author: NEALON, J.,

text:
    Commonwealth v. Serge

      C.P. of Lackawanna County,
    no. 01-CR-260.

      Amy Shwed, for plaintiff.

      Joseph D’Andrea, for defendant.
    September 14, 2001
   NEALON, J.,

The Commonwealth has filed a motion in limine which raises an issue of first impression in this Commonwealth: whether the prosecution may present a computer-generated animation as demonstrative evidence to illustrate the expert opinions of its forensic pathologist and crime scene reconstructionist as to how a fatal shooting allegedly occurred. Assuming that the Commonwealth satisfies the requirements of Pa.R.E. 401 and 901 by properly authenticating its animated exhibit as a fair and accurate depiction of its experts’ reconstruction of the relevant crime, the Commonwealth will be permitted to use the proffered animation at the time of trial provided that the final version of the videotape animation does not include any inflammatory features which may cause unfair prejudice as proscribed by Pa.R.E. 403. Additionally, to ensure that the computer-generated visualization does not unfairly prejudice the defendant, the court will provide a cautionary instruction to the jury during the trial and will require pretrial disclosure of the exhibit, to the defense consistent with the reasoning set forth below.

I. FACTUAL BACKGROUND

The Commonwealth has charged the defendant with first-degree murder and third-degree murder in connection with the shooting death of his wife, Jennifer Serge, on January 15, 2001. Although the defendant acknowledges killing his wife, he contends that he acted in self-defense as he was being attacked by her with a knife. Alternatively, in light of the fact that defendant’s blood alcohol level was measured at .10 percent almost nine hours after the shooting, defendant maintains that he was too intoxicated to form the specific intent to kill which is required for first-degree murder or the degree of malice aforethought necessary for a third-degree murder conviction. (See transcript of preliminary hearing on 2/ 9/01, pp. 103-107.)

The Commonwealth intends to offer the testimony of a forensic pathologist, Gary W. Ross M.D., who performed the autopsy on Jennifer Serge. Dr. Ross has concluded that the decedent suffered two gunshot wounds, one from a bullet which entered her back and exited her abdominal region in a slightly downward direction, and another fatal wound from a bullet which originally passed through her right upper arm before penetrating her right chest cavity, piercing her lungs and heart and exiting the left side of her chest in a downward trajection. (Id., pp. 46-53, 57-59.) Although Dr. Ross classified the manner of death as criminal homicide, he could not state with a reasonable degree of medical certainty at the time of the preliminary hearing which of the two bullets had entered the victim’s body first. (Id., pp. 45-46, 69-70.)

The Commonwealth will also offer the testimony of a firearm and toolmark examiner, Trooper Todd M. Neumyer, who will opine that the residue from one gunshot reflects that the muzzle of the defendant’s .44 Remington magnum was only 21 inches from the decedent at the time it was fired. (See Commonwealth’s motion in limine, ¶10.) In addition, the Commonwealth intends to call a crime scene reconstruction expert, Trooper Brad R. Beach, who has prepared a series of diagrams based upon measurements and physical evidence collected at the scene of the crime. Specifically, Trooper Beach has drafted 14 scale diagrams depicting (1) the crime scene, (2) room dimensions, (3) body positions, (4) bullet impact dimensions portraying where the bullets struck certain objects in the room, (5) the dynamics of the three bullet paths, and (6) the dimensions of the distances between the shooter, victim and objects in the room, including diagrams depicting the “z-axis” or vertical measurements and dynamics. (See Trooper Beach report dated 8/14/01, pp. 3-18.) Furthermore, as a result of his subsequent conference with Trooper Beach during which time they reviewed the autopsy findings and crime scene data, Dr. Ross recently authored a supplemental report stating that:

“I am of the opinion to a reasonable degree of medical certainty that the first gunshot wound to inflict Jennifer Serge was sustained to her right back and listed in my autopsy report as gunshot wound no. 1. The second gunshot which she sustained to the right arm and chest is listed in my autopsy report as no. 2.
“It is also apparent after review of the crime scene photographs that both the body and specifically the right arm of Jennifer Serge had been moved sometime between her death and the time the photographs were taken because of the distribution pattern of blood on the clothing of the decedent.” (See letter dated 8/16/01 from Dr. Gary W. Ross to Asst. District Attorney Amy Shwed.)

The Commonwealth has filed a “motion in limine: crime re-enactment” seeking leave of court to present “the video re-enactment of the murder of Jennifer Serge” by a demonstrative evidence company which “can accurately reconstruct the shooting of Jennifer Serge using the autopsy report, firearm report, crime scene photographs and crime scene measurements.” (See Commonwealth’s motion in limine, ¶13.) The Commonwealth submits that “[t]he video will evidence the fact that the defendant acted with specific intent to kill and malice” and “will negate any claim of self-defense put forth by the defendant.” (See Commonwealth’s brief in support, p. 3.) The defendant counters that the Commonwealth’s motion in limine should be denied since (a) “the Commonwealth has not identified the actors who will portray the defendant and Jennifer Serge,” (b) “the creator of the video will be producing what amounts to [be] his opinion of how the offense occurred” and (c) the proffered animation will “usurp the function of the jury as finder and interpreter of fact” by compelling the jurors to “accord greater weight to the video reconstruction without consideration of the weakness of the opinion or opinions upon which it is based.” (See defendant’s brief in opposition, pp. 1-4, 10.)

An evidentiary hearing was conducted on July 30, 2001, at which time the Commonwealth introduced the testimony of Andre Stuart of 21st Century Forensic Animations which has been retained to prepare the demonstrative reconstruction for the Commonwealth. Mr. Smart testified that his company does not produce computer-generated “re-enactments,” but instead merely creates a “visual exhibit” or “animated exhibit.” to be utilized during an expert witness’ testimony. (See transcript of proceedings on 7/30/01, pp. 13, 20, 23, 39, 44-45, 72-73.) 21st Century provides a graphical presentation of another expert’s opinion and does not present its own opinion or even furnish its interpretation of another expert’s conclusions. (Id., pp. 25-27, 36, 54-55, 59, 63-64, 72, 77.) Rather, based upon the dimensional data that is secured from the expert, the computer and its animation software package compile 30 images per second and 21st Century transforms those images into a videotape where they can be perceived as motion or animation by the human eye. (Id., pp. 25-26, 49, 53, 55.)

Mr. Stuart attested that the hardware (IBM) and software (AutoCAD and 3-D Studio Max developed by Autodesk) used by 21st Century in preparing a visual exhibit are generally accepted in the field of computer science. (Id., pp. 27-29.) If the Commonwealth’s motion in limine is granted, 21st Century will produce an animated exhibit to demonstrate the opinions formulated by Dr. Ross and Trooper Beach concerning the manner in which Jennifer Serge was killed. To that end, the Commonwealth seeks to present a visual exhibit to illustrate that the defendant used a deadly weapon on a vital part of the human body. The Commonwealth further intends to utilize the animated exhibit in an effort to refute the defendant’s self-defense claim by demonstrating its experts’ theory that the victim was shot first in the back rather than the arm. (Id. at pp. 65-68.) Although the putative animation had not yet been prepared at the time of hearing, the Commonwealth did submit for review the videotape exhibit that was developed by 21st Century in Commonwealth v. Scher, no. 1996-CR-174 (Susq. Cty.), rev ’d, 732 A.2d 1278 (Pa. Super. 1999), app. granted, 561 Pa. 693, 751 A.2d 189 (2000), as an exemplar of the exhibit to be created in this case. (Id. at pp. 29-34.)

The Commonwealth submits that the methodology employed by 21st Century is generally accepted as reliable within the relevant scientific community such that it is admissible under Frye v. U.S., 293 F. 1013 (D.C.Cir. 1923), as adopted in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977) and its progeny. See Blum v. Merrell Dow Pharmaceuticals Inc., 564 Pa. 3, 764 A.2d 1, 4 (2000) (originally granting allocatur to consider whether Pennsylvania should follow the scientific evidence standard articulated in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), but later finding it “jurisprudentially unsound ... to utilize this case as a vehicle to evaluate the wisdom of such a change” from Frye to Daubert). By order dated August 13,2001, the Commonwealth was directed to produce the report of Trooper Beach and the supplemental report of Dr. Ross by no later than August 20, 2001. In addition to timely submitting its expert reports, the Commonwealth filed still images of 21st Century’s visual exhibit in this case on September 4, 2001, and thereafter produced an initial draft of the animation itself on September 10, 2001, and a revised version on September 14, 2001. Upon the filing of those materials, this matter became ripe for disposition.

II. DISCUSSION

(A) Standard of Review

Pursuant to Pa.R.E. 402, all relevant evidence is generally admissible while evidence that is not relevant is inadmissible. Commonwealth v. A.W.RoblTransport, 747 A.2d 400, 404 (Pa. Super. 2000), app. denied, 564 Pa. 701, 764 A.2d 1063 (2000). Evidence is deemed relevant under Pa.R.E. 401 if it “logically tends to prove or disprove a material fact, make such a fact more or less probable, or support a reasonable inference regarding a material fact’s existence.” Commonwealth v. Weaver, 768 A.2d 331, 332 (Pa. Super. 2001). See also, Commonwealth v. Farmer, 758 A.2d 173, 180 (Pa. Super. 2000) (“[ejvidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence’ ”), app. denied, 565 Pa. 671, 771 A.2d 1279 (2001). “The question of whether evidence is relevant and, therefore, admissible is a determination that rests within the sound discretion of the trial court and will not be reversed on appeal absent a showing that the court clearly abused its discretion.” Fisher v. North Hills Passavant Hospital, 781 A.2d 1232, 1234 (Pa. Super. 2001).

Even if evidence is considered to be relevant, it may nonetheless be excluded under Pa.R.E. 403 “if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Commonwealth v. Rouse, 752 A.2d 1041, 1046 (Pa. Super. 2001) (quoting Pa.R.E. 403). However, as the Superior Court of Pennsylvania has observed, “since all Commonwealth evidence in a criminal case will be prejudicial to the defendant, exclusion of otherwise relevant evidence will only be necessary where the evidence is so prejudicial that it may inflame the jury to make a decision based upon something other than the legal propositions relevant to the case.” Commonwealth v. Kitchen, 730 A.2d 513, 519 (Pa. Super. 1999). Stated otherwise, “[ejvidence is prejudicial not where it merely hurts a party’s case, but where it tends to fix a decision which has an improper basis in the minds of the jury.” Fisher, supra at 1234.

Those principles which govern the admissibility of evidence generally likewise apply to the use of demonstrative evidence. See Commonwealth v. Schroth, 479 Pa. 485, 489, 388 A.2d 1034, 1036 (1978) (demonstrative evidence “may be admitted so long as it has relevance and can assist the jury’s understanding of the facts of the case before it”). Thus, “demonstrative evidence is admissible if its probative value outweighs the likelihood of improperly influencing the jury.” Pascale v. Hechinger Co. of Pa., 426 Pa. Super. 426, 437, 627 A.2d 750, 755 (1993). The trial court is vested with considerable discretion in considering the admissibility of demonstrative evidence, Commonwealth v. Lee, 541 Pa. 260, 274, 662 A.2d 645, 652 (1995), and “it is not for an appellate court to usurp the function of the trial court to balance the alleged prejudicial effect of the evidence against its probative value.” Commonwealth v. O’Shea, 523 Pa. 384, 400, 567 A.2d 1023, 1030 (1989), cert. denied sub nom., O’Shea v. Pennsylvania, 498 US. 881 (1990). Accord Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987) (mannequins, which were used to mark the location of fatal head injuries, were objectively utilized to assist an expert witness during his testimony and were therefore admissible in a murder prosecution).

(B) Computer-Generated Exhibits

Since as early as Perma Research and Dev. v. Singer Co., 542 F.2d 111, 115 (2nd Cir. 1976), cert. denied, 429 U.S. 987 (1976), courts have struggled with the admissibility of computer-generated exhibits (CGE’s) either as demonstrative evidence to illustrate an expert’s opinion or as the substantive basis for an expert witness’ conclusion. CGE’s first gained prominence in civil proceedings where they were “used in the courtroom by civil litigators for reconstructing accidents, including automobile and truck accidents, aircraft collisions, construction equipment accidents, and industrial accidents, as well as in patent litigation.” Pierce v. State, 718 So.2d 806, 808 (Fla. App. 4th Dist. 1997). As computers became smaller and more efficient and animation software became more accessible, the cost of producing CGE’s decreased and their use in the courtroom became more prevalent. See D’Angelo, The Snoop Doggy Dogg Trial: A Look at How Computer Animation Will Impact Litigation in the Next Century, 32 U. San. Fran. L. Rev. 561, 562-63 (Spring 1998); Kousoubris, Computer Animation: Creativity in the Courtroom, 14 Temp. Envtl. L. & Tech. J. 257, 258-59 (Fall 1995). Consequently, “[t]he use of computer-generated graphics and animation as evidence is a growing trend in the Commonwealth, as it is in courtrooms all across the land.” Gosser, 31 S.W.3d at 901.

Computer animations are no longer confined to civil litigation and “[w]ith advancements in the field of crime scene reconstruction, the widespread use of video, and advances in computer technology, video reenactments and computer-aided crime scene reconstruction are making their way into the courtroom in the trial of criminal cases.” Harris v. State, 13 P.3d 489, 493 (Okla. Crim. App. 2000), cert. denied sub nom., Harris v. Oklahoma, 121 S.Ct. 1971 (U.S. 2001). For example, CGEs have been admitted in prosecutions involving vehicular homicide, see Pierce, supra, criminally negligent child abuse, see People v. Cauley, 2001 WL 618578 (Colo. App. 2001) (video animation of shaken baby syndrome), and murder charges. See People v. Hood, 53 Cal. App. 4th 965, 62 Cal. Rptr.2d 137 (Cal. App. 4th Dist. 1997) (computer animation of shooting), cert. denied sub nom., Hood v. California, 522 U.S. 1093 (1998). Furthermore, CGEs are being employed in the courtroom both by the prosecution, see Mintun v. State, 966 P.2d 954 (Wyo. 1998), and the defense. See People v. McHugh, 124 Misc.2d 559, 476 N.Y.S.2d 721 (1984) (computer reenactment of fatal car crash to demonstrate defendant’s version of the accident). As one commentator has observed, “criminal trials are on the verge of a technological revolution that will allow lawyers to transform experts’ dry, verbal testimony into dynamic, TV-like shows that can mentally transport jurors to crime scenes and play out for them an advocate’s version of events.” Hennes, Manufacturing Evidence for Trial: The Prejudicial Implications of Videotaped Crime Scene Re-enactments, 142 U. Pa. L. Rev. 2125, 2129 (June 1994). The advent of such computer technology in criminal trials has also created new evidentiary issues for the bench and bar.

(C) Pennsylvania Precedent

No Pennsylvania appellate court has yet to address the use or admissibility of computer-generated animation to illustrate an expert witness’ opinion in a criminal proceeding. More than a decade ago, the Supreme Court of Pennsylvania granted allocatur in Commonwealth v. Klinghoffer, 370 Pa. Super. 648, 533 A.2d 1075 (1987) (memorandum), app. granted, 518 Pa. 616, 541 A.2d 744 (1988), to consider the evidentiary foundation required for an expert in “vehicular dynamics” to offer an opinion that was generated solely by a computer program known as “Apple Crash.” However, a majority of the court later dismissed that appeal as having been improvidently granted, thereby producing a sharply worded dissent protesting that the appeal should have been heard since it “squarely presented] an issue of substantial importance in our increasingly computerized society, namely the scope of the evidentiary foundation which should be required prior to the admission of a computer-generated expert opinion on a critical issue.” Commonwealth v. Klinghoffer, 522 Pa. 562, 563, 564 A.2d 1240, 1241 (1989) (Larsen, L, dissenting).

In Commonwealth, Department of Environmental Resources v. Al Hamilton Contracting Co., 665 A.2d 849 (Pa. Commw. 1995), the Commonwealth Court considered an analogous issue involving the admissibility of a map containing contour lines and markings that had been drawn by a computer and which reportedly represented the location of acid mine drainage discharge areas. The Environmental Hearing Board had refused to permit the Department of Environmental Resources to introduce the map and held that it “was inadmissible under the Frye test since the department failed to establish that the method of producing the computer-generated structure contour lines was generally accepted within the relevant scientific field of hydrogeology.” Id. at 852. On appeal, the department argued that the map was “not scientific evidence and therefore the test for its admissibility should be whether it accurately represents what it purports to represent.” Id. Although the Commonwealth Court agreed with the department’s proffered standard for admission, it nevertheless affirmed the EHB’s ruling by concluding that the department had not satisfied its burden of establishing that the exhibit accurately portrayed what it purported to depict. Id. at 852-53. Regrettably, the Al Hamilton Contracting Co. decision does not squarely address the use of computer-generated animations as demonstrative evidence to exemplify an expert opinion.

Since the time of the Al Hamilton Contracting Co. decision in 1995, the issue of computer-generated evidence has surfaced in only one reported Pennsylvania case, Quigg v. Brown, 28 D.&C.4th 104 (Phila. Cty. 1996), aff’d memorandum, 455 Pa. Super. 686,687 A.2d 866 (1996), where a plaintiff introduced an animation that had been prepared by “21st Century Graphic Productions” to demonstrate an expert’s opinion as to how an accident had allegedly occurred. Following a defense verdict, the plaintiff filed post-trial motions asserting that the trial court had not properly described the computer animation to the jury. Id. 28 D.&C.4th at 126. However, it was unnecessary for the Quigg court to analyze the admissibility of animated exhibits in Pennsylvania since the CGE question had been decided in favor of the plaintiff prior to trial and “[a]ny possible error in the manner of presentation of the computer animation or cartoon was to the detriment of the defense.” Id. at 129.

In its legal brief, the Commonwealth relies upon Commonwealth v. Impellizzeri, 443 Pa. Super. 296, 661 A.2d 422 (1995), and Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139 (2000), in support of its contention that the putative animation is admissible. In Impellizzeri, the defense investigator testified that the victim was too short to climb through the basement window from which she allegedly escaped after being sexually assaulted by the defendant. During its rebuttal, “the prosecution presented a videotape showing a female of the same height and weight as the victim crawling out of [defendant’s] basement.” Id. at 307, 661 A.2d at 428. On appeal, the Superior Court upheld the admission of the videotape and found that it had been properly authenticated and was relevant to counter the defense version of events by demonstrating that “it was possible for someone of the victim’s stature to escape from the basement window.” Id. at 310, 661 A.2d at 428-29.

The Impellizzeri holding is not directly relevant to the animation issue at hand since it involved a videotape portraying live actors and “was not an actual depiction of the criminal episode----” Id. at 309, 661 A.2d at 428. Similarly, the Spotz decision concerned the admissibility of videotape footage of the actual crime scene and the route traveled by the vehicles which were operated by the defendant and his accomplice during the kidnapping of the victim. See Spotz, supra at 520-22, 756 A.2d at 1151-52. Moreover, the sole case cited by the defendant in his opposing brief likewise involved the use of a videotape depicting live actors (police officers) re-enacting the crime. See Lopez v. State, 651 S.W.2d 413, 414-15 (Tex. App. 1983) (“the concept of recreating human events with the use of actors is a course of conduct that is fraught with danger” since “[t]he general appearance of an actor, his facial expression or slightest gesture whether intended or not may sway a juror who has listened to lengthy testimony.”).

None of the case law cited by the parties deals, with the use of an animated exhibit prepared by a computer. Although the Al Hamilton Contracting Co. decision addressed the issue of a static exhibit (i.e., map) that included features which had been drafted by a computer program, it did not decide the larger issue regarding the use of computer-generated animations as demonstrative evidence. Nor did it consider the prejudicial impact that such animation may have upon a criminal jury since the appeal in that case involved a hearing before an administrative law judge regarding DER citations. Moreover, the Klinghoffer court declined the opportunity to establish a standard for the admission of a computer-generated simulation which served as the basis for an expert’s conclusion. Thus, the usage of computer-generated animation in a criminal trial to assist an expert witness in presenting opinion testimony appears to be an issue of first impression in this Commonwealth.

(D) Demonstrative Animation vs. Substantive Simulation

The great majority of those jurisdictions which have considered the admissibility of CGE’s has recognized a salient distinction between a “simulation” and an “animation” that is produced by a computer. In a simulation, data is entered into a computer which is programmed to analyze the information and perform calculations by applying mathematical models, laws of physics and other scientific principles in order to draw conclusions and recreate an incident. See Cauley, supra at *4; State v. Farner, 2000 WL 872488, **8, 21 (Tenn. Crim. App. 2000). For instance, a computer simulation may compute the effects of acceleration, gravity, friction, atmospheric pressure or water flow in formulating a recreation of events. See Bennett et al., Seeing is Believing; Or is it? An Empirical Study of Computer Simulations as Evidence, 34 Wake Forest L. Rev. 257, 260 (Summer 1999); Borelli, The Computer as Advocate: An Approach to Computer-Generated Displays in the Courtroom, 71 Ind. L. J. 439, 450-52 (1996). More importantly, the results of the computer simulation serve as the actual basis for the opinion(s) expressed by the reconstruction expert. See Pierce, 718 So.2d at 808. See also, Galves, 13 Harv. J. L. & Tech, at 185 (to produce a simulation, “an expert enters a compilation of mathematical formulae or other scientific principles into the computer so that the computer can generate a model — based on the data and scientific assumptions — that the expert will use to form an opinion as to what must have or could have actually happened”).

In contrast, an animation does not develop any opinions or perform any scientific calculations and, to the contrary, is nothing more than a graphic depiction or illustration of the previously formed opinion of an expert. See Cauley, supra at *4. As one commentator has described:

“Animations are simply computer-generated drawings assembled frame by frame which, when viewed sequentially, produce the image of motion. The still frames are viewed in rapid succession, usually at a speed of 24 or 30 frames per second. The image is merely a graphic representation — a series of pictures ‘drawn’ by a computer operator with a computer — depicting a witness’ testimony.” Galves, supra at 180-81. Accord Joseph, A Simplified Approach to Computer-Generated Evidence and Animations, 43 N. Y. L. Sch. L. Rev. 875, 888 (2000) (“[a]t its simplest, an animation is merely a sequence of illustrations that, when filmed, videotaped or computer-generated, create the illusion that the illustrated objects are in motion”). In short, a simulation uses computer programs to formulate certain conclusions and recreate an event whereas an animation simply illustrates an opinion or reconstruction which an expert witness has already devised through the expert’s own independent computations and analyses. See e.g., Farner, supra at *21.

Although some courts have utilized the terms simulation, recreation, illustration and animation interchangeably, see e.g., State v. Clark, 101 Ohio App.3d 389, 416-17, 655 N.E.2d 795, 812-13 (1995), app. dismissed, 72 Ohio St.3d 1548, 650 N.E.2d 1367 (1995), most have recognized that the simulation-animation dichotomy should be the focal point of any evidentiary inquiry. See Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir. 1996). In aptly describing this fundamental distinction, a federal district court has noted:

“Although defendant argues that there is no practical difference between recreating an accident and recreating an expert’s theory of the accident, the difference is both real and significant; it is the difference between a jury believing that they are seeing a repeat of the actual event and a jury understanding that they are seeing an illustration of someone else’s opinion of what happened.” Datskow v. Teledyne Cont’l Motors, 826 F. Supp. 677, 686 (W.D. N.Y. 1993). (emphasis in original)

As a consequence, an animation is generally regarded as demonstrative evidence that a jury should not be entitled to review during its deliberations while a simulation is considered to be substantive evidence in the same nature as any other scientific test or experiment. See Cauley, supra; Farner, supra at **21-24; Gosser, 31 S.W.3d at 901-902.

The classification of a CGE as a simulation or an animation also determines the evidentiary foundation which governs its admissibility. See Bardelli, The Use of Computer Simulations in Criminal Prosecutions, 40 Wayne L. Rev. 1357, 1360-63 (Spring 1994). Since a simulation is dependent upon scientific principles, its admissibility is controlled by Frye/Daubert standards which regulate scientific evidence. Pierce, 718 So.2d at 808. See also, Fulcher, The Jury as Witness: Forensic Computer Animation Transports Jurors to the Scene of a Crime or Automobile Accident, 22 U. Dayton L. Rev. 55, 65-68 (Fall 1996). Thus, the party seeking to offer a simulation must introduce evidence of the validity of the computer program’s methodology and scientific principles as a condition precedent to its admission. Clark v. Cantrell, 339 S.C. 369, 382 n.2, 529 S.E.2d 528, 535 n.2 (2000). To satisfy that burden, the proponent of a computer-generated simulation must demonstrate that: “(1) the computer is functioning properly; (2) the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party, so that they may challenge them); and (3) the program is generally accepted by the appropriate community of scientists.” Commercial Union Ins. Co. v. Boston Edison Co., 412 Mass. 545, 549, 591 N.E.2d 165, 168 (1992) (simulation estimating energy usage based upon a computer program comprised of scientific formulae and algorithms concerning heat transfer, building materials, operating characteristics of heating equipment, and weather history); Kudlaceck v. Fiat S.P.E., 244 Neb. 822, 842-43, 509 N.W.2d 603, 617 (1994). Accord Clark, 101 Ohio App.3d at 416, 655 N.E.2d at 812.

However, an animation does not draw conclusions and is merely a demonstrative exhibit, and as such, it is not subject to the Frye/Daubert test. See Pierce, 718 So.2d at 808 (reasoning that an animation is a new form of expression, not a scientific or experimental test, and is not governed by Frye)] Galves, 13 Harv. J. L. & Tech, at 256-57 (observing that Daubert does not apply to animation used for demonstrative purposes to illustrate a witness’ verbal testimony since “the jurors are not being asked to accept the science used to create the CGE.”). Instead, computer animation is generally deemed admissible if it: (1) is properly authenticated under Rule 901 as a fair and accurate representation of the evidence it purports to portray; (2) is relevant under Rules 401 and 402; and (3) has a probative value that is not outweighed by the danger of unfair prejudice under Rule 403. See Harris, 13 P.3d at 495; Mintun, 966 P.2d at 959. Accord, Cleveland v. Bryant, 236 Ga. App. 459, 460, 512 S.E.2d 360, 362 (1999) (animated videotape illustrating an expert’s opinion is admissible if it is a fair and accurate representation of the expert’s opinion as to how the incident occurred). Furthermore, although the proponent of a demonstrative animation need not establish that the computer program is generally accepted in the field of computer science, compare Commercial Union Ins. Co., supra, if the animation purports to contain exact measurements or to be drawn to scale, the party seeking to utilize it must offer testimony as to how the data was obtained and inputted into the computer. Gosser, 31 S.W.3d at 903.

(E) Evidentiary Foundation Required for Computer-Generated Animation Under Pennsylvania Rules of Evidence

Since a computer-generated animation is a graphic illustration of an expert’s reconstruction rather than a simulation based upon scientific principles and computerized calculations, it is not subject to the Frye/Topa/Blum test governing the admissibility of scientific evidence in Pennsylvania. Our conclusion in this regard is consistent with the rationale of Al Hamilton Contracting which found Frye to be inapplicable to a demonstrative map containing computer-generated contour lines. Of course, the underlying expert opinion which the animation seeks to illustrate must satisfy Pa.R.E. 702 and be premised upon principles and methodology that are generally accepted in the relevant scientific community. See North American Van Lines Inc. v. Emmons, 50 S.W.3d 103, 130 (Tex. App. 2001). Moreover, in accordance with Pa.R.E. 703, the facts or data on which the expert has relied in forming the opinion which is illustrated by the computer animation must be “of a type reasonably relied upon by experts in the particular field.” See Pierce, 718 So.2d at 809.

Accordingly, a computer-generated animation is admissible under Pennsylvania law to demonstrate the opinion of an expert witness provided that it is duly authenticated “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Pa.R.E. 901(a). Such a requirement of authentication is the same foundation which applies to the admission of any pictorial representation as demonstrative evidence. See e.g., Commonwealth v. Rovinski, 704 A.2d 1068, 1074 (Pa. Super. 1997) (“[i]n order for a photograph to be admitted into evidence it must be properly authenticated by the testimony of a witness, with sufficient knowledge, that the photograph is a fair and accurate depiction of the relevant scene.”), app. denied, 555 Pa. 707, 723 A.2d 1024 (1998). In addition, the proffered animation must be relevant under the Pennsylvania Rules of Evidence as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401. Finally, the probative value of the animation must not be “outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....” Pa.R.E. 403.

The testimony and materials submitted by the parties clearly reflect that the CGE produced by 21st Century is a demonstrative animation rather than a substantive simulation. 21st Century has not composed a re-enactment which was devised independently by a computer program. On the contrary, it has created an “animated ex-Mbit” that will illustrate the opinions of the Commonwealth’s experts in ballistics, forensic pathology and crime scene reconstruction as to how the Serge shooting allegedly occurred. M that respect, 21st Century’s “visual exhibit” is tantamount to “a mechanized version of what a human animator does when he or she draws each frame of activity, based upon information supplied by experts, then fans through the frames, making the characters drawn appear to be moving.” Hood, 53 Cal. App.4th at 969, 62 Cal. Rptr.2d at 140. The following passage from one of the first reported cases discussing the use of demonstrative CGE’s best summarizes our interpretation of the Commonwealth’s proposed animation in tMs case:

“The evidence sought to be introduced here is more akin to a chart or diagram than a scientific device. Whether a diagram is hand drawn or mechamcally drawn by means of a computer is of no importance.
“While this appears to be the first time such a graphic computer presentation has been offered at a criminal trial, every new development is eligible for a first day in court.
“A computer is not a gimmick and the court should not be shy about its use, when proper. Computers are simply mechanical tools — receiving information and instructions at lightening speed. When the results are useful, they should be accepted, when confusing, they should be rejected. What is important is that the presentation be relevant to a possible defense, that it fairly and accurately reflect the oral testimony offered and that it be an aid to the jury’s understanding of the issue.” McHugh, 124 Misc.2d at 560, 476 N.Y.S.2d at 722-23.

Hence, the admissibility of 21st Century’s CGE is not controlled by the Frye/Topa/Blum standard for scientific evidence. Nevertheless, it must be still determined whether the Commonwealth’s computer animation is admissible under Pa.RE. 401, 403 and 901.

(1) Authentication Under Rule 901

To properly authenticate 21st Century’s animation as a fair and accurate depiction of the crime scene reconstruction developed by the Commonwealth’s experts, the Commonwealth must introduce evidence at the time of trial concerning the preparation of the animation and the collection of the information upon which it is predicated. See Harris, 13 P.3d at 495 (“[t]he authentication of a computer-enhanced video animation, or any other video animation for that matter, can be made by offering testimony from a witness familiar with the animation and the data on which it is based____”); Cantrell, 339 S.C. at 386, 529 S.E.2d at 537 (finding that “the animation was authenticated by the testimony of the expert who prepared the underlying data and the computer technician who used that data to create it”). In particular, the Commonwealth must offer testimony from the law enforcement personnel who examined the crime scene, retrieved physical evidence and secured measurements which were utilized by the experts in recreating the shooting. The Commonwealth’s experts in ballistics, crime scene reconstruction and forensic pathology whose opinions are illustrated by the animation must likewise testify before the CGE is displayed and their opinions must be based upon generally accepted principles. Those experts must also confirm that the animated exhibit is an accurate depiction of their opinions. See Mintun, 966 P.2d at 959; Hood, 53 Cal. App.4th at 968, 62 Cal. Rptr.2d at 139.

Furthermore, Pa.R.E. 901(b)(9) states that a “process or system” may be duly authenticated by “[ejvidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” Thus, while it is not necessary for the animator to separately satisfy the Frye/Topa/Blum test, [s]he must nevertheless explain at trial how the three dimensional drawings were produced via the AutoCAD software and thereafter transformed onto videotape to portray the illusion of motion. See Pierce, 718 So.2d at 807-808. See also, D’Angelo, 32 U. San. Fran. L. Rev. at 568.

If the Commonwealth introduces the requisite testimony from the police, experts and animator, the visual exhibit prepared by 21st Century will be properly authenticated under Pa.R.E. 901. The fact that the proffered animation may be inconsistent with the defense version of events is not grounds for its exclusion provided that it accurately portrays the Commonwealth’s account of the shooting. See Cantrell, 339 S.C. at 386, 529 S.E.2d at 537. However, if the CGE does not accurately reflect the testimony of the Commonwealth’s experts, it will be precluded from evidence as violative of Pa.R.E. 901. See Farner, supra, at *24 (concluding that the computer visualization of the accident reconstruction had not been properly authenticated since the Commonwealth’s expert “testified that he could not calculate the Camaro’s speed because it left no yaw marks or skid marks at the scene.”); Sommervold v. Grevlos, 518 N.W.2d 733, 738 (So. Dak. 1994) (animation properly excluded as an inaccurate reflection of the testimony inasmuch as it displayed the wrong location of the accident and assumed that the bicycles were traveling 25 miles per hour even though the evidence established the speed as being between 28-40 miles per hour).

(2) Rule 401: Relevance

The computer animation prepared by 21st Century will demonstrate the Commonwealth’s theory regarding the shooting and rebut the defendant’s contention that he was attacked by his wife and shot her in self-defense. Therefore, it is clearly relevant as tending to establish a material fact in the case, i.e., whether the defendant murdered his wife or acted in self-defense. See Harris, 13 P.3d at 492, ¶7 (CGE was relevant “to illustrate the state’s theory and [its expert’s] conclusion that the victim was asleep and reclining while he was shot” and “to disprove a theory that [defendant] was being attacked or that he was driving while he fired the gun.”); Harvey, 649 So.2d at 789 (animation “had strong probative value” as “providing a visual demonstration of the shooting as described by [the forensic pathologist]”). Compare Macaluso v. Pleskin, 329 N.J. Super. 346, 350-53, 747 A.2d 830, 832-35 (2000) (video animation of soft tissue injuries was testimonial in nature rather than a mere visual aid and “was not relevant to plaintiff’s precise medical condition and included speculation regarding the possible consequences of hypothetical injuries”), cert. denied, 165 N.J. 138, 754 A.2d 1214 (2000).

(3) Pa.R.E 403 Exclusion

Even though the Commonwealth’s animated exhibit may be relevant, it should nonetheless be excluded under Pa.R.E. 403 if its probative value is outweighed by the danger of unfair prejudice or juror confusion. See Fulcher, 22 U. Dayton L. Rev. at 70 (“[p]erhaps the most formidable obstacle faced by the proponent of a computer recreation is the balancing process required by Rule 403 of the ... Rules of Evidence”). Critical commentators contend that computers have achieved such an aura of infallibility that jurors will view them as the ultimate arbiter of truth and afford too much weight to CGE’s while disregarding other crucial pieces of evidence. See e.g., Kousoubris, 14 Temp. Envtl. L. & Tech. J. at 272 (computer animation “makes a stunning impression on the minds of jurors” and “if a picture can tell a thousand words, a 3-D animated presentation can tell over a million words.”); Garcia, Garbage In, Gospel Out: Crimi nal Discovery, Computer Reliability and the Constitution, 38 U.C.L.A. L. Rev. 1043, 1049 (1991). Some jurists believe that this danger “is particularly true given the popularity of real-life television shows, where jurors may have regularly seen crime scene re-enactments presented as true.” Harris, 13 P.3d at 502 (Chapel, J., dissenting). Needless to say, the prospect of unfair prejudice is of even greater concern in a criminal proceeding where an individual’s life or liberty may be at stake. See Hennes, 142 U. Pa. L. Rev. at 2180-81(“[b]efore practitioners and courts rush headlong into the twenty-first century and usher the use of advanced computer and video technology into the hallowed halls of justice, they should take a moment to step back and reflect upon the impact of this technology on the rights of the criminal defendant.”).

Recent studies have indicated that jurors do not afford undue weight to animated reconstructions. See e.g., Bennett, 34 Wake Forest L. Rev. at 285 (“the extraordinary possibilities inherent in computer animations and computer simulations raised hopes — and fears — that juries would find computer-generated displays more persuasive or convincing than other forms of evidence. These hopes and fears seem to be unwarranted, at least within the context of the empirical results of this study”). As judges and jurors become more familiar with computer technology in the digital age, it is less likely that CGE’s will cause unfair prejudice or confusion. Cantrell, 339 S.C. at 387, 529 S.E.2d at 538. An animated exhibit should not be regarded as unfairly prejudicial merely because it enables a party to demonstrate a point more effectively. We concur with the following analysis of Rule 403 in the context of CGE’s:

“Simply because an attorney or witness is articulate, smart, credible, likable, or even passionate in her courtroom presentation, her argument or testimony need not be excluded on the Rule 403 ground that the jury might be ‘overwhelmed’ by her persuasive trial presentation skills or credible testimony. We recognize that good argumentation or persuasive testimony does not constitute unfair prejudice. Accordingly, a well-prepared CGE that helps an attorney or witness communicate persuasively— like good diction, a well-timed dramatic pause, an effective appeal to an appropriate metaphor, or any other oratory skill — should not be a basis for a Rule 403 unfair prejudice exclusion. Rule 403 was never intended to exclude the likes of Clarence Darrow simply because he was effective and persuasive in the courtroom. Therefore, just because a CGE helps a jury absorb, understand, and believe attorney argument or witness testimony does not mean that Rule 403 has been violated.” Galves, 13 Harv. J. L. & Tech. at 224.

Nevertheless, the animation must not be produced or presented in a manner that will arouse the jurors’ sense of horror, appeal to their sympathies or otherwise cause them to decide the case on an improper basis. As a result, the CGE must be “clinical and emotionless,” Hood, 53 Cal. App.4th at 971-72, 62 Cal. Rptr.2d at 141, and should not display any blood or facial expressions or attempt to replicate the sound of gunshots or other noise. See e.g., Pierce, 718 So.2d at 810 (visual exhibit held not to be unfairly prejudicial since “[ajlthough evidence in this case indicated a bloody scene with screaming victims, the computer animation videotape demonstrated no blood and... the mannequins used in the computer animation videotape depicted no facial expressions”). Nor should the animation invite hearsay objections by including extra-judicial commentary such as a pre-recorded narration. See Joseph, 43 N. Y. L. Sch. L. Rev. at 890-91.

More importantly, in order to ensure that the jury does not confuse art with reality, an appropriate cautionary or limiting instructions should be provided pursuant to Pa.R.E. 105. The jury should be advised that the animation is a demonstrative exhibit, not substantive evidence, which is being offered solely as an illustration of the proponent’s version of events. Hinkle, 81 F.3d at 425; Fulcher, 22 U. Dayton L. Rev. at 75. The jury should further be admonished that it should not view the animation as an actual recreation of the incident and, like all evidence, may accept it or reject it in whole or in part. Harris, 13 P.3d at ¶13, 17; Hinkle, supra. Additionally, the jury should be reminded that “[a]n animation is only as good as the underlying testimony, physical data, and engineering assumptions that drive its images” and that “[t]he computer maxim ‘garbage in, garbage out’ applies to computer animations.” Cantrell, 339 S.C. at 383-84, 529 S.E.2d at 536. Finally, the jurors should be cautioned that while the animation may be considered for demonstrative purposes, the prosecution must still meet its burden of proving all of the elements of the offense beyond a reasonable doubt. Cauley, supra at *6. Such limiting instructions should be provided to the jury at the time of the initial presentation of the CGE and during the court’s concluding charge. Harris, supra at ¶¶13, n.7.

Based upon our in camera review of 21st Century’s animated exhibit, we do not find that its probative value is outweighed by the danger of unfair prejudice or confusion of issues. The animation does not depict any blood, facial expressions or inflammatory characteristics that could improperly influence the jury or “divert the jury’s attention away from its duty of weighing the evidence impartially.” See comment (1998) to Pa.R.E. 403. Provided that the jury is furnished with a carefully crafted cautionary instruction addressing the concerns discussed above, the Commonwealth will be entitled to present the computer-generated animation to the jury once it has been properly authenticated. See Buckwalter, A View From the Bench: Trial Techniques in the New Millenium, 19 Temp. Envtl. L. & Tech. J. 1, 9 (Fall 2000) (“[personally, I happen to think that if it is properly authenticated, an appropriate foundation is laid for its use, and some cautionary instructions are given by the court, then [computer animation] is a fantastic way to explain your theory in an interesting manner”). Of course, the court will review 21st Century’s final product prior to trial and if the videotape animation is revised to include inflammatory features subsequent to the date of this opinion, it will be excluded under Pa.R.E. 403.

(F) Conclusion

As the public becomes more computer sophisticated, courts should become less technophobic and more willing to embrace technological advances so as to better reflect changes in society. See Fulcher, 22 U. Dayton L. Rev. at 76. “Just as the telegraph gave way to the telephone, the stagecoach gave way to the automobile, and the typewriter gave way to the word processor, so too will courtroom chalkboards, easels and blow-up placard charts give way to computer-generated exhibits.” Galves, 13 Harv. J. L. & Tech, at 300. In fact, some jurisdictions have amended their rules of civil procedure to facilitate the use of CGE’s in the courtroom. See e.g., Md. Rules 2-504.3. A computer-generated animation should be treated the same as any other demonstrative exhibit or graphic representation and should be admissible if it satisfies the requirements of Pa.R.E. 401, 403 and 901. Consequently, the Commonwealth’s motion in limine will be granted subject to the conditions set forth in this opinion.

ORDER

And now, September 14, 2001, upon consideration of the Commonwealth’s “motion in limine: crime re-enactment,” the defendant’s response thereto, the testimony and exhibits submitted by the parties and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The Commonwealth’s motion in limine is granted subject to the conditions set forth in the foregoing memorandum and the requirements of Pa.R.E. 401, 403 and 901; and

(2) At least 30 days prior to the commencement of trial on November 12, 2001, the Commonwealth shall provide the defendant with a copy of the final version of the computer-generated animation produced by 21st Century Forensic Animations.

      . The firing of a bullet in the general area in which a person’s vital organs are located is sufficient to prove specific intent to kill beyond a reasonable doubt. Commonwealth v. Padgett, 465 Pa. 1, 5, 348 A.2d 87, 88 (1975); Commonwealth v. Serge, 102 Lacka. Jur. 715, 718-19 (2001).

      . Regrettably, the trial court in Scher did not address the admissibility of 21st Century’s exhibit as demonstrative evidence since it reportedly precluded the use of the videotape animation on the grounds that it was produced untimely by the Commonwealth well beyond the court-imposed deadline for the disclosure of trial exhibits. (Id. at pp. 31-32.)

      . Visualizations and recreations which are produced by a computer have been identified as “computer-generated visual evidence,” Gosser v. Commonwealth, 31 S.W.3d 897, 901 (Ken. 2000), computer-generated evidence, see Cerniglia, Computer-Generated Evidence—Demonstrative, Substantive or Pedagogical, 18 Am. I. Trial Advoc. 1, 4-5 (Summer 1994), and computer-generated exhibits. See Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J.L. & Tech. 161,165 n.2 (Winter 2000). Inasmuch as 21st Century denotes its graphical presentation in this case as an “animated exhibit” and “visual exhibit,” we will refer to the technology at issue as computer-generated exhibits.

      . Some courts have characterized this evidentiary standard as a four-part test which requires the animation to (1) be authentic under Rule 901, (2) be relevant under Rules 401 and 402, (3) be a fair and accurate representation of the evidence to which it relates, and (4) have a probative value that outweighs the danger of unfair prejudice under Rule 403. See e.g., Cauley, supra at **5-6; Cantrell, 339 S.C. at 384, 529 S.E.3d at 536. Since the requirement that the evidence be a fair and accurate portrayal is actually a means by which an exhibit may be properly authenticated under Rule 901, see Galves, 13 Harv. J. L. & Tech, at 227-28 (if a CGE depicts its subject matter fairly and accurately, then it is properly authenticated under the “fair and accurate portrayal” test), we agree with those jurisdictions which have condensed the criteria, for admission into a tripartite test.

      . Even assuming arguendo that 21st Century’s animation was governed by the “scientific evidence” rule, it is uncontroverted that the IBM hardware and Autodesk’s AutoCAD software used to prepare the CGE in question are generally accepted in the field of computer science. (See T.P. 7/30/01, pp. 27-29.) Accord People v. Rivera, 182 Ill. App.3d 33, 42, 537 N.E.2d 924, 931, 130 Ill. Dec. 595, 602 (1989) (concluding that the trial “judge correctly held that he could take judicial notice that IBM is a ‘standard, reliable computer’ ”); Pierce, 718 So.2d at 807 (noting that the AutoCAD computer program is “established as accepted in the engineering field as one of the leading CAD (computer-aided design) programs in the world”); Clark, 101 Ohio App.3d at 417, 655 N.E.2d at 813 (holding that the field of crime scene reconstruction through the use of computer-assisted drafting such as AutoCAD software “has gained general acceptance, as evidenced by the numerous courts which have admitted computer simulations or reconstructions as evidence.”). It should also be noted that “Autodesk is the largest provider of CAD software in the world” and that “[i]ts premier product, AutoCAD, has literally 80 percent of the CAD market.” Vermont Microsystems Inc. v. Autodesk Inc., 88 F.3d 142, 144 (2nd Cir. 1996).

      . It is difficult to conceive how a properly authenticated computer animation could be excluded based upon a “confusion of the issues” objection since such a demonstrative exhibit is designed to clarify— not compound — any potential confusion in an expert’s opinion. See Harris, 13 P.3d at 496, ¶26 (finding that the probative value of a CGE was not outweighed by any Rule 403 dangers since “[t]hese [computer-generated] tapes cleared up the confusion and made the expert’s testimony easier to understand”). Accord Galves, 13 Harv. J. L. & Tech. at 225 (describing a Rule 403 argument as “a curious objection because an animation is made precisely because the proponent is trying to clarify complicated facts, not obscure them”).

      . The court should further mitigate any potential prejudice by requiring the proponent of the CGE to provide the animated exhibit to the opposing party at the earliest practicable date so that the other party will be able to adequately investigate the manner in which the animation was prepared in the event it is necessary to challenge its admissibility. See Joseph, 43 N. Y. L. Sch. L. Rev. at 892 (“[t]o avoid unfair prejudice, pretrial discovery of computerized evidence, including the underlying computer program, is essential”); Kousoubris, 14 Temp. Envtl. L. & Tech. J. at 274 (advocating early pretrial disclosure so that “the opponent to the animation has adequate information to effectively cross-examine”). In a criminal proceeding, it is incumbent upon the court to improvise pretrial discovery of CGE’s to safeguard the constitutional rights of defendants. Bardelli, 40 Wayne L. Rev. at 1375. Instantly, defense counsel has already been afforded the opportunity to cross-examine the animator during the evidentiary hearing regarding the means by which the animated exhibit has been prepared and produced. To ameliorate prospective prejudice, the Commonwealth will also be required to provide defense counsel with a copy of the final version of the videotaped animation at least 30 days prior to the start of this trial on November 12, 2001.


source: Caselaw Access Project

author: FRIEDMAN, J.,

license: Public Domain

text:
    Commonwealth v. Reefer

      C.P. of Allegheny County,
    no. 8709591.

      Rebecca D. Spangler, for Commonwealth.

      Kurt A. Grubschmidt, for defendant.
    May 1, 2001
   FRIEDMAN, J.,

— Quite some time ago, defendant filed a pro se petition for modification of sentence due to illness, alleging that the state correctional system cannot provide him the medical care he needs to preserve his life and asking the court to modify his sentence to permit him to be placed in an appropriate medical facility. The applicable statute is found at 61 P.S. §81. In order to assist the court in conducting an orderly hearing, counsel was appointed for defendant, and a hearing was held.

The medical evidence makes it clear that defendant’s health is indeed precarious, at best, and the Commonwealth concedes this is so. The issue is whether the delicate balancing of defendant’s medications can be maintained in the prison environment or whether he is now in so precarious a state that skilled nursing is the only way he can be adequately monitored and his medications promptly re-evaluated and adjusted.

Part of the difficulty with balancing and adjusting defendant’s medications is that they are affected by stress. In defendant’s case, as for virtually every prisoner, the stress of daily life is constantly high and beyond defendant’s control. In addition, there is no doubt that defendant’s prison experience has been more stressful than most. He was sentenced on June 21,1989, in accordance with the guidelines, to 5-20 years in prison after conviction in a non-jury trial of the crimes of rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, and corruption of minors. (He received credit for time served from March 10,1989, when his bail was revoked, to the date of sentencing.) It was anticipated at the time of sentencing that he would be eligible for parole after five years so long as he behaved himself while incarcerated. Instead, the prison officials refused to recommended him for parole at his minimum because of his alleged refusal to complete certain counseling programs. An informal inquiry by the court after receiving a complaint from the defendant indicated that the defendant was not permitted to continue in the programs because he would not acknowledge his guilt. Eventually, this policy changed and defendant was allowed to participate without admitting guilt. However, the parole board continued to reject his applications for parole.

Thus, from defendant’s point of view, he has been doing all that the correctional system has demanded of him, behavior that in the ordinary course should have resulted in his release in 1994. Instead, again from his point of view, he has been kept imprisoned for seven years more than contemplated by anyone (the court, the Commonwealth, the defendant) at the time of sentencing. While he would not use this adjective, his experience has been somewhat Kafkaesque. (It should be noted that the court assumes the finding of guilt was correct and so does not factor in the stress attributable to defendant’s having been found guilty of particularly disgusting and heinous crimes. That is stress which society and the law require him to suffer.)

Another contributor to defendant’s stress is his own personality — he lacks the ability to moderate his demeanor when interacting with others. If he feels badly treated, he does not suffer in silence — he demands proper treatment in no uncertain terms. To put it mildly, he lacks charm. He tends to grate on others even though he is not particularly aggressive. This is doubtless the source of many of the unfavorable perceptions others have had of him.

On top of the type of stress specific to defendant as well as the stress anyone would feel in a prison environment, defendant has a serious heart condition that cannot be corrected by surgery. He is kept alive only by carefully regulated medication and has the stress of knowing that fact. The prison system, according to the evidence, is using older medications that obviously have worked so far to keep defendant alive, but that are less reliable and harder to regulate than the latest medications otherwise available outside the prison setting.

Defendant’s counsel has proved that defendant’s precarious condition would get the required attention and monitoring only outside the prison setting, in a skilled nursing facility. He has proved that such a facility is available to elderly and ill criminals such as defendant. He has also proved that defendant himself, if released, would receive assistance in applying for a place in such a facility as well as in applying for the medical payment programs which would pay for his skilled nursing care.

The sole question for decision is whether 61 P.S. §81 (the statute) requires a prisoner’s release where minimal care is being provided within the prison, but sufficient care, with much less risk of defendant’s suddenly dying, can only be provided in a skilled nursing facility. (There is no contention that any prison in Pennsylvania contains skilled nursing facilities.)

The statute is fully quoted below:

“Whenever any convict or person is confined in any jail, workhouse, reformatory, or reform or industrial school, penitentiary, prison, house of correction of any other reason or purpose and it is shown to a court of record by due proof that such convict or person is seriously ill, and that it is necessary that he or she be removed from such penal institution, the court shall have power to modify its sentence, impose a suitable sentence, or modify the order of confinement for trial, as the case may be, and provide for the confinement or care of such convict or person in some other suitable institution where proper treatment may be administered. Upon the recovery of such person, the court shall recommit him or her to the institution from which he or she was removed.”

The italicized language clearly gives this court the power to grant defendant’s motion either by modifying the original sentence or by modifying the order of confinement.

The statute was passed in 1919 and most of the published cases under it do not involve facts similar to the instant case. The first published case under the statute seems to be Commonwealth v. Frasco, 20 Sch. 363 (1924). In Frasco, the affidavit of the prison physician stated only that because the defendant was “an old man 80 years old, I consider [him] a case that should not be confined in prison, as on account of his age, physical condition, and matters of a chronic nature, the jail [is] no place where proper attention can be given, and therefore would recommend him to the Schuylkill County Almshouse, Schuylkill Haven, Pa. where they can give him the proper attention and nursing required for a person in advanced years.” The trial court denied the petition because it found that the doctor’s affidavit did not “constitute due proof that [defendant] is so seriously ill that his removal to another institution for proper treatment is necessary.” 20 Sch. at 364. The court also noted that another statute then in effect, the Act of May 10, 1921, P.L. 433, §2, provided that prisoners whose physical conditions were not good were to be segregated in the prison from those in good health. In the instant case, the seriousness of defendant’s condition is undisputed. Frasco is therefore inapposite.

The next case is Commonwealth v. Morse, 27 Lacka. Jur. 201 (1926). In Morse, the defendant, while under a sentence of six months’ imprisonment and a $600 fine, was taken to the hospital for treatment of appendicitis. His jail term expired while he was still in the hospital. The defendant voluntarily paid for his medical expenses, which amounted to $238.90, and sought to have that amount offset against his $600 fine, based upon the provisions of 61 P.S. §81. The trial court refused this request because the defendant had voluntarily taken it upon himself to pay for his medical expenses. There is nothing similar to the instant case in Morse. It is clearly inapposite.

There were then no published cases until 1980, when the first appellate decision was published, Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980). The defendant in Landi argued, inter alia, that, based on 61 P.S. §81, it was cruel and unusual to sentence him to a term in prison because he was a paraplegic. The trial court disagreed because defendant, “although obviously disabled,... is not seriously ill and incarceration poses no threat to his physical welfare.” 280 Pa. Super, at 139, 421 A.2d at 444. Again, in the instant case, unlike Landi, the seriousness of the illness is undisputed. The issue in the instant case is how great “the threat to [Mr. Reefer’s] physical welfare” is. The holding in Landi is therefore inapplicable here.

Other appellate cases are Commonwealth v. Lyles, 77 Pa. Commw. 15, 464 A.2d 712 (1983); Commonwealth v. O’Neil, 393 Pa. Super. 111, 573 A.2d 1112 (1990); and Warren v. Pennsylvania Department of Corrections, 151 Pa. Commw. 46, 616 A.2d 140 (1992). The Commonwealth also asked this court to consider the unpublished decision in Commonwealth v. Grosso, Superior Court no. 451 Pittsburgh 1994, a suggestion that had to be declined.

In Lyles, the defendant had escaped from prison and suffered multiple gunshot wounds while being recaptured, as a result of which he became a paraplegic. It was ordered that the defendant serve his sentence at a United States Government hospital until he had sufficiently recovered to be placed in a state correctional institution. Attempts to place him at a United States Government hospital failed, during which time the defendant remained at a state correctional institution. The defendant then filed a petition for modification of sentence under 61 P. S. § 81. The trial court granted the petition, modifying defendant’s sentence to “30 years probation, releasing [defendant] into the custody of his parents pending admission to an appropriate rehabilitative institution at the cost of the Commonwealth.” 77 Pa. Commw. at 17, 464 A.2d at 713. (emphasis added) On appeal, the Commonwealth did not dispute the trial court’s determination that defendant was not receiving proper treatment at the state correctional institution, nor did it dispute that the court had the authority to modify defendant’s sentence to probation. The Commonwealth only disputed that it had to pay for defendant’s treatment while he was on probation. The appellate court reversed the trial court on this one point only, observing that “[w]hile the correctional system is duty bound to arrange for all the necessary medical care of persons within its control, the correctional system is not a medical provider and should not be considered solely liable for the expense of treatment of every person who at some point is placed in the system.” 77 Pa. Commw. at 18-19, 464 A.2d at 714. (citations omitted) In the instant case, no one has demanded that the Department of Corrections pay for defendant’s medical care outside the prison. However, the other facts related to the seriousness of the inmate’s condition and to the portion of the trial court’s opinion that was not reversed are very similar to the facts of the instant case.

In Commonwealth v. O’Neil, 393 Pa. Super. 111, 573 A.2d 1112 (1990), the defendant’s arguments were not made based on 61 P.S. §81. Rather, he had argued that because he had tested positive for HIV, it was per se cruel and unusual punishment to sentence him to incarceration. The Superior Court disagreed, observing that defendant’s sentence could be modified under 61 P.S. §81 if he should show symptoms of AIDS. O’Neil supports the conclusion reached by the undersigned that the statute gives the court the power to modify the sentence itself.

In Warren v. Pennsylvania Department of Corrections, 151 Pa. Commw. 46, 616 A.2d 140 (1992), the defendant filed a petition for review with the Commonwealth Court, seeking, inter alia, transfer to an institution which could care for the symptoms of his hemophilia, based on 61 P.S. §81. The Commonwealth Court concluded it did not have jurisdiction to consider the portion of the petition based on 61 P.S. §81, since that statute clearly provided that such applications had to be made to the trial court. Warren therefore is only apposite to the issue of jurisdiction, which is not in dispute in the instant case.

The most recent published cases from the courts of common pleas are Commonwealth v. Zeppadoro, 109 Montg. Cty. L.R. 42 (1981); Commonwealth v. Lanehart, 15 D.&C.4th599 (Fulton Cty. 1992); and Commonwealth v. Mausteller, 26 D.&C.4th (Monroe Cty. 1994). In Zeppadoro, the defendant’s petition for modification of sentence was granted and his sentence of incarceration was changed to probation. This was based on testimony that defendant was “an obese, 34-year-old man suffering from long-standing heart disease, arteriosclerosis, hypertension and diabetes.... Defendant testified that his symptomology (angina, shortness of breath) increased markedly at Graterford, where he was housed in a hospital unit. In addition, he developed new symptoms — ‘cold sweats,’ numbness of extremities, dizziness and blurred vision in the left eye. Although he should be on a low-fat, low-sugar and salt diet, he in fact receives standard prison fare. He has not regularly received insulin.” Defendant’s physician testified that in his opinion, incarceration would likely lead to defendant’s death. The trial court granted the petition because it concluded that there was no other institution which was appropriate for defendant and that it was incarceration itself which was causing defendant’s condition to worsen. Zeppadoro is quite similar to the instant case, where incarceration causes Mr. Reefer’s medications to need more careful monitoring than a less stressful environment might entail.

Lanehart involved a defendant who was a paraplegic and who did not claim that the state correctional institution could not provide necessary care, but rather claimed that “his medical care has been neglected, i.e., that bandages have not been changed frequently enough, he has not been administered proper antibiotics, and that the physicians who treat him are incompetent.” 15 D.&C.4th at 602-603. (emphasis added) The trial court denied his petition for release from custody under 61 RS. §81 saying that defendant’s complaints were about the quality of his medical care, which was not grounds for relief under the statute. The Lanehart trial court pointed out that Landi says the statute applies “only to those prisoners who become seriously ill while in prison” (emphasis added) and that defendant Lanehart “was ‘ill’ prior to going to prison.” Id. at 602. (emphasis in original) This was the basis for the Lanehart trial court ruling as a matter of law that it was not necessary to remove the defendant for treatment: He was sent to prison with the serious condition. Another way of looking at the issue in Lanehart is in terms of res judicata. At the time of incarceration, the seriousness of his medical condition was known and considered and was found not to be a reason not to incarcerate him. Lanehart is inapposite to the instant case.

In Mausteller, the defendant suffered a fall subsequent to his conviction but while he was free, pending appeal. He petitioned the court to further delay his incarceration or restructure his sentence to house arrest. The physician who performed an independent medical exam reported that defendant had suffered “numerous orthopedic fractures and injuries .... He continues with outpatient therapy three times a week.... I believe [defendant] is in need of continued physical therapy and rehabilitation sessions to reach his maximum level of recovery .... Proper classification and early placement to a state facility that can accommodate this gentleman would be most beneficial.” 26 D.&C.4th at 262-63. Without further discussion, the trial court denied defendant’s petition. It seems clear that the medical issues in Mausteller were not of the life-threatening nature presented by the instant one.

The facts of Lyles and Zeppadoro are the closest to the instant case. Both the Commonwealth Court (in Lyles) and the Superior Court (in O’Neil), albeit in dicta, have confirmed that if “all the necessary medical care” cannot be provided in prison, the sentencing court has the power under the statute to modify the sentence originally imposed. For the instant defendant, the “necessary medical care” includes either more frequent monitoring of defendant’s medication or substantially less stress in his daily environment. The Department of Corrections cannot provide either. The petition must be granted. See order filed herewith.

ORDER

And now, to-wit, May 1, 2001, after a hearing the defendant’s petition for modification of sentence due to illness is hereby granted pursuant to 61 P.S. §81, and the sentence previously imposed at CC no. 8709591, is hereby modified as follows:

• At Count 1, rape (section 3121(1)), five years to 12 years and three months, followed by a period of seven years and nine months probation.

• At Count 3, involuntary deviate sexual intercourse (section 3123(1) and (2), five years to 12 years and three months, followed by a period of seven years and nine months probation, to be served concurrently with the sentence at Count 1.

• At Count 5, corruption of minors (section 6302), two and one-half to 5 years, to be served concurrently with the sentences at Counts 1 and 3.

• At Counts 2, statutory rape (section 3122) and 4, indecent assault (section 3126(1)), no further penalty by reason of merger with first count.

It is further ordered that defendant shall receive credit for time served from March 10,1989 through the date of this order.

It is further ordered that defendant shall be furloughed, to the custody of his sister, for a period of four weekdays, at a time convenient to counsel for defendant and arranged by the State Correctional Institution in consultation with said counsel, so that defendant may make the necessary applications for medical assistance and the skilled nursing facility.

It is further ordered that, upon the expiration of his modified sentence, and as a condition of probation, defendant shall reside in the skilled nursing facility described during the hearing hereon, shall comply with all the rules and regulations of said facility in addition to all rules and regulations of the probation office, and shall avoid all contact, whether by phone, mail or in person, with the victim and the co-defendant in this case.

      . Unpublished decisions may not be relied upon or cited for precedential value. Commonwealth v. Phinn, 761 A.2d 176 (Pa. Super. 2000).

      . The appeal of Lyles was transferred to the Commonwealth Court by the Superior Court because it involved the potential payment of defendant’s medical bills by the state Department of Public Welfare.


author: ROSSANESE, J.,

text:
    Judge Technical Services v. Clancy

      C.P. of Montgomery County,
    no. 97-22364.

      Michael Kristofco, for plaintiff.

      Frederick McBrien III, Bradley T. Beckman and Daniel Bernheim, for defendant.
    June 27, 2000
   ROSSANESE, J.,

FINDINGS OF FACT

(1) Plaintiff, Judge Technical Services Inc., is a Pennsylvania corporation with its principal place of business at Two Bala Cynwyd, Pennsylvania. JTS is in .the business of placing information technology consultants with specialized computer skills on a temporary basis’in the Philadelphia area. Throughout the litigation, JTS has opened and closed an office in New York, and maintains a place of business in Foxboro, Massachusetts. JTS is a wholly owned subsidiary of Judge Group Inc., a Pennsylvania corporation at the same location.

(2) Plaintiff, Judge Inc., is a Pennsylvania corporation with its principal place of business at Two Bala Cynwyd, Pennsylvania. Judge is in the business of placing information technology consultants with specialized computer skills on a permanent basis in the Philadelphia area. Judge is a wholly owned subsidiary of Judge Group Inc., a Pennsylvania corporation at the same location.

(3) Defendant, Alliance Consulting Group Inc., is a New York corporation with a principal place of business at Two World Trade Center Tower, Suite 1826, New York, NY. Alliance, formerly known as TechStaff Inc. also maintains offices at One Commerce Square, Suite 3250, Philadelphia, Pennsylvania, and in Boston, Chicago, Phoenix, Dallas, Washington, Atlanta and Wilmington. Alliance is in the business of placing information technology consultants with specialized computer skills on a temporary basis in each of the markets surrounding their offices.

(4) Defendant, Thomas Clancy, is an adult individual residing at 1904 Coles Blvd., East Norriton, Pennsylvania. He was previously employed by JTS.

(5) Defendant, Lawrence J. Senko, is an adult individual residing at 32 Conshohocken State Road, Pennsylvania. He was previously employed by JTS.

(6) Defendant, Brett Pinto, is an adult individual residing at 1825 North 29th Street, Apartment 1-B, Philadelphia, Pennsylvania. He was previously employed by Judge.

(7) On November 25,1997, plaintiffs, JTS and Judge, filed a complaint and motion for preliminary injunction against Alliance, Clancy, Senko and Pinto. The complaint alleged breach of employment contract by Clancy, Senko and Pinto; tortious interference with contractual relations by Alliance; and theft of trade secrets by Senko. The motion for preliminary injunction sought injunctive relief for Clancy, Senko and Pinto’s breach of restrictive covenants in their respective employment contracts.

(8) In January of 1998, plaintiffs served interrogatories and request for production of documents on the defendants seeking information identifying all of Alliance’s technical engineers and consultants.

(9) Defendants objected to the January 1998 discovery requests claiming that the same were too broad, and then served plaintiffs with interrogatories and requests for production of documents seeking the identification of any specific consultants, clients or information that plaintiffs deemed protected under the restrictive covenants of Clancy, Senko and Pinto.

(10) Both parties filed motions to compel responses to their respective discovery requests, and on February 6, 1998, we issued an order directing the parties to respond to the specific interrogatories and document requests.

(11) Defendant Alliance filed a motion for reconsideration of our February 6, 1998 order, which was later denied.

(12) On March 30, 1998, we issued an order of contempt against the defendants for failure to comply with our February 6, 1998 order.

(13) On May 28, 1998, we granted plaintiffs’ second petition for contempt against defendant for failure to comply with our February 6, 1998 order. Our order directed that defendants deliver the requested discovery and imposed sanctions in the amount of $750. Our May 28, 1998 order also appointed a discovery master to review in camera the requested discovery in response to defendants’ confidentiality concerns.

(14) On June 8,1998, defendants appealed our February 6 and March 30, 1998 orders.

(15) On July 17, 1998, the Superior Court quashed defendants June 8, 1998 appeal as interlocutory.

(16) On August 11,1998, we issued an order entering default judgment against the defendants as sanction for refusing to comply with our previous discovery orders.

(17) On September 11,1998, defendants appealed our August 11, 1998 order.

(18) On November 13, 1998, the Superior Court quashed the defendants’ September 11, 1998 appeal.

(19) On March 26 and 31 and August 2 and 3, 1999, we held hearings on the matter to determine damages.

CONCLUSIONS OF LAW

(1) On August 11, 1998, we entered a default judgment against the defendants on the issue of liability.

(2) The plaintiff bears the burden of proving damages by a fair preponderance of the evidence. Delahanty v. First Pennsylvania Bank N.A., 318 Pa. Super. 90, 119, 464 A.2d 1243, 1257 (1983).

(3) Plaintiffs, JTS and Judge, seek damages in the form of lost profits for the breach of defendants’ restrictive covenants and Alliance’s interference with contractual relations. Under Pennsylvania law, lost profits are the difference between what the plaintiff actually earned and what they would have earned had the defendant not committed the breach. AM/PM Franchise v. Atlantic Richfield, 526 Pa. 110, 119, 584 A.2d 915, 922 (1990).

(4) While lost profits as a form of damages need not be proved with mathematical certainty, sufficient evidence must be produced so that a court can arrive at an intelligent estimate of the lost profits without conjecture. SHV Coal Inc. v. Continental Grain Company, 376 Pa. Super. 241, 252, 545 A.2d 917, 922 (1988), reversed on other grounds, 526 Pa. 489, 587 A.2d 702 (1991)

(5) “A defendant whose wrongful conduct has rendered difficult the ascertainment of the precise damages suffered by the plaintiff, is not entitled to complain that they cannot be measured with the same exactness and precision as would otherwise be possible . . . [I]t would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amends for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise ... the risk of uncertainty should be thrown upon the wrongdoer instead of the injured party... the precise amount cannot be ascertained by a fixed rule, but must be matter of opinion and probable estimate. And the adoption of any arbitrary rule in such a case which will relieve the wrongdoer from any part of the damages, and throw the loss upon the injured party, would be little less than legalized robbery.” Commonwealth Trust Co. of Pittsburgh v. Hachmeister Lind Co., 320 Pa. 233, 239-40, 181 A. 787, 790 (1935). In the case sub judice, default judgment was entered against the defendants for failure to produce documentation (i.e., job candidates and clients that the individual defendants secured for Alliance) that would make assessment of damages possible. Defendants cannot withhold discovery and then complain that the plaintiffs’ evidence is insufficient to prove damages. Therefore, pursuant to Commonwealth Trust of Pittsburgh, supra, we must estimate/approximate damages in the present case.

(6) In our case, all of the individual defendants’ employment agreements with plaintiffs contained liquidated damage clauses.

(7) The liquidated damage clause in Pinto’s employment agreement with plaintiff Judge, entitles plaintiff to all monies received by Pinto as a result of his breach and all costs and attorney’s fees incurred by plaintiff in enforcing Pinto’s agreement. Since the default judgment established that defendant Pinto breached his employment contract with the plaintiff, and since defendant Pinto refused to produce the discovery needed to determine the amount of monies received by Pinto as a result of that breach, we conclude that plaintiff is entitled to receive the amount of Pinto’s salary, namely, $148,974.29, and attorney’s fees incurred in enforcing the agreement, namely, $49,427.39 (total attorneys’ fees for all three individual defendants $148,282.17 divided by 3) for a total of $198,401.68.

(8) The liquidated damages clauses in Senko and Clancy’s employment agreements with plaintiff JTS, entitle plaintiff to 25 percent of the revenue or the profit earned by Senko and Clancy through soliciting or otherwise competing for accounts or personnel which became known to them through their employment with plaintiff. Plaintiff is also entitled to the legal fees incurred enforcing the agreements with Senko and Clancy. Because, Senko, Clancy and Alliance have refused to produce the records necessary for plaintiff to determine this number with precision, plaintiff is only required to prove this amount by just and reasonable inference as held in Commonwealth Trust Co. of Pittsburgh, supra. Further, because plaintiff has limited information at its disposal to establish the liquidated damages under Senko and Clancy’s agreements, it is reasonable to infer that Clancy and Senko generated gross profits for defendant Alliance at least equal to their salaries, and that plaintiff would be entitled to 18 months worth of that amount, namely, $375,000 for Clancy and $160,500 for Senko. Moreover, under the agreement, plaintiff is entitled to recover reasonable attorney fees in enforcing the agreement, namely $49,427.39 for Clancy and $49,427.39 for Senko (total attorneys’ fees for all three individual defendants $148,282.17 divided by 3). Accordingly, plaintiff is entitled to a total of $209,927.39 from defendant Senko and $424,427.39 from defendant Clancy.

(9) Where there is a finding of tortious interference with contractual relations, compensatory damages must be awarded, and punitive damages may be awarded if appropriate. Joseph D. Shein P.C. v. Myers, 394 Pa. Super. 549, 551, 576 A.2d 985, 986 (1990). Where, as here, the parties to a restrictive covenant do not assign a specific value for the covenant in the contract, the proper measure of damages is to ascertain what business the defendant company obtained as a direct result of the breach of those covenants. Scobell Inc. v. Schade, 455 Pa. Super. 414, 422, 688 A.2d 715, 719 (1997). Because we entered a default judgment against defendant Alliance for tortious interference with Pinto, Senko and Clancy contracts, we must award damages for the same. And, as defendant Alliance has refused to produce any discovery which would aid us in determining this damage amount, we conclude that it is reasonable to award compensatory damages equal to 18 months worth of Pinto, Senko and Clancy’s salaries, namely, $148,974.29 for Pinto; $375,000 for Clancy; and $160,500 for Senko. We decline to award attorney’s fees as Alliance was not a party under the employment agreements imposing same. However, we do award punitive damages in the amount of $700,000 since we conclude that defendant, Alliance, was indeed the driving force behind all defendants’ refusal to abide by our discovery orders.

(10) The measure of damages for misappropriation of trade secrets is not what the plaintiff lost, but rather the benefits, profits or advantage gained by the defendant in the use of the trade secret. International Industries Inc. v. Warren Petroleum Corp., 248 F.2d 696, 699 (3d Cir. 1957). As a result of the default judgment, defendant Senko is liable for damages caused by his misappropriation of plaintiff’s secrets. Because, defendant Senko refused to produce any discovery (ie., Senko’s bank statements, cancelled checks, tax returns, credit card bills, etc. from January 1996) relative to the misappropriation of trade secrets, and because the only unrebutted testimony of record is that Senko bragged that he gleaned $60,000-$70,000 misappropriating trade secrets, we reasonably apply this number and conclude that plaintiff, JTS, is entitled to recover $60,000 in damages from defendant Senko for misappropriation of trade secrets. (Notes of Testimony 3/26/99, pp. 37-38.)

ORDER

And now, June 27,2000, after a default judgment having been entered against the defendants, and after a four day damages hearing thereafter, we hereby order and decree as follows:

(1) Plaintiff Judge Inc. is awarded $198,401.68 from defendant Pinto ($148,974.29 in salary plus $49,427.39 in attorney’s fees) for breach of his employment agreement with Judge Inc;

(2) Plaintiff JTS is awarded $209,927.39 from defendant Senko ($160,500 in salary plus $49,427.39 in attorney’s fees) for breach of his employment agreement with JTS;

(3) Plaintiff JTS is awarded $424,427.39 from defendant Clancy ($375,000 in salary plus $49,427.39 in attorney’s fees) for breach of his employment agreement with JTS;

(4) Plaintiff Judge Inc. is awarded $148,974.29 from defendant Alliance for tortious interference with Pinto’s employment contract;

(5) Plaintiff JTS is awarded $160,500 from defendant Alliance for tortious interference with Senko’s employment contract;

(6) Plaintiff JTS is awarded $375,000 from defendant Alliance for tortious interference with Clancy’s employment contract;

(7) Plaintiff Judge is awarded $233,333 (1/3 of $700,000 — see conclusion of law no. 9) from defendant Alliance in punitive damages;

(8) Plaintiff JTS is awarded $466,667 (2/3 of $700,000 — see conclusion of law no. 9) from defendant Alliance in punitive damages; and,

(9) Plaintiff JTS is awarded $60,000 from defendant Senko for theft of JTS trade secrets.

PERMANENT INJUNCTION

And now, June 27, 2000, it is hereby ordered and decreed that defendants, Alliance Consulting Group Inc., Thomas Clancy, Lawrence J. Senko and Brett Pinto are hereby enjoined as set forth below:

(1) For a period of 18 months beginning from the entry of this order, neither Clancy nor Senko shall:

(a) directly or indirectly, engage in competition in a business similar to that of plaintiff, Judge Technical Services Inc. or be employed by a business in competition with JTS located within a radius of 50 miles of the office to which they were assigned during their last year of employment with JTS. Nor will Clancy or Senko solicit any accounts or personnel or engage in any other competitive activities within the above-mentioned area;

(b) service any customers with whom JTS has done any business during the year immediately preceding each of their respective resignations from JTS;

(c) solicit, divert, take away or attempt to solicit, divert or take away any staff, temporary personnel, trade, business or good will from JTS or otherwise compete for clients or contract personnel which became known to them through their employment with JTS;

(d) influence or attempt to influence any of JTS’s customers or technical personnel from doing business with JTS; or

(e) on behalf of themselves or any other company, divulge the name or address or any information concerning any JTS accounts, customers and business patrons or technical personnel as well as JTS’s business methods, techniques, management and financial expertise and any of its plans with respect to acquisitions and future services to be rendered by JTS.

(2) Pinto shall not, for a period of one year after the entry of this order:

(a) conduct any business with any clients or customers with whom plaintiff Judge Inc. has done any business within the year immediately preceding his resignation;

(b) directly or indirectly divulge or disclose any information with regard to Judge’s employer and applicant list, forms of agreements and contracts used in Judge’s business operations, advertising, marketing methods as well as scheduling, training and customer relations;

(c) directly or indirectly, own, manage, operate, control, be employed by, consult with, participate in or be connected in any manner with the ownership, management, operation, or control of any business enterprise which engages in the business of placing personnel or any business which competes with Judge or its affiliates, including JTS, in any manner within a radius of 100 miles from Judge’s Bala Cynwyd office; or

(d) contact, solicit or attempt to contact or solicit any person who is employed by Judge at the time Pinto left Judge’s employment for the purpose of inducing that person to terminate their employment with Judge.

(3) Alliance is hereby enjoined and restrained from:

(a) interfering with any employment agreements between plaintiffs and their employees;

(b) initiating any contact with any employees of Judge or JTS during business hours when such employees are at work;

(c) directly or indirectly soliciting or attempting to solicit any of plaintiffs’ employees to cease employment with plaintiffs and commence employment with Alliance; and

(d) soliciting, servicing or continuing to service any clients or job candidate that became known to Alliance through any actions of Clancy, Senko or Pinto which amounted to a breach of their respective employment agreements with JTS and/or Judge.

      . The docket reflects that on December 16, 1997, the parties entered into a stipulation regarding the issuance of the preliminary injunction before the Honorable William J. Furber Jr.

      . See Miller Oral Surgery Inc. v. Dinello, 342 Pa. Super. 577, 493 A.2d 741 (1985), holding that a sanction order entering judgment pursuant to Rule 4019(c)(3) authorizing default judgment against a party who' does not comply with discovery orders is not subject to a petition to open; the party may request court to reconsider sanction order entering judgment, but neither reconsideration nor refusal to reconsider will transform an interlocutory order into one that is final and appeal-able.