author: HOFFMAN, Judge: CAVANAUGH, Judge,

text:
    602 A.2d 1323
    COMMONWEALTH of Pennsylvania, Appellant, v. George Howard CLARK.
    Superior Court of Pennsylvania.
    Submitted November 21, 1991.
    Filed Jan. 6, 1992.
    Reargument Denied March 12, 1992.

      Ann A. Osborne, Asst. Dist. Atty., Media, for Com., appellant.
    Douglas L. Smith, Media, for appellee.
    Before CAVANAUGH, POPOVICH, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal by the Commonwealth from an order dated April 10, 1991 granting appellee’s omnibus pretrial motion. On appeal, the Commonwealth contends that the suppression court erred by suppressing the evidence seized pursuant to a search warrant. For the following reasons, we affirm the suppression order.

On June 15, 1990, two Chester Police officers from the narcotics and vice division appeared before a District Justice. They presented an affidavit which recited, inter alia, that a confidential informant (Cl) had witnessed appellee within the previous forty-eight hours take orders for cocaine at a housing project where appellee was allegedly selling drugs. The Cl observed appellee drive to his residence in a 1970’s Pontiac Ventura, get out, enter his house, and return to his vehicle within a couple of minutes with a controlled substance. The search warrant revealed that this Cl was reliable in that the Cl had provided information about other individuals in the past, which resulted in arrests. A search warrant was issued and executed the same day. A search of appellee’s bedroom yielded a white powdery substance, numerous small plastic bags, and a thirty-eight caliber handgun. Appellee was subsequently charged with possession of a controlled substance, possession of a controlled substance with intent to deliver and possession of drug paraphernalia.

Appellee filed an omnibus pretrial motion seeking, inter alia, to suppress the evidence seized pursuant to the search warrant. A hearing was held on this motion on November 16, 1990. At the hearing, appellee produced a receipt from an auto service station for work done for George Clark, appellee herein, on a 1977 Pontiac on June 12, 1990. The receipt indicated that the car was to be picked up on June 16 and that, in fact, payment in full was made on June 16 when the car was picked up by appellee’s father. This evidence contradicts the statement in the affidavit supporting the search warrant that the Cl observed appellee forty-eight hours prior to the execution of the search warrant. Moreover, appellee and appellee’s father both testified that appellee did not drive the car at all during the first two weeks of June, again in contradiction to the Cl’s statements in the affidavit. The suppression court granted appellee’s motion to suppress the evidence on April 10, 1991. This timely appeal followed.

The Commonwealth contends that the court improperly suppressed the evidence seized during the execution of the search warrant. When the Commonwealth appeals the adverse decision of a suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole that remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 215-16, 469 A.2d 137, 139 (1983) (plurality opinion) (citing Commonwealth v. Goodwin, 460 Pa. 516, 522-23, 333 A.2d 892, 895 (1975)).

Both the United States Constitution and the Pennsylvania Constitution prohibit unreasonable searches and seizures. See U.S. Const. Amendment IV; Pa. Const. Art. I, § 8. The starting point in determining whether a search and seizure conducted pursuant to a search warrant was unreasonable is to question whether probable cause existed to issue the search warrant. See Pa.R.Crim.P. 2003(a) (“[n]o search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority”); see also Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984) (“[bjefore an issuing authority may issue a constitutionally valid search warrant he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search”) (citations omitted).

In 1985, our Supreme Court followed the United States Supreme Court in adopting a totality-of-the-circumstances analysis to determine if probable cause exists to support a search warrant. In Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), the Pennsylvania Supreme Court stated:

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

Gray, 509 Pa. at 484, 503 A.2d at 925 (citations omitted). However, if a search warrant is based on an affidavit containing deliberate or knowing misstatements of material fact, the search warrant is invalid. See Commonwealth v. Bonasorte, 337 Pa.Super. 332, 347, 486 A.2d 1361, 1369 (1984) (misstatement of police officer); see also Commonwealth v. D’Angelo, 437 Pa. 331, 337, 263 A.2d 441, 444 (1970) (misstatement of police officer). Cf. Commonwealth v. Bradshaw, 290 Pa.Super. 162, 165, 434 A.2d 181, 182 (1981) (court recognized that material misstatements by confidential informant invalidate search warrant).

“A material fact is one without which probable cause to search would not exist.” Commonwealth v. Tucker, 252 Pa.Super. 594, 599, 384 A.2d 938, 941 (1978) (citation omitted). An affidavit underlying a search warrant must set forth a concrete time frame in which the confidential informant observed the alleged criminal activity forming the basis for his tip. Cf. Commonwealth v. Edmunds, 526 Pa. 374, 382, 586 A.2d 887, 890-91 (1991) (search warrant was facially invalid because it did not reference time that informant observed activity).

In the instant case, the affidavit supporting the search warrant stated

Within the past two weeks the affiant listed on the face sheet of this warrant did speak with the confidential reliable informant also listed on the face sheet of this warrant on several occasions____ The Cl stated that he has observed George Clark deliver cocaine on the east side of the city and in the Lamokin Village housing project on several occasions____ The Cl stated that Clark delivers the cocaine in a 1970’s Pontiac Ventura Dark Gray in color with a burgundy rag top____ The Cl stated that he has over heard [sic] Clark take orders from other individuals for cocaine, when Clark has stated that he would go and get the caine [sic]. The Cl has followed Clark to 76 West 8th Street where Clark resides. He would enter the house and then return to his vehicle within a couple of minutes with the controlled substance. The Cl saw the cocaine in George Clarks [sic] hands. The Cl saw this in the past 48 hrs.

Commonwealth Exhibit 1 (emphasis added). Thus, the affidavit references concrete time frames of two weeks and forty-eight hours. However, the time references are not factually correct.

The instant affidavit was sworn on June 15, 1990. At the suppression hearing, appellee introduced a receipt from McCauls Auto Service, which established that appellee’s car was in the shop for repairs from June 12-16, 1990. Furthermore, appellee and his father both testified that on the Memorial Day weekend about two weeks before the instant search warrant was issued, appellee was stopped twice while driving to work for driving with a suspended license. After the second stop, appellee’s father took the keys away from him, and removed the tags and license plate from the car. Both parties testified that appellee did not drive the car at all during the first two weeks of June. See N.T., November 16,1990, at 14-17, 25, 31-32. Because of this evidence and testimony, it is apparent that the information provided by the Cl with respect to the time frame was inaccurate, and a necessary element of the search warrant affidavit is missing. Moreover, because it would have been impossible for the Cl to observe appellee engaging in the conduct described at the time indicated, we can infer that this misstatement was knowingly made. Hence, the search warrant at issue was invalid, because it was based on an affidavit lacking in probable cause.

Nonetheless, appellant argues that Pennsylvania law does not permit an attack on the veracity of the confidential informant, because of the good faith exception to the exclusionary rule applied by this court in Commonwealth v. Bradshaw, 290 Pa.Super. 162, 434 A.2d 181 (1981). However, appellant’s reliance on Bradshaw is misplaced. Our Supreme Court has recently held that Article I, Section 8 of the Pennsylvania Constitution does not incorporate a good faith exception to the exclusionary rule. Commonwealth v. Edmunds, 526 Pa. 374, 383, 586 A.2d 887, 891-92 (1991). The court carefully examined the principles underlying the exclusionary rule, as well as the history of Article 1, Section 8, and concluded that the rule’s purpose was much broader than the analogous federal provision.

Justice Cappy, writing for the majority, noted that while the United States Supreme Court, in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), reh’g denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984), was able to find that a good faith exception would not deviate from the Fourth Amendment’s purpose to deter willful police misconduct, the same analysis could not be applied to the Pennsylvania provision:

the exclusionary rule in Pennsylvania has consistently served to bolster the twin aims of Article I, Section 8; to-wit, the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause. [Commonwealth v.] Melilli, [521 Pa. 405, 555 A.2d 1254 (1983) ]. As this Court explained in Commonwealth v. Miller:

The linch-pin that has been developed to determine whether it is appropriate to issue a search warrant is the test of probable cause. Commonwealth v. Chandler [505 Pa. 113, 477 A.2d 851], supra. It is designed to protect us from unwarranted and even vindictive incursions upon our privacy. It insulates from dictatorial and tyrannical rule by the state, and preserves the concept of democracy that assures the freedom of its citizens. This concept is second to none in its importance in delineating the dignity of the individual living in a free society.

Edmunds, supra., 526 Pa. at 398, 586 A.2d at 899 (citing Commonwealth v. Miller, 513 Pa. 118, 127, 518 A.2d 1187, 1191-92 (1986)). In light of this history and purpose, the court concluded that to adopt a good faith exception to the exclusionary rule would “virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.” Edmunds, supra, 526 Pa. at 399, 586 A.2d at 899. Consequently, Edmunds requires us to suppress the evidence seized under the instant invalid search warrant, notwithstanding the good faith with which the officer may have relied on the CPs information. Accordingly, we affirm the order of the suppression court.

Order affirmed.

CAVANAUGH, J., files a concurring Opinion.

POPOVICH, J., concurs in the result.

CAVANAUGH, Judge,

concurring:

I join with the majority opinion since I agree with Judge Prescott of the suppression court that as required by law, the police failed to undertake an independent investigation after receiving the statement from the confidential informant.

      . 35 Pa.S.A. § 780-113(a)(16).

      . 35 Pa.S.A. § 780-113(a)(16).

      . 35 Pa.S.A. § 780-113(a)(32).

      . We note that the Commonwealth has certified that suppression of the evidence would substantially impair its prosecution of appellee. See Appellant’s Brief at 1. We will, therefore, entertain its appeal. See Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985).

      . The Bradshaw court did not, however invalidate the search warrant based on material misstatements because of the good faith exception to the exclusionary rule. This exception has since been rejected by our Supreme Court. See infra page 1327 for discussion of Commonwealth v. Edmunds.

      . The exclusionary rule is “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect." United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984) (citing United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)), reh’g denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984). The rule’s practical effect is to exclude evidence seized in violation of the Fourth Amendment. Pennsylvania did not adopt the exclusionary rule until Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963), our Supreme Court interpreted Mapp as requiring the exclusion of unlawfully seized evidence. Id. 411 Pa. at 64, 190 A.2d at 309.

      . The Bradshaw court held that although the affidavit supporting the search warrant was based on deliberate misstatements by a Cl, it was not necessary to suppress the evidence because the police officer reasonably believed and relied on the statements in the facially valid search warrant. Bradshaw, 290 Pa.Super. at 166-67, 434 A.2d at 183.

      . We recognize that the instant search warrant was issued in 1990, before Edmunds was decided. However, in Commonwealth v. Farrington, 528 Pa. 183, 595 A.2d 1146 (1991), our Supreme Court vacated a Superior Court Memorandum decision applying the good faith exception where evidence was seized pursuant to an invalid search warrant issued in 1988. The Supreme Court remanded for reconsideration in light of Edmunds. Because the Supreme Court has thus indicated that its unequivocal rejection of the good faith doctrine applies to search warrants issued prior to Edmunds, we are bound to follow it here. In so doing, we are also guided by similar applications of Edmunds by other panels of this court. See Commonwealth v. Bagley, 408 Pa.Super. 188, 596 A.2d 811, 816 (1991) (police not entitled to invoke good faith exception for evidence seized pursuant to 1989 search warrant); Commonwealth v. Grubb, 407 Pa.Super. 78, 595 A.2d 133, 136 (1991) (court bound to follow Edmunds in rejecting good faith doctrine).


source: Caselaw Access Project

author: POPOVICH, Judge: WIEAND, Judge, KELLY, Judge,

license: Public Domain

text:
    602 A.2d 1328
    COMMONWEALTH of Pennsylvania, Appellee, v. Matthew A. METZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1991.
    Filed Feb. 4, 1992.

      Patrick J. Thomassey, Monroeville, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

We are confronted for the first time with an issue involving the legality of a police stop at a roadblock. This issue presents itself in an appeal from judgment of sentence entered September 28, 1990, in the Court of Common Pleas of Allegheny County following the appellant’s conviction on, inter alia, two misdemeanor counts of possession of a controlled substance, one misdemeanor count of carrying a firearm without a license and one misdemeanor count of possessing a firearm illegally as a former convict. The sole issue raised by appellant, Matthew A. Metz, is whether the court below erred in denying his motion to suppress evidence obtained as a result of an automobile stop. We affirm.

Our standard of review is clear. As we stated in Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990):

In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Id., 392 Pa.Superior Ct. at 111, 572 A.2d at 717.

The relevant facts are fairly summarized in the Commonwealth’s brief, as follows:

On July 1, 1988 at approximately 11:30 p.m., the Pennsylvania State Police had, pursuant to Pa.C.S. § 6308(b), established a systematic roadblock at the entrance to the Blair Heights Housing Project in Clairton and were stopping vehicles to check for registration, proof of insurance and driver’s license. Marked state police vehicles were at the scene (Trial Transcript at 18-19).
While performing the road check, Trooper Raymond Paul noticed a 1967 Pontiac convertible pull up to the check area. The vehicle came to a sudden stop and immediately started to back up and pull away from the officers. The officers immediately pursued the car and stopped it.
Once the vehicle was stopped the officers approached appellant who was driving the car and asked him to step out of the car and produce his driver’s license and registration. When appellant got out of his car Trooper Paul observed in plain view from outside the vehicle, a .357 magnum ‘down alongside of the driver’s seat.’ (Trial Transcript 21-23, 34-40). The passengers were then ordered out of the car. The officer recovered the weapon and found it to be fully loaded. Drug paraphernalia was found in the back seat. Appellant did not have a license to carry the gun and later informed police that the weapon had been lent to him as collateral for a loan. (Trial Transcript at 30-31, 55). Appellant was arrested and transported to the police station. Eight packets of heroin and nine packets of cocaine were later discovered in the patrol car behind the seat where appellant was sitting. (Trial Transcript at 26-30, 56-57).

Brief for Appellee, at 10-11.

Appellant does not challenge the legality of the systematic road check. Instead, appellant asserts that the police officers did not possess an adequate reason to stop his vehicle. Appellant contends that his having stopped at the check area and backed his vehicle away from the police officers was not a violation of the Vehicle Code, nor could it have provided the officers with reasonable suspicion that criminal activity was afoot.

Proceeding to the merits of appellant’s argument, we note that our research has disclosed no opinion of an appellate court of this Commonwealth which addresses the issue of whether a motorist’s stopping and turning his vehicle before reaching a police roadblock could, per se, provide the officers conducting the roadblock with reasonable suspicion that criminal activity was afoot or that the motorist was in violation of the Vehicle Code.

Several of our sister states have, however, ruled on this question. In Snyder v. State, 538 N.E.2d 961 (Ind.Ct.App. 1989), a state trooper stopped appellant after he made a U-turn approximately 100 yards from a police roadblock. The appellant had committed no traffic violations and was not driving erratically, but was stopped because it appeared to the trooper as though he was trying to avoid the roadblock. Id. at 963.

Subsequent to the stop, the trooper saw alcohol containers in appellant’s vehicle and detected alcohol on his breath. Tests revealed that appellant had a blood alcohol content over the legal limit. He was arrested and charged with operating a vehicle while intoxicated and operating a vehicle with .10% or more alcohol in his blood. Id. at 963.

Upholding the trial court’s denial of appellant’s motion to suppress evidence procured as a result of an unlawful stop, the District Court of Appeals of Indiana stated:

If police officers stationed at roadblocks were not permitted to stop such drivers, the very drivers the police seek to deter could flagrantly avoid the roadblocks and the stops would lose their deterrent value. [One of the troopers] testified that he had pursued and stopped drivers on numerous occasions who sought to avoid roadblocks and inevitably those drivers had suspended or expired licenses, or some other violation of the law____ His experience gave him specific and articulable facts and inferences drawn therefrom to form a reasonable suspicion that Snyder was committing a crime. Such might not always be the case when an officer sees a driver avoid a police roadblock. Likewise, a driver who simply turns off the road before entering the roadblock may not give rise to reasonable suspicion, unless coupled with other articulable facts such as erratic driving or traffic violations. A finding of a reasonable suspicion must be determined on a case by case basis.
The alternative is to tell police officers that in spite of their experience, they may not infer from a driver’s attempt to avoid a roadblock that the driver is very likely engaged in the commission of a crime. Such a rule would seem to tell police officers to ‘ignore reality.’

Id. at 965-66.

Similarly, in Coffman v. State, 26 Ark.App. 45, 759 S.W.2d 573 (1988), a police officer stopped appellant because he witnessed appellant pull into a driveway and turn his vehicle around before reaching a roadblock. The officer testified that appellant was not driving erratically, nor was he suspected of criminal activity. The sole reason the officer stopped appellant was because it appeared as though he was attempting to avoid the roadblock. An assisting officer detected alcohol on appellant’s breath. After failing a field sobriety test, appellant was arrested for driving while intoxicated. Id. at 47, 759 S.W.2d at 574.

Appellant asserted, inter alia, that the stop of his vehicle was an unconstitutional seizure because there was neither probable cause nor reasonable suspicion that he had committed or was about to commit a crime. Id. at 47, 759 S.W.2d at 574.

Upon reviewing the record of the trial court, the Arkansas Court of Appeals stated:

There is evidence from which it could be found that the appellant was approaching a roadblock made clearly visible by the presence of police vehicles with flashing blue lights; that the appellant attempted to avoid the roadblock; and that the trained police officers who were conducting the roadblock could reasonably suspect that one who attempted to avoid this roadblock was trying to hide some type of unlawful activity.

Id. at 49, 759 S.W.2d at 575.

Discussing what constitutes reasonable suspicion, the Coffman court, quoting United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), stated:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library scholars, but as understood by those versed in law enforcement [(emphasis in Coffman)].
To a trained police officer, the fact that a motorist attempted to avoid the roadblock in this case would surely excite a reasonable suspicion that, at the very least, the motorist was drunk, driving a stolen vehicle, did not have a valid driver’s license, or had some car light defect. These violations of the law would meet A.R.Cr.P. Rule 3.1 requirements since they involve danger of injury to other motorists. Therefore, we do not agree that the stop of appellant’s vehicle was unlawful; and after he was stopped, the appellant’s intoxicated condition was apparent and the officers had obvious probable cause to arrest him.

Id. at 49-50, 759 S.W.2d at 575-76.

Likewise, in Stanley v. State, 191 Ga.App. 603, 382 S.E.2d 686 (1989), appellant, upon reaching a police roadblock, stopped abruptly and backed his auto six to eight car lengths down the street away from the roadblock. Two officers on the scene stopped appellant and cited him for improper backing. When appellant got out of his car, the officers smelled alcohol on his breath and noticed that he had bloodshot eyes and was unsteady on his feet. Appellant was arrested. During a search of the appellant’s vehicle, the officers discovered contraband. Id. at 603, 382 S.E.2d at 686.

Appellant asserted, inter alia, that the trial court erred in denying his motion to suppress the evidence seized as a result of an unlawful stop. Affirming the judgment of the lower court, the Court of Appeals of Georgia stated:

[Ajppellant’s evasive action upon seeing a police roadblock and his backing of the automobile in apparent violation of OCGA § 40-6-240(a) were ‘sufficient to provide reasonable suspicion that appellant was, or was about to be, engaged in criminal activity. The officers were authorized to stop the automobile and question appellant. Therefore, the arrest following [observation of appellant’s behavior consistent with driving under the influence of alcohol was] valid.’

Id. at 604, 382 S.E.2d at 687 (quoting Coley v. State, 177 Ga.App. 669, 670(1), 341 S.E.2d 9 (1986)). See also, Boches v. State, 506 So.2d 254 (Miss.Sup.Ct.1987) and Smith v. State, 515 So.2d 149 (Ala.Crim.App.1987).

In Murphy v. Commonwealth, 9 Va.App. 139, 384 S.E.2d 125 (1989), the Virginia Court of Appeals noted the fine line between activity which would give rise to reasonable suspicion and that which would not. Therein, the appellant made a right turn onto a side street approximately 350 feet before a police roadblock. A police officer pursued appellant. After stopping the appellant, the officer recognized him as one who he knew had had his driver’s license suspended. A check with the Department of Motor Vehicles revealed that appellant had been adjudged an habitual offender. The officer then arrested appellant. Id. at 142, 384 S.E.2d at 126.

On appeal, Murphy asserted that the trial court erred in finding the stop of his vehicle was justified. The Virginia Court of Appeals stated:

In Stroud v. Commonwealth, 6 Va.App. 633, 636, 370 S.E.2d 721, 723 (1988), a panel of this court found that an abrupt U-turn executed 100 to 150 feet before a roadblock raised a reasonable suspicion of criminal activity in the mind of a state trooper with eleven years experience. In contrast, we find that the act of a driver in making a lawful right turn 350 feet before a roadblock does not give rise to a reasonable suspicion of criminal activity unless the driver’s turn or action is coupled with other articulable facts, such as erratic driving, a traffic violation, or some behavior which independently raises suspicion of criminal activity. ‘Each instance of police conduct must be judged for reasonableness in light of the particular circumstances’. Factors as subtle as the difference between a U-tum 150 feet from a roadblock and a lawful turn onto an existing roadway 350 feet from a roadblock may affect the determination. While Murphy’s turn onto the dead end street may have justified a ‘hunch’ that the driver might be in violation of the traffic laws or might be involved in criminal activity, a legal turn into an existing roadway prior to reaching a checkpoint, standing alone, does not warrant reasonable suspicion that the operator is involved in criminal activity. Under the government’s view, every citizen who turned onto a road within the sight of a checkpoint, for whatever legitimate reason, would be subject to an investigative detention. This result we cannot sanction.

Id. at 145-46, 384 S.E.2d at 128-29 (citations omitted).

The importance of viewing the circumstances surrounding a police stop in determining whether the stop was proper was further emphasized by the Virginia Court of Appeals in the recent case of Commonwealth v. Eaves, 13 Va.App. 162, 408 S.E.2d 925 (1991). In Eaves, a police officer stopped appellee after observing him suddenly activate his vehicle’s turn signal at a turn lane, make a U-turn, and proceed in the opposite direction of a police roadblock. The officer did not observe appellee commit any traffic violations. Reversing the lower court’s ruling suppressing evidence that appellee was an habitual offender, discovered during the stop, the Virginia Court of Appeals stated:

Unlike the situation in [Murphy v. Commonwealth, 9 Va.App. 139, 384 S.E.2d 125 (1989) ] where no suspicious circumstances existed apart from a lawful turn onto an existing roadway, [the officer who stopped appellee] characterized Eaves’ turn into the deceleration lane as ‘abrupt,’ ‘immediate’ and ‘quick.’ While Eaves was not legally required to give a signal of his intention to turn because no other vehicles were affected by his movement, the fact that he gave his signal while he was making the turn, rather than some distance before, is a factor supporting [the officer’s] conclusion that the decision to turn was not contemplated but, rather, was spontaneous and as a result of Eaves’ observation of the checkpoint. Under the circumstances of this case, as disclosed by the record, we hold that [the officer] possessed reasonable suspicion that Eaves’ purpose in turning was. to avoid the roadblock.

Id. at-, 408 S.E.2d at 927.

Likewise, in State v. Thill, 474 N.W.2d 86 (Sup.Ct.S.D. 1991), the Supreme Court of South Dakota found that a motorist who turned around in a driveway 350 feet from a roadblock, took a circuitous route, then proceeded back in the direction of the roadblock, gave a police officer reasonable suspicion that appellant was engaged in criminal activity-

The court stated:

Whether the avoidance of a roadblock constitutes reasonable suspicion to stop a motorist is an issue which has been addressed in several jurisdictions, with mixed results. At least five jurisdictions hold that a driver’s effort to avoid a roadblock is alone sufficient to raise an articulable and reasonable suspicion of criminal wrongdoing, supporting an investigatory stop (citations omitted).
In (State v. Talbot, 792 P.2d 489 (Utah App.1990) ], the Utah Court of Appeals examined this issue in the context of avoiding confrontation with the police. The court acknowledged the majority rule that the mere act of avoiding confrontation with the police does not create an articulable suspicion supporting a stop. The court reasoned that if a person may avoid or ignore an officer when approached on the street, a person should also be able to avoid a confrontation at a roadblock.[]
Notwithstanding the general freedom to avoid police confrontation, we find the avoidance of the police roadblock in this instance was sufficient to create an articulable and reasonable suspicion of criminal activity. Automobiles and their use on state roads are the subject of significant state regulation (e.g. licensing, registration). This fact distinguishes the cases relied upon in Talbot, the majority of which involved pedestrians. And while people are not shorn of their Fourth Amendment protection when they step from the sidewalks into their automobiles [ (citing Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979))], their actions on the road become subject to increased state regulation and restriction. Consequently, actions taken on the road, the character of which would be innocent in another context, may well give rise to an articulable and reasonable suspicion of a violation of the law respecting the use or ownership of an automobile.

Id. at 87-88.

The location of a roadblock with respect to where a motorist may make a lawful turn was an important factor in determining whether a police stop was proper in State v. Hester, 245 N.J.Super. 75, 584 A.2d 256 (1990). Therein, appellee made a U-tum 300 to 400 feet from a police roadblock and began to drive away, but committed no motor vehicle violations. Upon witnessing appellee’s actions, however, a patrolman stopped appellee, believing that he was intoxicated and trying to avoid the roadblock. The patrolman determined that appellee was sober, but a check of his driving credentials revealed that his license had been revoked. The officer issued a summons. At trial, the lower court suppressed the evidence acquired as a result of the stop. The state appealed. Id. at 77, 584 A.2d at 257.

Remanding the action to the lower court to determine whether a reasonable motorist would, under the circumstances, “have been aware that the police procedure in effect at the time required all motorists tí) proceed through the checkpoint”, Id. at 83, 584 A.2d at 260, the Superior Court of New Jersey stated: “Common sense draws one to the conclusion that permitting motorists to choose whether they desire to cooperate with a checkpoint will reduce its effectiveness, detract from its deterrent effect, and, on occasion, create safety hazards.” Id. at 81, 584 A.2d at 259.

Having analyzed the decisions set forth above, we now address the question of whether appellant’s actions give rise to reasonable suspicion under Pennsylvania law. In Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989), we held that

A noncustodial detention or ‘forcible stop’ occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. In order to justify a forcible stop under the fourth amendment, the police must point to specific and articulable facts that, taken together with the rational inferences from those facts, reasonably indicate that criminal activity may be afoot.

Id., 388 Pa.Superior Ct. at 190, 565 A.2d at 178 (citing Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). See also, Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988).

In the case at bar, the record reveals the area in which appellant was travelling was a well-known drug trafficking area (Trial Transcript at 17). Immediately after appellant entered the housing development, he came upon the roadblock. Appellant stopped his auto, turned it around and attempted to avoid the impending encounter with the police (Trial Transcript at 20). In view of appellant’s conduct in attempting to avoid the roadblock, as articulated by Trooper Paul (Trial Transcript at 19-22, 32-33) and Trooper Davis (Trial Transcript at 50-51), we find it was reasonable for these trained police officers to suspect that appellant was in violation of the Vehicle Code or engaged in criminal activity.

We are persuaded, to some degree, by the logic of the courts which have held that a motorist’s avoidance of a roadblock is alone sufficient to arouse reasonable suspicion in a police officer that the motorist is in violation of the Vehicle Code or engaged in criminal activity. However, we are reluctant to promulgate a per se rule to that effect. We hold, therefore, that a motorist’s avoidance or attempt to avoid a police roadblock must be coupled with other articulable facts in order to give a police officer reasonable suspicion that the motorist is in violation of the Vehicle Code or that criminal activity is afoot.

Instantly, the factual findings of the court below are supported by the record. We may not grant a new trial unless the court below erred in its legal conclusions drawn from these facts. We find no such error.

Judgment of sentence affirmed.

WIEAND, J., files a concurring opinion.

KELLY, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur in the decision to affirm the judgment of sentence. However, because appellant failed to preserve for appellate review the legality of the police stop of his vehicle after he attempted to avoid a police roadblock, I find it unnecessary to address the merits of this issue. My review of the record discloses that this issue was not raised in appellant’s post-trial motions, and, as such, has not been preserved for appellate review.

I respectfully disagree with the notion that issues not raised in post-trial motions or supplemental post-trial motions are preserved for review if they are passed upon by the trial court. This is not the law. “It is well settled that only issues raised in post-trial motions are preserved for appellate review.” Commonwealth v. Copeland, 381 Pa.Super. 382, 385, 554 A.2d 54, 55 (1988). See: Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979). See also: Commonwealth v. Heckman, 366 Pa.Super. 224, 227, 530 A.2d 1372, 1373 (1987); Commonwealth v. Thier, 354 Pa.Super. 7, 9, 510 A.2d 1251, 1252 (1986), cert. denied, 484 U.S. 846, 108 S.Ct. 142, 98 L.Ed.2d 98 (1987).

A contrary rule is not supported by the Supreme Court decision in Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988) or by Superior Court decisions in Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991) (en banc) and Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988). These decisions simply do not stand for the proposition that an issue which has not been raised in post-trial motions is preserved for appellate review merely because the trial court has considered the issue in its opinion. In all of the foregoing opinions, the issue to be reviewed had been raised in supplemental post-trial motions filed out of time and without prior leave of court. The trial court had nevertheless considered the issues and decided them on their merits. This was tantamount to permission by the trial court to file post-trial motions beyond the time allowed by the rule. Therefore, the issue was not deemed waived by appellant’s failure to raise the issue in his initial post-trial motions. However, none of these decisions change the well settled rule that issues not raised in post-trial motions are not preserved for appellate review.

Because the legality of appellant’s stop by the police has been waived, I concur in the result. I express no opinion regarding the right of police to stop and search a vehicle which has attempted to avoid a police roadblock.

KELLY, Judge,

concurring:

I concur in the result. I agree that the issue of the legality of the police stop was raised below, albeit in what may be considered “boilerplate” terms. Normally, this fact could suffice to establish waiver as it has been held repeatedly that boilerplate motions do not preserve issues for appeal. See e.g. Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987); Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987); Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc).

In this case, however, I am compelled to agree with the majority that the issue has not been waived. The purpose of considering arguments to be waived on appeal is to provide the tribunal with initial jurisdiction the first opportunity to address the issue. See e.g. DeMarco v. Jones & Laughlin Steel Corp., 513 Pa. 526, 532 n. 4, 522 A.2d 26, 29 n. 4 (1987); Commonwealth v. Milliner, 442 Pa. 537, 542, 276 A.2d 520, 523 (1971). I discern from several recent cases that where no such purpose is served, waiver analysis should not be applied. See Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (Table) (1988) (slip opinion at 1); Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991); Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988).

Here, no purpose would be served by considering appellant’s claim waived. However vague the terms in which appellant phrased the issue of the legality of the police stop of his vehicle below, the trial court apparently gleaned from the appellant’s argument the precise issue brought before this Court on appeal and addressed it in its opinion. The tribunal with initial jurisdiction was therefore not only provided with, but actually seized the first opportunity to address the issue. Under these circumstances, I believe we must consider the issue preserved for appeal. See Commonwealth v. Sheaff, supra; Commonwealth v. Sopota, supra; Commonwealth v. Hewett, supra.

With regard to the merits of appellant’s claim that the police lacked reasonable suspicion to stop him after he avoided the roadblock, I must part company with the majority. In its opinion, the majority concludes that something other than an attempt to avoid a police roadblock is required to serve as a basis for an officer’s reasonable suspicion that criminal activity is afoot. I cannot agree.

When a police officer requests that a motorist stop his or her vehicle, such as at a roadblock, the motorist must comply. See 75 Pa.C.S.A. § 6308. Indeed, safety, if not common sense, dictates this result. It would be absurd to conclude that a motorist could merely drive straight past a team of police cruisers and officers stationed at the side of a roadway, contumaciously ignoring their orders to stop, and flouting the obvious dangers involved. Moreover, the purpose of the roadblock would be hallow indeed if it allowed motorists to proceed or be detained at their own discretion.

In my opinion, there exist insufficient reasons for distinguishing, for the purposes of determining reasonable suspicion, between various means by which a motorist may fail to comply with a roadblock. However accomplished, the motorist’s goal remains the same: to prevent the constitutionally authorized detention. It is true, of course, that wholly innocuous reasons, such as those based upon delay or medical emergencies, may motivate motorists to avoid a roadblock. Such reasons, however, may also prompt motorists to navigate their cars through the roadblock without stopping. We would not prevent the police from briefly detaining (and perhaps even arresting) motorists for driving through the middle of a checkpoint because of the possibility of such benign motives, and I would not allow such a possibility from preventing the police from detaining a motorist for intentionally avoiding one either. So long as the roadblock is in the motorist’s sight, then it matters not, in my view, the method of noncompliance; any raises a level of reasonable suspicion.

By holding to the contrary, the majority implicitly concludes that a motorist may exercise his or her discretion in such a way as to comply or not with a roadblock. If this is so, then the very intent of the systematic detentions will be effectively thwarted if not totally eviscerated by its ruling. No such ruling or result has been previously contemplated. Had either the Pennsylvania or the United States Supreme Court assumed that such motorist discretion would be available at roadblocks, then they need not have considered, as they did, the constitutional implications of such systematic checkpoints. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987). Rather, if the discretion to simply avoid the intrusion altogether had been assumed, then the checkpoint itself would not have been considered a constitutionally recognizable seizure in the first place. See Florida v. Bostick, 501 U.S.-, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (where an individual is free to decline an officer’s request to inspect the individual or his or her property, the mere request constitutes no constitutionally recognizable search or seizure). Thus, for the respective Supreme Courts to have reached the question of the constitutionality of roadblocks wherein individuals are stopped without any particularized suspicion, each Court must have presumed, as do I now, that the roadblock is a mandatory demand to which a motorist must comply, and that the failure to so comply would not be tolerated either by the officers involved or by the courts upon review.

Because I believe that compliance with a roadblock within the motorist’s sight is legally obligatory, I would hold that avoidance of such a roadblock provides a basis for the police to presumptively infer that the motorist who does so is conscious of his or her guilt and is seeking to avoid its detection. The presumption could, of course, be rebutted by facts which might otherwise dispel such suspicion, e.g. evidence of a medical emergency, etc. Where no evidence to rebut the presumption exists, however, I would find the officer maintains a reasonable suspicion that criminal activity is afoot and that an investigatory stop made thereafter is constitutionally permissible.

I note that I find nothing about such a presumption in any way inconsistent with either Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or its progeny which concludes that pedestrian’s flight alone does not constitute reasonable suspicion. See Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973); Commonwealth v. Martinez, 403 Pa.Super. 125, 128, 588 A.2d 513, 514 (1991). No court of which I am aware, certainly none cited by any sub judice, has authorized police to conduct systematic obligatory “sidewalk blocks.” The pedestrian, therefore, has no obligation to comply with any detention upon merely being viewed by police. See Florida v. Bostick, supra. The free citizen in a free country such as ours of course retains the discretion to run, walk, crawl or stop at that moment or any other under such circumstances, and accordingly, neither the police nor the courts can draw any adverse inferences from the exercise of any such discretion.

Motorists, however, are granted privileges by the state to operate their vehicles on highways that are highly regulated and of potentially great danger. See Commonwealth v. Tarbert, supra. Unlike pedestrains, therefore, they must submit to systematic detentions based on no particularized suspicion. Id. When one who is subject to such detention is observed intentionally avoiding it, we are left with facts, not available to the officer who merely witnesses a pedestrian flee, from which we may infer a consciousness of guilt and a fear of its detection. To find decisions regarding pedestrians on a sidewalk controlling in roadblock avoidance cases is essentially to discount the fact that the motorist, unlike the pedestrian, has chosen to avoid an obligatory detention. In my opinion, no reasonable police officer with roadblock experience would similarly discount such a fact. This Court should not either. See United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981) (Evidence must be seen and weighed “as understood by those versed in law enforcement.”); see also United States v. Ceballos, 719 F.Supp. 119, 124 (E.D.N.Y.1989) (“A virtuoso may draw reasonable inferences and suspicion of criminal involvement that would elude an amateur.”).

It is important to remember that at issue is the justification for only a brief and investigatory stop. The quantum of suspicion, therefore, need not rise to a level of certainty, a preponderance of evidence, or even a fair probability. The suspect’s expectation of privacy is not sufficiently infringed by such governmental intrusion as to require any more than a reasonable suspicion which is a level “obviously less demanding than for probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 308 (1990) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)).

I would hold that the evidence of intentional avoidance herein, i.e. throwing the car in reverse upon realizing that the roadblock was approaching, gave the police more than the level of suspicion necessary. No evidence served to rebut the presumption that appellant’s intentional avoidance was due to his consciousness of guilt and fear of its detection. Thus, I agree that the stop was justified. Because the majority reaches this result by other means, I concur.

      . We note that the Commonwealth contends that appellant waived this issue by failing to raise it specifically in his post-trial motions, which were filed pro se. However, because appellant raised the issue in pre-trial motions, albeit in a “boilerplate" fashion, and the lower court found the language in appellant’s motion for a new trial and arrest of judgment sufficiently specific to address this issue on its merits, it is preserved for our review. Cf., Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991).

      . We note that it is well established that roadblocks conducted in compliance with Section 6308(b) of the Vehicle Code and the relevant case law do not violate the Constitution of our Commonwealth. See, Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987), Commonwealth v. Fioretti, 371 Pa.Super. 535, 538 A.2d 570 (1988), Commonwealth v. Myrtetus, 397 Pa.Super. 299, 580 A.2d 42 (1990).
      At the time of the incident in question, Section 6308(b) of the Vehicle Code provided as follows:
      (b) Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.
      75 Pa.Cons.Stat.Ann. § 6308(b), as amended 1985, June 19, P.L. 49, No. 20, § 10, effective in 60 days.
      Since, however, the appellant does not question whether the roadblock in the instant case was conducted in compliance with the Vehicle Code and the relevant case law, we will not speak to that issue.

      . See also, State v. Powell, 591 A.2d 1306 (Me.Sup.Ct.1991), wherein a police officer observed appellee pull into a driveway 700 yards before a police roadblock, turn his vehicle around, and proceed in the opposite direction. The officer stopped appellee. Appellee was subsequently arrested and charged with driving while under the influence of intoxicating liquor. Id. at 1307-08.
      Affirming the lower court’s ruling suppressing evidence that appellee was driving while under the influence, the Supreme Court of Maine stated:
      Although the officer may have suspected that Powell reversed his direction to avoid the roadblock, the court did not find that suspicion reasonable. The court found that the most the officer could reasonably conclude from Powell’s actions was that he turned around in the face of police lights and cruisers in the distance. Under the circumstances of this case, the court was not compelled to find that the officer had a reasonable suspicion of criminal activity.

        Id. at 1308.

      . The court in Talbot stated:
      We hold that avoiding a roadblock, even assuming its legality, without more, does not create an articulable suspicion that the occupants have engaged in or are about to engage in criminal activity. The act merely demonstrates a desire to avoid police confrontation ... and at best only gives rise to a hunch that criminal activity may be afoot.

        Id. at 495.
      The Talbot court further stated, in a footnote, "By this holding, we do not mean to suggest that flight must be entirely ignored____ Flight may heighten an officer’s general suspicion and provide additional justification for a stop. We merely hold that ‘flight,’ alone, is not sufficient to create an articulable suspicion for a stop.’’ Id. n. 13.

      . But see, Pooler v. MVD, 306 Or. 47, 755 P.2d 701 (1988), wherein appellee made a U-turn before reaching a sobriety roadblock conducted by the Oregon State Police. A police officer assigned to stop vehicles appearing to avoid the roadblock stopped appellee’s vehicle and detected alcohol on appellee’s breath. The officer then arrested appellee. On appeal, the state conceded that the stop of appellee was unlawful, rendering the evidence procured as a result of the stop inadmissible. Consequently, the Supreme Court of Oregon did not rule on the issue presented herein.

      . Moreover, in view of the probability of such an appeal returning to this and other court’s through collateral challenges, it ill serves the doctrine of judicial economy to find waiver in such cases as that herein. See Commonwealth v. Bennett, 512 Pa. 525, 530 n. 5, 517 A.2d 1248, 1250 n. 5 (1986) (“As day follows might ... appellee will stand before us ... alleging ineffective assistance of trial and appellate counsel.”).


author: HESTER, Judge:

text:
    602 A.2d 1338
    COMMONWEALTH of Pennsylvania v. Joseph R. SERVICH, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1991.
    Filed Jan. 16, 1992.
    Reconsideration Denied March 3, 1992.

      Paul R. Gettleman, Zelienople, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Joseph Servich appeals the September 8, 1989 judgment of sentence imposed after a jury convicted him of third degree murder, conspiracy, theft, and unauthorized use of an automobile. Appellant was sentenced to a total term of imprisonment of nineteen and one-half to thirty-nine years imprisonment. We find that all eight of appellant’s issues are meritless; we affirm.

Appellant’s convictions arise from his participation in the murder of Albert Falbo on May 17, 1987. The Commonwealth’s evidence was as follows. Megan Pedzwater, Kathleen Sheam, and Christine Tallant saw Mr. Falbo alive in the area of his Dormont apartment at approximately 8:30 to 9:00 p.m. on Saturday, May 16, 1987. The witnesses viewed the victim in a car with two other men, one of whom they could not identify and the other of whom they identified as Robert Blake. The women were able to identify Blake because he yelled obsenities at them. Blake was tried separately from appellant and convicted of second degree murder and related crimes in connection with the incident.

The medical testimony established that Mr. Falbo died from thirty-three stab wounds. He was discovered by his supervisor, David Lombardi, on May 19, 1987, at approximately 10:30 a.m. Mr. Lombardi testified that the victim did not appear for work on May 18,1987, and May 19,1987, and that he went to the victim’s apartment because he continually received a busy signal when he telephoned.

Police were summoned, and Pittsburgh Police Detective Lee Torbin testified that he supervised the investigation. Appellant’s fingerprints were discovered on a glass that was found inside Mr. Falbo’s apartment. Based on an anonymous tip made to the Pittsburgh police, Detective Torbin went to a bar in the strip district in Pittsburgh. The owner of the bar gave the detective the name of Daniel Blake as someone who was involved in the murder. Daniel Blake was located and interviewed on May 22, 1987.

Daniel, Robert Blake’s brother, testified as follows. Appellant moved into Daniel’s apartment on May 7, 1987. On May 16, 1987, at 5:00 p.m., Daniel left for work from a strip district bar where he had been drinking with appellant and Robert. Daniel arrived home following work at approximately 12:30 a.m. Twenty minutes later, appellant arrived with blood on his shirt. Appellant informed Daniel that he had just killed someone. Appellant then took a wallet from his pocket, took the money from the wallet, and placed the wallet on top of a television set. Daniel looked through the wallet and recalled that it belonged to someone named Al. Appellant then washed, changed his clothing, and informed Daniel that he was going to Florida and to tell Robert. He left. Daniel placed appellant’s bloody clothing and the wallet in a large plastic bag and threw it into the Allegheny River. Police recovered the bag from the river. Identification documents bearing the name of Albert Falbo were discovered in the bag.

Florida State Trooper David Laing testified as follows. He observed appellant illegally walking along on an interstate highway on May 22, 1987. He cited appellant and released him. When a computer check revealed that appellant was wanted for murder in Allegheny County, the trooper returned to where he last saw appellant, placed him under arrest, and transported him to the police department, where the trooper gave appellant Miranda warnings.

Florida State Trooper Steve Sprague testified that he questioned appellant about what occurred in Pennsylvania. Appellant told Trooper Sprague that he and Robert Blake traveled from Pennsylvania to Georgia together and then went separate ways. Appellant said that he and Robert had planned to meet in Florida. Trooper Sprague then asked if Blake knew about the incident in Pittsburgh. Appellant replied that “Blake was involved and knew everything that had happened.” Notes of Testimony, (“N.T.”), at 10/26-28/88 (Vol. Ill), at 557. The Trooper also testified that appellant was arraigned at 8:30 a.m. on May 23,1987, which was within the Florida requirement that a defendant be arraigned within twenty-four hours of arrest.

Appellant testified as follows on his own behalf. After he and Robert Blake left the bar where they were drinking in the strip district, they encountered the victim driving his car. Robert, who was acquainted with Mr. Falbo, suggested that they go to Mr. Falbo’s apartment to drink. On the way, they stopped to purchase cigarettes at an AM-PM Mini Market near the victim’s home, which is where Robert yelled at the three women. After arriving at Mr. Falbo’s apartment, appellant drank a beer and watched television. Mr. Falbo sexually propositioned Robert and then told appellant to take his car and purchase some beer. Appellant left with the car and went to Sanremo’s bar in Pittsburgh. He drank a beer and watched the news on television. He then returned to Mr. Falbo’s house, where Robert was waiting for him outside. Robert entered the passenger’s side of the car and ordered appellant to drive away. Robert had dark stains on his clothing. Based on this evidence, the jury convicted appellant of conspiracy, third degree murder, theft, and unauthorized use of an automobile. This appeal followed denial of post-trial motions and imposition of the described sentence.

Appellant first challenges the trial court’s refusal to grant a mistrial under the following circumstances. Prior to trial, the defense discovered that Daniel Blake was to testify that when appellant arrived at the apartment at 12:30 a.m. on May 17, 1987, appellant stated that “he just killed a guy this time — a faggot.” Appellant presented a motion in limine to exclude the “this time” language, as it raised an impermissible inference that appellant had engaged in prior criminal activity. The trial court agreed and instructed the district attorney to tell the witness not to use the words “this time” when describing appellant’s comments. However, when asked to tell the jury what appellant said on May 17,1987, the witness did use the prohibited language. An immediate objection was made and sustained. A sidebar discussion ensued. The trial court determined that a curative instruction might direct the jury’s attention to the “this time” language and that the jury may not have noticed the reference. He then decided not to give a curative instruction and deferred ruling on the motion for mistrial until the close of the witness’s testimony.

The witness was subjected to rigorous cross-examination. The primary focus of this cross-examination was whether appellant had said that the victim was “a faggot” when he confessed to Daniel. Daniel had not included that language when initially describing appellant’s statement to police. Instead, appellant was described as saying that he killed “a guy.” Thus, during cross-examination, appellant emphasized this inconsistency in Daniel’s testimony. Daniel’s direct examination accounts for forty-five transcribed pages. Two hundred thirty-three transcribed pages appear in the record prior to the termination of his cross-examination, and ninety-five additional pages cover the witness’s redirect and recross. Daniel never repeated the language “this time.” At the close of Daniel’s testimony, the trial court concluded that a mistrial was not warranted.

Under these circumstances, we view Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989), as dispositive of appellant’s claim. There, we stated:

The decision of whether to declare a mistrial of a criminal prosecution is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Larkins, 340 Pa.Super. 56, 489 A.2d 837 (1985). The decision depends on whether or not improper evidence was admitted at trial that would so prejudice the fact finder that it would be unable to remain impartial, thereby prejudicing the accused beyond a reasonable doubt. Id. The admission of testimony from which a jury could infer past criminal conduct has been held to be reversible error. Commonwealth v. Phillips, 373 Pa.Super. 193, 540 A.2d 933 (1988). Reversal is not warranted, however, unless the record indicates that prejudice resulted from the testimony. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Mere “passing references” to criminal activity do not necessitate the granting of a mistrial unless prejudice results from the reference. Commonwealth v. Thomas, 361 Pa.Super. 1, 521 A.2d 442, appeal denied 516 Pa. 617, 531 A.2d 1119 (1987).

Id., 388 Pa.Super. at 103, 564 A.2d at 1287.

In the present case, this was an isolated, passing reference to criminal activity during the witness’s lengthy testimony. In addition, the parties focused on a different issue with respect to the witness’s testimony. The trial court was in the best position to determine whether the “this time” was prejudicial, rendering the jury unable to remain impartial. We defer to the trial court’s decision regarding the necessity for a mistrial.

Appellant next contends that it was error to refuse to grant his request to have the jury instructed on the defense of duress as to the charge of unauthorized use of an automobile. The request for a duress charge was premised upon the following evidence produced at trial. First, appellant noted that Robert Blake was acting unusual. Appellant gave as an example the fact that Robert yelled obscenities at the young women at the market. As to direct evidence of duress, appellant testified as follows. After Robert entered the car at Mr. Falbo’s apartment, he started “yelling and hollering to get the hell going.” N.T., 11/1— 4/91 (Vol. IV), at 787. Appellant then was ordered to go to Daniel’s apartment, where both men left the car. After Robert changed his clothing, the two then reentered the victim’s car, which appellant drove. Robert started to use obscenities again during the ride. They stopped at a gas station, where appellant exited the car to pump gasoline and Robert left the car to pay. Robert returned, entering the driver’s side of the car. Appellant then entered the passenger seat and asked Robert why he was using a car that did not belong to him. At that point, Robert said to appellant, “Shut the f__ up____ [I] already f__ed up one person, don’t make me f_you up.” Id., at 794-95.

Appellant suggests that this evidence was sufficient to warrant a charge on the defense of duress as to the charge of unauthorized use of an automobile. We disagree. 18 Pa.C.S. § 309 provides, “It is a defense that the actor engaged in the conduct charged ... because he was coerced to do so by the use of, or a threat to use, unlawful force against his person____” In the present case, appellant was not threatened with force until after he had three opportunities to avoid the situation. First, he was driving the car when Blake first approached him outside Mr. Falbo’s apartment. At that point, appellant did not have to allow Blake into the car and could have driven away. Second, appellant admittedly went into Daniel’s apartment and then voluntarily reentered the car with Robert. Third, appellant could have escaped while Robert was paying for the gasoline. The threat to use force did not occur until after these three opportunities to avoid using illegally the victim’s car. 18 Pa.C.S. § 309(b) provides that the defense of duress is not available “if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress.” Thus, appellant cannot avail himself of this defense since he placed himself in the situation where threats of force were made. Since the evidence did not warrant a charge on duress, the trial court did not err.

Appellant also argues that the trial court erred in allowing the Commonwealth to comment on the fact that appellant had not provided it with notice of the alibi defense that he presented through his own testimony. In support of his position, he suggests that he was not required to provide notice of the defense for two reasons: 1) the time of the murder was not set forth precisely in the indictment; and 2) he was the only witness to testify as to the alibi.

Pa.R.Crim.P. 305 C(l)(a) requires a defendant to notify the Commonwealth when he intends to present an alibi defense. There is no exception either when the Commonwealth cannot establish the precise moment of the murder or when the alibi is to be established solely through the testimony of the defendant. Appellant knew that he was going to present significant alibi defense. He testified that he left the crime scene during the murder to drink at a specified bar in Pittsburgh for a lengthy period. The Supreme Court has ruled specifically that a defendant’s testimony alone is sufficient to raise an alibi defense. Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).

Furthermore, the Commonwealth was prejudiced by the lack of notice. Appellant indicated both when he was in the bar and where it was located. If notified, the Commonwealth may have been able to rebut his testimony. The jury may have drawn an adverse inference from the Commonwealth’s failure to establish that appellant was not at the bar. Rather than allow for another continuance, which the defense had successfully obtained on many other occasions, the trial court determined that the Commonwealth would be permitted to explain why it was unprepared. Under these circumstances, we conclude that this was not error. See Commonwealth v. Feflie, 398 Pa.Super. 622, 581 A.2d 636 (1990) (trial court has broad discretion in choosing an appropriate remedy for a violation of Pa. R.Crim.P. 305).

Appellant also objects to the suppression court’s failure to suppress the inculpatory statement that he made to the Florida authorities. He first proposes that the court was incorrect in relying upon the testimony of State Trooper Laing that he informed appellant of his constitutional rights and that appellant waived them. Appellant is apparently arguing that a factual finding cannot be premised upon oral testimony. This, of course, is absurd. When reviewing the decision of a suppression court, we

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

Commonwealth v. Mickens, 409 Pa.Super. 266, 269, 597 A.2d 1196, 1198 (1991), quoting Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989). There is no authority for the proposition that a defendant’s waiver of his Miranda rights must be in writing, and since the trooper’s testimony establishes that waiver occurred, appellant’s contention must be rejected.

Appellant also argues that his statement must be suppressed since he was not arraigned within the time required under Pennsylvania law. We agree with the suppression court that this argument is meritless. Appellant was arrested in Florida and arraigned in accordance with that state's requirements. It would be “unrealistic to require law enforcement officers to be familiar with the rules of procedure of each of the fifty states.” Trial court opinion, 4/23/90, at 8. As appellant was processed in accordance with the United States Constitution and the law of the state where he was arrested, his claim must be rejected. See Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980) (in determining validity of arrest, the law of the state where the defendant was arrested is applied).

We also observe that appellant took the stand in his defense and essentially confirmed the substance of the statements that he now contends should be suppressed. N.T., 11/1-4/88, at 803. We have held that when the accused testifies in his own behalf and repeats the substance of a confession claimed to be inadmissible, the confession’s admission into evidence during the Commonwealth's case is rendered harmless beyond a reasonable doubt. Commonwealth v. Barnes, 273 Pa.Super. 295, 417 A.2d 656 (1979).

Appellant premises his next argument, which is that the evidence regarding his fingerprints should have been excluded, on his allegation that the Commonwealth could not “establish at what time the print was placed on the glass or if the glass was in the apartment when the print was placed on it.” Appellee’s brief at 31. This argument is frivolous. In Commonwealth v. Cichy, 227 Pa.Super. 480, 323 A.2d 817 (1974), we held that if the Commonwealth’s evidence can establish that fingerprints were impressed at approximately the time that the crime was committed, the fingerprints are probative evidence of guilt.

In the present case, it was stipulated that the victim’s apartment had been cleaned on the day of the murder, May 16, 1987, and that when the victim’s mother left his apartment at 11:30 a.m. on that day, there were no glasses underneath the coffee table. Police found the glass with appellant’s fingerprints under the coffee table during their investigation. Furthermore, appellant admitted to drinking beer inside the apartment just prior to the murder. Thus, his own testimony establishes that the fingerprints were impressed at approximately the time that the crime was committed and therefore were admitted properly under Cichy.

Appellant alleges next that it was impermissible for the Commonwealth to argue accomplice liability to the jury when it also proceeded on the theory that appellant, not Blake, had actually committed the murder. The law is to the contrary. Commonwealth v. Potts, 388 Pa.Super. 593, 566 A.2d 287 (1989), petition for allowance of appeal granted, 525 Pa. 656, 582 A.2d 322 (1990). In the present case, the Commonwealth noted during opening argument that it intended to present evidence on conspiracy and accomplice liability. Thus, the Commonwealth was permitted to argue regarding accomplice liability. Id.

Next, appellant alleges both that his sentence was excessive and that the sentencing court erred in imposing separate sentences on all four crimes. Appellant’s first argument as to his sentence relates to the discretionary aspects of sentencing. Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), require appellant to include in his brief a separate statement of reasons relied upon for this appeal. Appellant has not complied with that requirement.

Furthermore, the Commonwealth, relying upon Tuladziecki, has objected to the lack of a statement. In accordance with the dictates of the Supreme Court’s decision in Tuladziecki, we are precluded from addressing the merits of this sentencing claim. Accord Commonwealth v. Rochon, 398 Pa.Super. 494, 581 A.2d 239 (1991). Compare: Commonwealth v. Zelinksi, 392 Pa.Super. 489, 573 A.2d 569 (1990) (where Commonwealth does not object to lack of a statement, we may, in our discretion consider sentencing issue); Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (same).

Appellant’s second objection to his sentence is that the crime of theft and unauthorized use of the car should have merged for sentencing purposes and that the crimes of theft, conspiracy, and third-degree murder should have merged for sentencing purposes. As merger claims relate to the legality of the sentence, Tuladziecki does not apply, and this claim may be reviewed. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) (merger issue relates to legality of sentence); Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979).

The current law on merger derives from Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989), and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). Under Williams, crimes do not merge unless: (1) the crimes have the same elements, i.e., are lesser included offenses, and (2) the facts of the case are such that the facts which establish one criminal charge also serve as the basis for the additional criminal charge.

In this case, even if we assumed that the crimes were lesser included offenses, appellant’s claims would fail. Appellant was convicted of one count of theft. The evidence established that appellant both stole the money from Mr. Falbo’s wallet and took his car. Thus, the stolen car does not serve as the sole basis for the theft conviction. The third-degree murder conviction results from appellant’s (or his accomplice’s) action of stabbing the victim, and the conspiracy conviction rests on the existence of an agreement between appellant and Blake to murder and rob Mr. Falbo. The facts of this case are such that the facts which establish one criminal charge do not serve as the sole basis for the additional criminal charges. Accordingly, merger does not apply, and appellant’s argument fails.

Judgment of sentence affirmed.

      . The Commonwealth relies upon Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375, 377 (1991), where a plurality of the Court stated that “in the context of simultaneous verdicts, the trial court may sentence separately for each distinct statutory crime of which the defendant is convicted, limited only by express legislative intent to the contrary.” However, Burkhardt is not precedential as to the merger issue. Commonwealth v. Bird, 409 Pa.Super. 211, 217 n. 6, 597 A.2d 1169, 1172 n. 6 (1991).


author: DEL SOLE, Judge:

text:
    602 A.2d 1346
    In re Trust Under Deed of Malinda B. FARROW, Deceased Settlor. Appeal of FIRST PRESBYTERIAN CHURCH OF SHAMOKIN.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1991.
    Filed Feb. 6, 1992.

      Vincent B. Makowski, Shamokin, for appellant.
    John McLaughlin, Asst. Public Defender, Danville, for participating parties Geisinger Medical Center, Salvation Army, Shamokin Branch Monmouth Memorial Hospital and Shamokin Chapter of American Red Cross.
    Before DEL SOLE, JOHNSON and HESTER, JJ.
   DEL SOLE, Judge:

In the instant case we are asked to determine whether the orphan’s court abused its discretion or committed an error of law in its application of the doctrine of cy pres to the facts of the present case. Will of Porter, 301 Pa.Super. 299, 303, 447 A.2d 977 (1982). We hold that there was no abuse of discretion or error of law, and affirm the equitable judgment of the trial court.

The facts are as follows. Malinda B. Farrow, settlor, executed a deed of trust with the direction to pay thes income from the trust to the following persons during their lives in the following order: to her daughter, Malinda R. Farrow, otherwise to her issue, per stirpes, or otherwise to the settlor’s husband, Walter M. Farrow, or otherwise to the settlor’s sister, Rose R. Lowry. Walter M. Farrow, and Rose Lowry predeceased the settlor’s daughter, and daughter died in 1988 without issue. Upon this occurrence the trustees were instructed to distribute the principal and any undistributed or accumulated income of the trust equally to and among six charities: (a) First Presbyterian Church, Shamokin, Pennsylvania, (b) Moses Taylor Memorial Church, Elberon, New Jersey, (c) Geisinger Memorial Hospital, Danville, Pennsylvania, (d) Shamokin Chapter, American Red Cross, (e) Branch of Salvation Army located at Shamokin, Pennsylvania, and (f) Monmouth Memorial Hospital, Long Branch, New Jersey.

The trustee, Mellon Bank (East), N.A., was unable to locate a Moses Taylor Memorial Church. It was in touch with Moses Taylor, VII, who recalled that the original Moses Taylor had a summer home in or near Elberon, New Jersey, but was unaware of any church which bore his ancestor's name. The trustee also contacted the development office of Moses Taylor Hospital in Scranton, Pennsylvania, which reported that it did not have any knowledge of any religious institution with a similar name, despite being very familiar with the Moses Taylor lineage.

Consequently, the Orphan’s Court of Northumberland County directed the trustees to institute a cy pres proceeding to determine the appropriate beneficiary of the share of the trust which the Settlor directed be given to the Moses Taylor Memorial Church [Taylor]. All interested parties were notified, a hearing was held and the Honorable Samuel C. Ranck, P.J., ordered that the one-sixth (Vb) share given to Moses Taylor Memorial Church be distributed equally to the five remaining beneficiaries.

First Presbyterian Church of Shamokin [First Presbyterian] appeals from this order, arguing that the cy pres doctrine was misapplied and that the Taylor share should have been distributed to the charity which most resembles the one the donor originally intended to benefit. Although, Appellant admits that the Salvation Army is also a church, it claims that for a variety of reasons it more clearly resembles the charity the settlor intended to benefit, and should be the recipient of the Taylor share.

The cy pres doctrine has been codified at 20 P.A.C.S. § 6110. It states in pertinent part that, “if the charitable purpose for which an interest is conveyed shall be or become indefinite or impossible or impractical of fulfillment, ... the court shall order an administration or distribution of the estate for a charitable purpose in a manner as nearly as possible to fulfill the intention of the conveyor ...” (emphasis added). The Restatement’s definition of the doctrine has also been cited in our case law. See, In re Women’s Homoeopathic Hospital of Philadelphia, 393 Pa. 313, 142 A.2d 292 (1958). It states:

If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor. Restatement (Second) of Trusts at Section 399.

The intention of the settlor must be derived from an examination of the entire will. In re Pruner’s Estate, 400 Pa. 629, 635, 162 A.2d 626, 629 (1960). In examining the entire will it is evident that the intention of the Settlor was to first benefit her family and then to benefit six named charities. None of the six designated charities were favored with a larger share than the others.

The application of the doctrine of cy pres requires the court to exercise its discretion in such a manner as to award the fund to a charity which most resembles the one the Settlor intended to benefit. Women’s Homoeopathic Hospital, supra, 393 Pa. at 318, 142 A.2d 292. To that end, it is necessary to examine the purposes and objects of the defunct or non-existent organization, Id.; Kay’s Estate, 456 Pa. 43, 317 A.2d 193 (1974), the locality that the charity intended to serve, William’s Estate, 353 Pa. 638, 46 A.2d 237 (1946); Kay, supra, and the nature of the population which was the intended object of the charitable gift. Women’s Homoeopathic Hospital, supra; Will of Porter, supra.

In the instant case we cannot conduct a meaningful inquiry into these questions, because as Judge Ranick’s Opinion at page 5 states, “In the present case, we cannot ‘study’ and compare the Moses Taylor Church to the other named charities because the record is barren of evidence concerning the Moses Taylor Church.” We do not know the corporate purposes of the Taylor Church, nor do we know its locale or the nature of the population served. Indeed, the only similarity between the lapsed beneficiary and Appellant, First Presbyterian, is the use of the term “Church”, and since we cannot know the nature or function of this defunct or non-existent Church, to decide this case based on the finding that it is closest to the name of the non-existent organization used by the settlor is error, See, Kay, supra, 456 Pa. at 47, 317 A.2d 193. In fact, in several cases in which the designated charity was defunct or ambiguously labelled in a testamentary or trust document, and the court applied the cy pres doctrine, the lapsed share did not go to any of the named beneficiaries, but to a charity not mentioned in the will or trust but which most nearly approximated the intention of the donor. See, Women’s Homoeopathic Hospital, supra; Kay Estate, supra.

We also note that, “[cjharities are favorites of the law and a gift, even for a specific charitable purpose, should be liberally construed whenever reasonably possible,” In re Pruner’s Estate, supra, 400 Pa. at 634, 162 A.2d 626. We therefore endorse the Orphan’s court liberal construction of the Settlor’s intent to benefit her favorite charities, although the gift was specifically made to the Taylor Church.

Furthermore, in conformance with the meaning of the doctrine of cy pres, which mandates that when a definite benefit can not be performed in exact conformity to the scheme of the person or persons who have provided for it, it must be performed with as close approximation to that scheme as reasonably practicable, Will of Porter, supra, 301 Pa.Super. at 303-304, 447 A.2d 977, citing, City of Philadelphia v. Heirs of Stephen Girard, 45 Pa. 9, 28 (1863), we find that the decree of the Orphan’s Court equally dividing the Taylor Church’s share of the residual estate among the five other residual beneficiaries, approximates the testator’s express intention as nearly as possible and does no violence to it. Therefore, in the absence of any information concerning the Moses Taylor Memorial Church, Appellant has not met its burden of showing that the court has abused its discretion or committed an error of law, and we affirm the court’s application of the doctrine of cy pres.

Order is affirmed.


author: WIEAND, Judge:

text:
    602 A.2d 1348
    VOLUNTEER FIRE COMPANY OF NEW BUFFALO v. HILLTOP OIL COMPANY and Paul Clark and Beth V. Clark. Appeal of Paul CLARK and Beth V. Clark.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Filed Feb. 6, 1992.

      Daniel W. Stern, Harrisburg, for appellant.

      Barbara A. Reynolds, Camp Hill, for appellee Volunteer Fire Co.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   WIEAND, Judge:

In this appeal, we are asked to decide the effectiveness of a corrective deed intended by the grantor to reduce the amount of land conveyed to the grantee by an earlier deed. Subsequent grantees of the grantor contend that the lawyer who prepared the corrective deed was also the attorney for the grantee and had authority to consent to and accept the corrective deed on behalf of said grantee. The trial court, in this equity action, found that the lawyer did not have authority to consent to or accept the corrective deed on behalf of the grantee and that the corrective deed, signed only by the grantor, was ineffective to reduce the quantity of land previously conveyed. Post-trial motions were denied, and this appeal followed. After careful review, we affirm.

By deed dated August 20, 1977, and duly recorded, Hilltop Oil Company (Hilltop) conveyed to Volunteer Fire Company of New Buffalo (the fire company) a tract of land containing 1.31 acres in Watts Township, Perry County. The fire company thereafter caused a building to be constructed on the land to house firefighting equipment and also a social hall. In December, 1980, a representative of Hilltop reported to officers of the fire company that an error had been made in the description contained in the 1977 deed. Thereafter, Hilltop employed C. Joseph Rehkamp, Esquire, who had represented the fire company at the earlier closing, to prepare and record a corrective deed. Rehkamp prepared such a deed, which was executed by the grantor and duly recorded. This deed purported to move the southern property line fifty (50) feet to the north and reduce the amount of acreage to 1.07 acres. Rehkamp was paid fifty ($50.00) dollars by Hilltop for his services. On the same day, Hilltop conveyed the “recovered” tract of .24 acres to Republic Development Corporation (Republic), which, in 1985, conveyed it as part of a larger tract to Paul and Beth Clark. The disputed tract of .24 acres, it was later discovered by survey, lay only eight (8) feet from the front of the fire company’s building.

The fire company then commenced an action against Hilltop for the purpose of having the corrective deed declared a nullity. Also named as defendants were the Clarks, who joined as additional defendants and filed claims against Hilltop and their immediate grantor, Republic. The trial court, after trial without jury, found that Rehkamp was not the legal representative of the fire company and did not have authority to bind the fire company to accept a smaller tract of land. Therefore, the court sustained the fire company’s cause of action, decreeing that the corrective deed was a nullity and that the fire company was the fee simple owner of the disputed .24 acres.

Our limited scope of review was articulated in Palmer v. Soloe, 411 Pa.Super. 444,-, 601 A.2d 1250, 1252 (1992) as follows:

[O]n appeal we are bound by the chancellor’s findings of fact, particularly if approved by the court en banc, to the same extent as we would be bound by the factual determinations of a jury. The test in either case is whether the findings are adequately supported by the record. The chancellor’s findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated, because he has had the opportunity to hear them and to observe their demeanor on the stand. Charles v. Henry, 460 Pa. 673, 334 A.2d 289 (1975).
Stauffer v. Stauffer, 465 Pa. 558, 567, 351 A.2d 236, 240 (1976); accord Weir v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989) (at bench trial, it is trial court’s duty to judge credibility and weigh testimony and its findings will not be disturbed absent error of law or abuse of discretion); Fuisz v. Fuisz, 386 Pa.Super. 591, 563 A.2d 540 (1989) (appellate courts are constrained by a narrow standard of review in equity matters and are bound by the trial court’s determination pertaining to the credibility of the witnesses and the weight to be accorded the evidence). Thus, appellate review in these matters is limited to a determination of whether there was an error of law, and the trial court’s conclusions will not be disturbed unless they are not supported by the evidence. Hostetter v. Hoover, 378 Pa.Super. 1, 547 A.2d 1247 (1988).

Id., 411 Pa.Superior Ct. at —, 601 A.2d at 1252. The Clarks, who are the appellants in this case, challenge the trial court’s finding that Rehkamp did not have authority to accept the corrective deed on behalf of the fire company.

Agency “cannot be assumed from the mere fact that one does an act for another.” Bross v. Varner, 159 Pa.Super. 495, 497, 48 A.2d 880, 881 (1946). Whether an agency relationship exists is a question of fact. Bolus v. United Penn Bank, 363 Pa.Super. 247, 259, 525 A.2d 1215, 1221 (1987), allocatur denied, 518 Pa. 627, 541 A.2d 1138 (1988). The party asserting an agency relationship has the burden of proving it by a fair preponderance of the evidence. Apex Financial Corp. v. Decker, 245 Pa.Super. 439, 443, 369 A.2d 483, 485 (1976). Agency is created where there exists a “manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.” Scott v. Purcell, 264 Pa.Super. 354, 363, 399 A.2d 1088, 1093 (1979) citing Restatement (Second) of Agency, § 1(1) (1958) (Comment). Before a factfinder can conclude that an agency relationship exists and that the principal is bound by a particular act of the agent, the factfinder must determine that one of the following exists:

1) express authority directly granted by the principal to bind the principal as to certain matters; or
2) implied authority to bind the principal to those acts of the agent that are necessary, proper and usual in the exercise of the agent’s express authority; or
3) apparent authority, i.e. authority that the principal has by words or conduct held the alleged agent out as having; or
4) authority that the principal is estopped to deny. Bolus v. United Penn Bank, supra at 260, 525 A.2d at 1221.

Appellants contend that an agency existed and that Rehkamp had express authority to act on behalf of the fire company. Their contention is based on entries in the fire company's minutes of monthly meetings held prior to and after execution of the corrective deed. An entry in the minutes of a meeting on February 11, 1980, indicates that a member “will have the DA [Rehkamp] contact the trustees to straighten out problem with the deed”. On June 9,1980, the minutes indicated: “discussion about the deed took place. No motions made. Will be resolved”. On August 11, 1980, an entry was made which stated: “attorney needs written statements from company to handle deed matters. Motion by [member], sec. by [member]- allow attorney to get settled deed discrepencies [sic]. Letter to be sent to Solicitor Joseph Rehkamp”. An entry on September 8,1980 indicated: “letter to Rehcamp [sic].” Finally, after the corrective deed had been executed in December of 1980, a February 9,1981 entry contained the statement: “land deed all squared away.” Furthermore, according to appellants, Rehkamp’s acknowledged practice of representing both grantors and grantees in real estate transactions lends credence to their position that he was representing both Hilltop and the fire company at the time when the corrective deed was executed and recorded. Although this evidence would have supported a finding that Rehkamp was the lawyer for the fire company at the time of the corrective deed, there was evidence to the contrary.

The function of a reviewing court is to determine whether the findings of the trial court are supported by competent evidence. In holding that appellants failed to sustain its burden of proving express authority to accept a corrective deed, the trial court accepted Rehkamp’s testimony that he had been retained by Hilltop and was acting solely on its behalf when he prepared and recorded the corrective deed. His testimony was supported by a letter from Hilltop’s manager in which Rehkamp was requested to perform this service. The evidence was that Rehkamp had been paid a fee only by Hilltop. Rehkamp testified that he had performed no legal services for the fire company after July, 1978. Members of the fire company, some of whom were officers at the time of recording the corrective deed, testified that they had no knowledge of the corrective deed until after appellants had purchased their land from Republic and began using the disputed strip of land. They recalled no one authorizing Rehkamp to accept or record on the fire company’s behalf a deed conveying a smaller tract than that which had been conveyed by the 1977 deed. At no place in the record is there evidence that representatives of the fire company knew and understood either the need for or the effect of the corrective deed. Even the fire company’s minutes do not disclose that it consented to a relinquishment of .24 acres already owned.

In view of the totality of the evidence, we are unable to conclude that the trial court’s findings are unsupported by competent evidence or represent a capricious disregard of evidence favoring appellants. In view of the trial court’s finding and the evidence supporting the same, we find it unnecessary to consider and decide the effect of the deed if Rehkamp had been burdened by a conflict of interest bom of an attempt to represent the conflicting interests of both grantor and grantee. Similarly, we find it unnecessary to determine the effect, if any, of the Statute of Frauds upon Rehkamp’s alleged authority to enter a transaction pursuant to which the fire company effected a reconveyance of a portion of its real estate holdings.

Appellants argue that even if Rehkamp lacked express authority to bind the fire company, he nevertheless had apparent authority to act on its behalf. This argument is misplaced. “Apparent authority exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe that the principal has granted the agent the authority he or she purports to exercise.” Joyner v. Harleysville Ins. Co., 393 Pa.Super. 386, 392, 574 A.2d 664, 667 (1990). Therefore, in determining the apparent authority of an agent, the court must look to the actions of the principal, not the agent. Bolus v. United Penn Bank, supra at 261, 525 A.2d at 1222. “An agent cannot, simply by his own words, invest himself with apparent authority. Such authority emanates from the action of the principal and not the agent.” Turnway Corporation v. Soffer, 461 Pa. 447, 458, 336 A.2d 871, 876 (1975) quoting Jennings v. Pittsburgh Mercantile Co., 414 Pa. 641, 645, 202 A.2d 51, 54 (1964). Thus, we are not here concerned with Hilltop’s beliefs in relation to the deed transaction. Rather, the issue is whether the fire company held Rehkamp out as having apparent authority to relinquish title to real estate owned by the fire company. Although the fire company’s minutes refer to a letter to Rehkamp regarding the deed issue, that letter was not produced. Therefore, it does not appear that the fire company held Rehkamp out as having authority on its behalf to convey or relinquish title to a portion of its real estate. On the contrary, the trial court found that the fire company was unaware of the nature of Rehkamp’s activity, and this finding is also supported by competent evidence. In the absence of such knowledge, the record does not support appellants’ argument that Rehkamp had apparent authority to alter the nature of the original conveyance. He did not acquire apparent authority by signing the certification of the grantees’ address as attorney for the grantee. Such a representation emanated from the agent and not the principal.

Appellants also argue that by retaining the recorded corrective deed for a period of five years without objection, the fire company ratified the corrective transaction. However,

[t]he question of ratification could not arise in the absence of proof that the [principal] had full knowledge of all the material facts and circumstances attending the transaction intended to be ratified, for the doctrine presupposes knowledge of such facts. “Ratification implies knowledge of the material facts, and to be effective must be made by persons having the power to perform the act which is the subject of ratification.”

Schwartz v. Mahoning Valley Country Club, 382 Pa. 138, 142, 114 A.2d 78, 80 (1955) quoting Sword v. Reformed Congregation Keneseth Israel, 29 Pa.Super. 626, 630 (1905) (emphasis added). Absent knowledge on the part of the fire company regarding the nature and effect of the corrective deed, it could not effectively ratify the deed. See also: Solomon v. Cedar Acres East, Inc., 455 Pa. 496, 317 A.2d 283 (1974); McRoberts v. Phelps, 391 Pa. 591, 138 A.2d 439 (1958); DeSilvio v. Restauire, 264 Pa.Super. 528, 400 A.2d 211 (1979). In view of the trial court’s finding that such knowledge was lacking, we are constrained to accept also its legal conclusion that the fire company did not ratify the corrective deed.

Appellants were not innocent purchasers of the fifty foot strip containing .24 acres of land. In order to qualify as a bona fide purchaser for value, an innocent purchaser must take with “neither actual nor constructive knowledge of claims of a third party____” Lund v. Heinrich, 410 Pa. 341, 346, 189 A.2d 581, 584 (1963). Constructive knowledge means “what they could have learned by inquiry of the person in possession and of others who, they had reason to believe, knew of facts which might affect the title, and also by what appeared in the appropriate indexes in the office of the recorder of deeds____” Id., 410 Pa. at 348, 189 A.2d at 585. The chain of appellants’ title, as it appeared in the office of the recorder of deeds, revealed that a tract of 1.31 acres had been conveyed to the fire company by deed in 1977. No part of that tract was ever reconveyed to the original grantor by the fire company. Although a deed purporting to be a corrective deed was recorded in 1980, the record fails to reflect that the fire company, the grantee in the 1977 deed, ever consented to accept the new deed for a smaller tract in lieu of the earlier conveyance of the larger tract. The tract acquired by the fire company as a result of the 1977 conveyance could not be surrendered or reconveyed to the grantor except by deed, in writing, signed by the party surrendering or granting the same. Act of March 1772, § 1, 33 P.S. § 1. Because the chain of title contained a gap, there being no recorded deed surrendering or reconveying a part of the fire company’s lands, appellants had constructive notice of a defect in the title which they were about to take. When they nevertheless accepted title without perfecting the chain of their grantor’s title, they did so at their peril.

The dispute between appellants and the fire company was attributable directly to Rehkamp’s mishandling of Hilltop’s effort to regain title to a portion of the tract previously conveyed to the fire company. He should have known that the original grantor could not regain title to a portion of a tract already conveyed merely by having the grantor sign and record a new deed conveying a smaller tract of land. The defective title caused by his efforts should have been apparent to anyone who examined carefully the deeds recorded in the office of the recorder of deeds. Appellants are chargeable with this knowledge. The trial court found that the fire company had not been aware of that which Rehkamp was attempting to accomplish and had not authorized him to relinquish land which it already owned. Under these circumstances, as between appellants and the appellee-fire company, both of whom claimed title to the same .24 acres of land, the title of the appellee-fire company was superior.

Affirmed.

      . These claims were ultimately settled and are not involved in the present appeal.