because it was given in the form of narration, three and one-half hours after the incident, and after the victim had reported the incident both to her mother and to another investigating officer. 487 Pa. at 327-28, 409 A.2d at 374. The Court stated: “These circumstances negate the required spontaneity and prevent the statement’s admission as an excited utterance.” Id., 487 Pa. at 328, 409 A.2d at 374.

Mr. Leichter’s statements to the dispatcher and the circumstances surrounding it are strikingly similar to the statement of the victim in Commonwealth v. Cheeks, supra, and the circumstances there. This is so despite the fact that some of Mr. Leichter’s statements were in response to questions, that he showed concern for his wife, and that he stated that he didn’t think that he needed to go to the hospital. It is clear that Mr. Leichter was in grave distress and that his statements were not the product of reflection or design. He had just been abandoned in the park by his assailants. Although, as in Cheeks, he had to travel some distance to reach the telephone booth, still, his call to the police was placed only some fifteen to seventeen minutes after the incident. When he reached the police dispatcher, Mr. Leichter’s first words described the incident, and his ensuing statements to the dispatcher, and the dispatcher’s responses, leave no doubt that during the entire telephone call Mr. Leichter remained under the stress of the incident.

Mr. Leichter’s statements to Officer Delaney and Nurse Reese present somewhat different questions, for they implicate some of the concerns raised in Commonwealth v. Little, supra, and Commonwealth v. Green, supra. In Little, as we have indicated, the Court did not know from the record whether, in the six hours that intervened between the incident and the victim’s statement to the police, the victim had discussed the incident with others, and in Green, there was evidence of record that in the three and one-half hour time lapse, the victim had discussed the incident with two other persons before giving the statement in question. Thus in both cases the lapse of time, the narrative form of the statements, and the fact that the victim had or may have had the opportunity to reflect upon the incident and to discuss it with others, in combination compelled the conclusion that the statements were not spontaneous. Here, the circumstances surrounding the statements to Officer Delaney and Nurse Reese were far different. The statements were made within one-half hour to forty-five minutes of the incident. They were made under the continuing and uninterrupted stress arising from the incident. They repeated, without alteration, the statement already made to the dispatcher. And Mr. Leichter had no opportunity to discuss the incident with anyone else, or to reflect upon it. Thus, despite the fact that Mr. Leichter’s statements to Officer Delaney and Nurse Reese appear from the record to have been in narrative form, and were preceded by at least one other account of the incident, we are satisfied that they were free of reflection and thus admissible as excited utterances.

-d-

Finally, we also conclude that Mr. Leichter’s statements to Nurse Reese were admissible as statements of present physical condition, quite independently of their admissibility as excited utterances. The statements described Mr. Leichter’s physical condition; they were made so that his condition could be diagnosed and treated; and while they described the cause of his condition, — his abduction and robbery — this description was immediately relevant to his diagnosis and treatment, which is to say, in giving it, he must have thought of himself as giving information that would enable the hospital to help him. The statements therefore carried a “strong assurance of reliability”, McCormick, supra at 839, and were properly admitted.

We recognize that this conclusion may seem to go beyond the holding in Cody v. S.K.F. Industries, Inc., supra, but we are satisfied that it does not. It is true that in Cody the statements were to a doctor, rather than to a nurse. However, as we read Cody, the important fact there was that the statements were to medical personnel, not that they were to a doctor rather than to a nurse. The Court’s concern was with the probable reliability of the statements, and as to that, it would make little if any sense to distinguish between a doctor and a nurse; a patient in distress is unlikely to lie to either. As we have mentioned, under the Federal Rules of Evidence, F.R.Evid. 803(4), and in McCormick’s view, it is immaterial whether the statements were made to a doctor or nurse; “[a statement] made to a hospital attendant, ambulance driver, or member of the family may qualify.” McCormick, supra at 840 (footnote omitted). If the law in Pennsylvania has moved this far, then Mr. Leichter’s statements to Officer Delaney, on the way to the hospital, regarding his being a heart patient and needing oxygen, would also be admissible as statements of present physical condition. However, we need not now decide this point.

Affirmed.

      . In Craven, the declarants were prisoners in Holmesburg Prison in Philadelphia. They had been sent to the "Klondike," an area where as punishment prisoners received reduced rations and were subjected to steam heat. Twenty-five prisoners were thus tortured over one weekend, and four of them died. The prisoners described the cells in the “Klondike” as “like ovens” with "the doors and walls ... so hot that it was impossible to touch them without receiving burns.” The warden was convicted of involuntary manslaughter, and on appeal it was argued that testimony of "complaints of the prisoners and of requests to the guards that [the warden] come to Klondike,” 138 Pa.Super. at 442, 11 A.2d at 194, should not have been admitted. We disagreed, stating: "This evidence had a bearing on the inmates’ sufferings and their efforts to obtain relief during this period. These contemporaneous statements were voluntarily and spontaneously made at the time of the occurrence and under circumstances which dispel the idea of a design or motive for misrepresentation or invention, and were admissible as part of the res gestae.” Id.

      . It was also held that Mrs. Reichman’s testimony was not admissible as a spontaneous utterance.

      . In its brief the Commonwealth argues that all of Mr. Leichter’s statements were also independently admissible as dying declarations. Brief for Appellee at 7 n. 4. To qualify as a dying declaration, the statement must be made "by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.” F.R.Evid. 804(b)(3). See Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Commonwealth v. Farrior, 312 Pa.Super. 408, 458 A.2d 1356 (1983). Here the record does not show that Mr. Leichter believed his death imminent. Indeed, he told the dispatcher, "I don’t think I have to go to the hospital.” It is true that when he did go to the hospital, he told Nurse Reese that he was having trouble breathing and was frightened, and he may in fact have been afraid of dying. The more natural inference to be drawn from this statement, however, is that he was speaking to Nurse Reese, not conscious of uttering his last words, but to seek her medical help.


text:
    494 A.2d 438
    Robert J. EMERY, Sr., Administrator of the Estate of Robert J. Emery, Jr., Deceased v. E. Vaughn WEED, Frank Weed and Henry Weed, Individually and T/A Weed Chevrolet Co., Appellants.
    Superior Court of Pennsylvania.
    Argued May 2, 1984.
    Filed June 7, 1985.

      Thomas J. Profy, III, Bristol, for appellants.
    William L. Goldman, Doylestown, for appellee.
    Before SPAETH, President Judge, and BROSKY and BECK, JJ.
   SPAETH, President Judge:

This action arises out of an agreement by appellee’s son to purchase a Pacer Corvette automobile from appellant, a Chevrolet dealer. Appellee’s son made several downpay-ments, but before payment was made in full, the Pacer was stolen from appellant’s premises. Shortly afterwards, ap-pellee’s son died. Appellee, as his son’s administrator, then sought to cancel the agreement and to recover his son’s downpayments. The trial court sitting en banc, one judge dissenting, held that appellee is entitled to this relief; in doing so, the court dismissed appellant’s counterclaim that it is entitled to keep the downpayments, and also, to recover damages in the amount of the difference between the purchase price of the Pacer and its market value on the date appellee sought to cancel the agreement. We affirm.

On June 7,1978, appellee’s son, Robert Emery, Jr., signed an agreement to purchase from appellant, for $25,000, a 1978 Chevrolet “Pacer Corvette,” serial number 1Z87L85901303. (By “appellant” we mean the partnership Weed Chevrolet Company as well as its three partners.) When appellee’s son signed the agreement, he paid appellant $10,000 toward the purchase price. R.R. 114a. On June 27, July 12, August 10, and September 28, 1978, he made additional payments, totaling $2,229.90. R.R. 115a-18a. On or about November 5, 1978, the Pacer was stolen from appellant’s premises. N.T. 39. On November 15, 1978, appellee’s son died. N.T. 8. Appellee then sought to cancel his son’s agreement for the purchase of the Pacer and demanded a refund of the $12,229.90 paid toward its purchase. N.T. 10-12. When appellant refused, appellee instituted this action. The testimony that was given at the ensuing trial may be summarized as follows.

Edward A. Marcella, who sold the Pacer to appellee’s son, testified that some 6,500 Pacers were manufactured in 1978, each Chevrolet dealer being entitled to one. N.T. 35-37. Mr. Marcella further testified as follows:

Q. What took place physically with the car after the sales contract was entered into with Mr. Emery [ap-pellee’s son]?
A. Well, we continued to have it on the showroom floor; and after Mr. Emery made some payments to us we decided to take it off the floor because we were getting inquiries, and the fact it was sold we felt we would take it and put in our new prep area in the back where we locked it up and covered it.
Q. Did Weed Chevrolet entertain any offers or proposals or in any way attempt to sell the motor vehicle after that contract was entered into with Mr. Emery?
A. Anybody asked me, I told them it was sold. We didn’t make any attempt.
Q. Was that company policy?
A. Yes, sir.
Q. And you say it was sometime shortly after June 7th it was taken out of the showroom to the prep area?
A. Yes, sir.
Q. Was it covered?
A. Yes, sir.
Q. Was it locked?
A. Definitely locked.
Q. Was it in an enclosed building?
A. Yes, sir.
N.T. 38-89.

E. Vaughn Weed testified to the same effect, N.T. 50, as did Frank Polizzi, appellant’s sales manager, N.T. 81.

Fred Totten, principal of Totten Chevrolet in Florence, N.J., testified that he had agreed to sell appellant the Pacer Corvette alloted to him, which he described as “[m]y 1978 Limited Edition”, as a replacement for the Pacer stolen from appellant’s premises. N.T. 67-69. Appellant attempted to prove by Mr. Totten that all Pacer Corvettes were identical, except for their serial numbers, N.T. 72-73, but the trial court sustained an objection to such testimony, stating: “He told us he never saw the one that was the subject of this contract. He never saw it, and I presume he did not see every one of the other 6,500 plus ones. Now, if you lay some foundation to show me that he knows that each one was exactly the same in every significant detail, that is another matter.” N.T. 73. Mr. Totten then testified without objection that all Pacer Corvettes are painted black and silver. N.T. 75.

Mr. Polizzi testified that when appellee’s son learned that the Pacer Corvette sold him had been stolen, he visited appellant’s showroom:

He wanted to know about his car. He had read or heard, I guess, that it was stolen. In the meantime, Mr. Weed told me he had one available, so I told Emery that we had one identical to the one that was stolen available for him.
Q. What did—
A. He said, good, that’s all I want. And he left and he went back to Mr. Marcella.
N.T. 81-82.

Mr. Marcella testified that appellee’s son did meet with him, and “I just asked him if everything was okay. He said, 'Fine.’ That was it.” N.T. 40.

On the basis of Mr. Marcella’s and Mr. Polizzi’s testimony, appellant argues that appellee’s son agreed to accept as a replacement for the Pacer Corvette sold him the Pacer that Mr. Totten had agreed to provide, and that therefore the agreement was modified. We may dispose of this argument summarily. The trial court did not believe Mr. Marcella’s and Mr. Polizzi’s testimony, characterizing it as “out of the whole cloth.” Slip op. at 3. We shall not disturb that finding. Rogers v. Hammett, 229 Pa.Super. 6, 323 A.2d 394 (1974).

Appellant argues nevertheless that it is entitled to keep the downpayments appellee’s son made, and also, to recover damages in the amount of $12,000, this representing the difference between the purchase price of the Pacer Corvette ($25,000) and its market value as of the date appellee sought to cancel the contract (which appellants say was $13,000). This argument turns upon 13 Pa.C.S. § 2613, which provides:

When the contract requires for its performance goods identified when the contract is made and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer ... then
(a) if the loss is total the contract is avoided;
Id.

White and Summers have described Section 2-613 of the Uniform Commercial Code, on which 13 Pa.C.S. § 2613 is based, as follows:

[Sjection 2-613 frees the seller from his obligation “if the loss is total,”---- That limited exception to the risk of loss rule applies only in the case of “goods whose continuing existence is presupposed by the agreement.” § 2-613, Comment 1. It has no application to the typical case in which the seller is selling garden variety goods to a buyer under a usual sale of goods contract.
White and Summers, Uniform Commercial Code 175 n. 2 (2d ed. 1980).

Most frequently it is the seller who seeks to prove that Section 2-613 applies, for if the section does not apply, the seller may be liable for loss-of-bargain damages, or the difference between the contract price and the market price, see, e.g., 13 Pa.C.S. § 2713, or specific performance may be ordered, id. § 2716. If Section 2613 does apply, however, and the loss is total, the buyer is limited to cancelling the contract and receiving a refund of his downpayment. In Conway v. Larsen Jewelers, Inc., 104 Misc.2d 872, 429 N.Y.S.2d 378 (1980), for example, the action was for the market price of a necklace that had increased in value between the date the plaintiff made a downpayment on its purchase and the date it was stolen. The court found that the necklace was unique and that Section 2-613 applied, and accordingly held that the plaintiff was limited to recovering her downpayment. In Carlson v. Nelson, 204 Neb. 765, 285 N.W.2d 505 (1979), the court held that the party seeking to take advantage of Section 613 has the burden of satisfying each provision of the section. Thus, there, to defeat the buyer’s claim for damages, the seller was required to prove that the damage to the goods while in his possession occurred without his fault.

To date, the cases that have arisen under Section 2-613 have largely involved damage to or destruction of mass quantities of goods where the buyer asserts a claim for damages and the seller maintains that its liability is limited by Section 2-613. Bende & Sons, Inc. v. Crown Recreation, Inc., Kiffe Products Division, 548 F.Supp. 1018 (E.D. N.Y.1982), aff'd 722 F.2d 727 (2d Cir.1983) is illustrative. There, Bende agreed to sell combat boots to Ghana and contracted with Kiffe to supply them. The boots Kiffe shipped were destroyed in a train derailment. The court stated:

Even on the assumption that there was a total loss, the defendant failed to satisfy its burden of showing that the combat boots involved in the derailment were the particular boots specified in the contract ... Identifying the goods by kind and amount is insufficient; rather, there “must be a meeting of the minds by the parties as to the particular or actual goods designated” ... Although it is often difficult to determine whether goods have been identified to the contract, several factors militate against such a conclusion here.
First, while the parties understood that the boots were to come from Korea, nothing in the contract designated the particular manufacturer of the goods ...
Second, at the time Bende sent the purchase orders Kiffe had not yet entered into a contract with its supplier. Thus, the purchase orders could not have specifically identified any particular combat boots____
Finally, in order to be “identified” within the meaning of Section 2-613 of the U.C.C., the boots must have been “shipped, marked, segregated or otherwise designated at the time the sale was made ...” Because there were no Bende or Korean markings either on the boots or on the containers used to transport the goods, any combat boots would have fit the general description outlined in the purchase orders.
Id. at 1021 (citations omitted; emphasis in original).

See also Bunge Corporation v. Recker, 519 F.2d 449 (8th Cir.1975) (soy beans); Dreyfus Co., Inc. v. Royster, 501 F.Supp. 1169 (E.D.Ark.1980) (same); Semo Grain Co. v. Oliver Farms, Inc., 530 S.W.2d 256 (Mo.App.1975) (same); Valley Forge Flag Company, Inc. v. New York Dowel & Moulding Import Co., Inc., 90 Misc.2d 414, 395 N.Y.S.2d 138 (1977) (dowels).

Here, of course, appellee as the buyer has not claimed damages; he simply asks that his son’s downpayments be refunded. It is appellant, the seller, that asserts that Section 2613 does not apply to this case. Since appellee relies on Section 2613, it was appellee’s burden to prove that each provision of Section 2613 has been satisfied.

With respect to several of these provisions, there is no dispute. The parties agree that the Pacer Corvette “sufferfed] casualty without fault of either party,” 13 Pa. C.S. § 2613, supra, and that the casualty was “total” and occurred “before the risk of loss [had] passfed] to the buyer," id. The remaining provision of Section 2613 that appellee had to prove was satisfied is whether “the contract required] for its performance goods identified when the contract was made.” 13 Pa.C.S. § 2613. As to this provision the parties are in disagreement.

The item “identified when the contract was made” was the Pacer Corvette identified in the agreement of sale by its serial number. Appellant argues that it was not required by the agreement to deliver that very Pacer because, it asserts, “[e]ach such automobile was identical to all of the others manufactured, down to the details with respect to the paint job and the extras.” Brief for Appellant at 14. This assertion, however, is not supported by the record, which only shows that all Pacer Corvettes were painted black and silver; as will be recalled, the trial court disallowed testimony to the effect that all Pacer Corvettes were identical. Quite apart from its identification in the agreement by serial number, the Pacer was identified by being removed from the display showroom, after the agreement was signed, and being covered and locked. From this it may be inferred that there was “a meeting of the minds as to the particular or actual goods designated.” Bende & Sons, Inc., supra. This agreement by appellant and appel-lee’s son that appellant would deliver the Pacer identified in the contract was in no way affected by Mr. Totten’s later apparent willingness to provide appellant with a different Pacer. Appellant argues that “the parties ... did not consider the particular automobile [the Pacer identified in the agreement by its serial number] to be unique ...” Brief for Appellant at 23. However, Section 2613 does not require such proof; it only requires that appellee establish that the “contract require[d] for its performance [the Pacer Corvette] identified when the contract [was] made.” He has done so.

Affirmed.

      . We note that no objection was made to the testimony of Messrs. Polizzi and Marcella. See Dead Man’s Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, 42 Pa.C.S. § 5930; Estate of Kofsky, 487 Pa. 473, 409 A.2d 1358 (1979); Visscher v. O’Brien, 274 Pa.Super. 375, 418 A.2d 454 (1980).

      . If damage to the goods is partial, the buyer may "at his option either treat the contract as avoided, or accept the goods with due allowance from the contract price for the deterioration or the deficiency in quantity but without further right against the seller." 13 Pa.C.S. § 2613(2).

      . Appellant principally relies upon Conway v. Larsen Jewelers, Inc., supra, and Barbarossa and Sons, Inc. v. Iten Chevrolet, Inc., 265 N.W.2d 655 (Minn.1978). We have discussed Conway. Barbarossa is not in point for it arose under Section 2-615, not Section 2-613, of the Uniform Commercial Code.

      . The trial court held that risk of loss had not passed to appellee because appellant was holding the automobile as a bailee and the conditions of 13 Pa.C.S. § 2509(b) had not been met. Majority slip op. of trial court, at 4. We do not believe that appellant was a bailee, for it was holding the automobile not for the benefit of appellee’s son, but to assure payment. We nevertheless agree with the trial court that risk of loss had not passed, but we base that conclusion on 13 Pa.C.S. § 2509(c) (“In any case not within subsection (a) or (b), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant ...”).

      . In thus concluding that the requirements of Section 2613 have been satisfied, we have not overlooked the statement, quoted on pages 440-441, supra, by White and Summers that Section 2613 "has no application” to the "usual sale” of “garden variety goods.” At $25,000, the Pacer was hardly a “garden variety” item. In any event, although we need not decide the point, there may be circumstances in which a contract for the sale of “garden variety goods” might come within Section 2613, where the contract was not “a usual sale of goods contract," White and Summers, supra, and the goods were described with particularity in the contract. Valley Forge Flag Company, Inc., v. New York Dowel Moulding Import Co., supra, at 415, 395 N.Y.S.2d at 139.