text:
    479 A.2d 1077
    COMMONWEALTH of Pennsylvania v. David DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 14, 1984.
    Filed Aug. 10, 1984.

      Brian J. Cali, Scranton, for appellant.
    Amil M. Minora, Assistant District Attorney, Scranton, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

David Davis entered a general plea of guilty to murder in connection with the shooting death of his wife, Margaret. After an evidentiary hearing before the Honorable James Munley, Davis was found guilty of murder in the first degree. Post-verdict motions were denied, and Davis was sentenced to serve a term of imprisonment for life. He contends that the evidence was insufficient to sustain the court’s finding of murder in the first degree. We disagree and affirm.

To prove murder in the first degree, the Commonwealth was required to show that appellant shot his wife willfully, deliberately and with premeditation, i.e., with a fully formed, specific intent to kill. Commonwealth v. Weinstein, 499 Pa. 106, 115, 451 A.2d 1344, 1348 (1982). See: Commonwealth v. Moore, 473 Pa. 169, 172-173, 373 A.2d 1101, 1103 (1977). This intent may be inferred from statements made by the accused and also from attendant circumstances. An inference that appellant intended to kill may be drawn from the fact that he used a deadly weapon to inflict injury to a vital part of his victim’s body. Commonwealth v. Rodgers, 500 Pa. 405, 409, 456 A.2d 1352, 1354 (1983); Commonwealth v. Green, 493 Pa. 409, 414-415, 426 A.2d 614, 616-617 (1981). In reviewing the sufficiency of the evidence to support a finding of murder in the first degree, we view all the evidence admitted and all reasonable inferences to be drawn therefrom in the light most favorable to the Commonwealth. Then we determine whether the evidence, so viewed, is sufficient to permit a finding beyond a reasonable doubt that each element of first degree murder was present. Commonwealth v. Russell, 313 Pa.Super. 534, 538, 460 A.2d 316, 318 (1983).

In the instant case appellant admitted that he had shot his wife during the early morning hours of June 9, 1980. He and his wife had been married for four years; one child had been born of their marriage. The marriage was marked by several separations which frequently involved violent conduct by appellant; but all prior separations had eventually been followed by reconciliation. A final separation occurred in April, 1980, when Margaret took the child of the marriage and a son by a prior marriage and moved into an apartment in the City of Scranton. Four days prior to Margaret’s death, appellant told her former husband, Michael Frazier, that if Margaret didn’t come back and quit running away, he was going to “waste her.” On the same day, appellant told his wife’s aunt, Mary Holodnak, that Margaret had left him again and had taken their daughter, Allison, and that he would blow his wife’s head off to get Allison back. After these threats had become known to Margaret and her parents, they asked a family friend, John Ritter, to look after Margaret. On the night preceding the shooting and at Margaret’s request, Ritter slept in the same apartment. A loaded revolver was placed between the mattress and the bed spring of Margaret’s bed. Ritter slept on the floor.

At or about 4:00 a.m. on June 9, appellant broke through the bedroom window, grabbed Margaret and, with a knife at her throat, said “Margaret, I’m going to slice your throat.” Ritter, awakened by these events, retrieved the gun and, pointing it at appellant, said to him, “Leave her alone or I will blow you away.” Margaret broke away and ran as Ritter and the appellant engaged in a struggle for the gun. One shot was fired before Ritter was rendered unconscious because of blows administered by appellant. Appellant then pursued his wife who had run from the apartment. He paused on the porch to take aim and fire at the running figure of his wife. Then he resumed his pursuit, following her between parked cars and firing a second shot. When he finally caught her as she returned to the apartment door, he asked her to go away with him, and she replied, “O.K.” However, she again managed to break away, and once more she ran. Again appellant caught her. This time he placed the revolver, a .44 magnum, against her throat and pulled the trigger.

In Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007 (1980), the Supreme Court held that a specific intent to kill could be inferred from shooting the decedent twice at close range, once in the neck. In the instant case, appellant’s act of holding the gun against his wife’s neck and firing was sufficient, without more, to sustain the trial court’s finding of an intentional killing. However, there was a great deal more. Appellant’s prior threats to kill his wife, his breaking into her bedroom during the early hours of the morning, his threat to cut her throat as he held a knife against her neck, and the several shots fired at her after she had fled the. apartment constituted additional circumstances lending credence to the trial court’s finding.

Appellant argues that a deliberate and intentional killing cannot be inferred because he did not have a gun when he entered his wife’s apartment and did not thereafter have the opportunity to form a deliberate and premeditated intent to kill. This is wholly without merit. An intent to kill can be formed in a fraction of a second. Commonwealth v. O’Searo, 466 Pa. 224, 239-240, 352 A.2d 30, 37-38 (1976). All that is required is a conscious, fully formed intent to bring about the death of another. Id. Moreover, appellant’s argument ignores the fact that the knife with which he broke into his wife’s apartment in the middle of the night was also a deadly weapon and bespeaks the purpose for which he came.

Appellant argues that a finding of murder in the first degree was improper because he had a diminished mental capacity. This argument also lacks merit. Diminished capacity is an extremely limited defense. Commonwealth v. Zettlemoyer, 500 Pa. 16, 28, 454 A.2d 937, 943 (1982). Personality disorders such as a diagnosed schizoid personality are irrelevant. Id., 500 Pa. at 28-30, 454 A.2d at 943-944. In the absence of a mental disorder which affects the cognitive functions of deliberation and premeditation so as to preclude an ability to formulate and carry out a plan or design, the defense will not avail to reduce the degree of a killing. Id., 500 Pa. at 28, 454 A.2d at 943. See also: Commonwealth v. Weinstein, 499 Pa. 106, 113-114, 118-119, 451 A.2d 1344, 1347, 1350 (1982).

The testimony of experts called by the defense was to the effect that appellant had been experiencing a schizophrenic episode at the time of the shooting which caused him to act in desperation to repossess his wife and survive psychologically. The weight to be given this testimony, of course, was for the trier of the facts. The trial judge could reject appellant’s psychiatric testimony or give it such weight and credibility as, in his judgment, it deserved. Commonwealth v. Tempest, 496 Pa. 436, 441, 437 A.2d 952, 954-955 (1981); Commonwealth v. Walzack, 468 Pa. 210, 219 n. 9, 360 A.2d 914, 918 n. 9 (1976). In fact, appellant’s psychiatric testimony was contradicted, and other evidence showed that appellant had been in control of his actions. This had been observed by several witnesses after appellant surrendered himself to police who were at the scene to investigate the shooting. The testimony given by these lay witnesses could properly be considered by the trial judge. Commonwealth v. Tempest, supra 496 Pa. at 440, 437 A.2d at 954; Commonwealth v. Tyson, 485 Pa. 344, 352-353, 402 A.2d 995, 999 (1979); Commonwealth v. Flynn, 314 Pa.Super. 162, 171-172, 460 A.2d 816, 821 (1983). The trial court determined the credibility issue in favor of the Commonwealth and concluded that appellant had been mentally capable of forming a specific intent to kill his wife and possessed cognitive control of his actions. Our review of the record discloses full evidentiary support for the trial court’s finding.

Affirmed.


source: Caselaw Access Project

author: WIEAND, Judge: CIRILLO, Judge,

license: Public Domain

text:
    479 A.2d 1081
    COMMONWEALTH of Pennsylvania, Appellant, v. Walter T. SMITH, Appellee.
    Superior Court of Pennsylvania.
    Argued March 15, 1984.
    Filed Aug. 10, 1984.
    Petition for Allowance of Appeal Granted Jan. 22, 1985.

      Laurence M. Kelly, District Attorney, Montrose, for Commonwealth, appellant.
    Robert A. Mazzoni, Scranton, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Where darkness, residual heat and dripping water make it difficult, if not impossible, to investigate the cause of a residential fire on the same night that the fire has been extinguished, may a fire marshall return the following morning and continue his investigation without a search warrant? The trial court held that he could not reenter the fire-damaged building without a warrant and, therefore, suppressed evidence obtained by the fire marshall which tended to show that the fire had been of incendiary origin. The Commonwealth appealed. We reverse.

On the evening of June 28, 1982, a residence owned by Walter T. Smith and Cherry Lee Smith, husband and wife, in Great Bend, Susquehanna County, was found afire. Raymond Cobb, a member of the Pennsylvania State Police who also served as fire marshall in Susquehanna County, arrived at the fire while the home was still ablaze. He was told by the local fire chief that the origin of the fire seemed suspicious and was requested to determine the cause of the fire. After the fire had been extinguished at or about 9:30 p.m., Cobb found that he was unable to enter the premises and conduct an investigation because of residual heat and dripping water. Cobb told Mrs. Smith that he would come back to make his investigation at a later time. He returned the following morning at or about 9:00 a.m., when he entered to investigate and determine the cause of the fire. He did not then have a search warrant; he also did not have the owner’s consent to enter the fire-damaged building. Nevertheless, he removed floor samples and took photographs of the interior and exterior of the building. The owner of the building, Walter T. Smith, was subsequently arrested and charged with arson. He moved to suppress evidence on grounds that Cobb had obtained the same as a result of an unlawful search. The trial court agreed, and suppressed all evidence thus obtained except photographs of the exterior of the building.

Initially, we observe that the Commonwealth has a clear right of appeal from the suppression order. The record supports its contention that the suppression of the evidence obtained by Cobb will substantially handicap it in its prosecution of Smith for arson. See: Commonwealth v. Markman, 320 Pa.Super. 304, 308 n. 1, 467 A.2d 336, 338 n. 1 (1983), citing Commonwealth v. Lapia, 311 Pa.Super. 264, 277, 457 A.2d 877, 884 (1983).

“The primary aim of the Fourth Amendment is to protect people from unreasonable intrusions of legitimate expectations of privacy.” Commonwealth v. Tann, 500 Pa. 593, 598-599, 459 A.2d 322, 325 (1983). Accord: Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977); Commonwealth v. Vernille, 275 Pa.Super. 263, 272, 418 A.2d 713, 718 (1980). See: Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). As a general rule, with but few exceptions, warrantless searches are unreasonable. See: Payton v. New York, 445 U.S. 573, 586-587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980); Commonwealth v. Silo, 480 Pa. 15, 20, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Hartford, 313 Pa.Super. 213, 217, 459 A.2d 815, 817 (1983); Commonwealth v. Vernille, supra 275 Pa.Super. at 272, 418 A.2d at 718. See also: Commonwealth v. Westerfer, 294 Pa.Super. 459, 462, 440 A.2d 556, 558 (1982). If reasonable privacy expectations remain in fire-damaged property, “the warrant requirement applies, and any official entry must be made pursuant to a warrant in the absence of consent or exigent circumstances.” Michigan v. Clifford, 464 U.S. 287, —, 104 S.Ct. 641, 646, 78 L.Ed.2d 477, 483 (1984). Where the owner of the building consents to an official entry to investigate the cause of the fire, there is no longer any need for a search warrant, for reasonable expectations of privacy, if any, have been waived. Commonwealth v. Markman, supra. “A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze.” Michigan v. Clifford, supra at —, 104 S.Ct. at 646, 78 L.Ed.2d at 483. Once in the building, officials need no warrant to remain for a “reasonable time to investigate the cause of a blaze after it has been extinguished.” Michigan v. Tyler, 436 U.S. 499, 510, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486, 499 (1978) (footnote omitted).

“The constitutionality of warrantless and nonconsensual entries onto fire-damaged premises ... normally turns on several factors: whether there are legitimate privacy interests in the fire damaged property that are protected by the Fourth Amendment; whether exigent circumstances justify the government intrusion regardless of any reasonable expectations of privacy; and, whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity.” Michigan v. Clifford, supra — U.S. at —, 104 S.Ct. at 646, 78 L.Ed.2d at 483. The validity of warrantless, nonconsensual entries by law enforcement officials — including fire personnel — has uniformly been upheld “when there is compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, supra 436 U.S. at 509, 98 S.Ct. at 1949, 56 L.Ed.2d at 498 (citing cases). See: United States v. Velasquez, 626 F.2d 314 (3rd Cir.1980); United States v. Moskow, 588 F.2d 882 (3rd Cir.1978); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983); Commonwealth v. Henkel, 306 Pa.Super. 346, 452 A.2d 759 (1982).

In Michigan v. Tyler, supra, the defendants argued that the exigency created by the blaze had terminated upon the suppression of the fire. Under this theory, a warrant would have been necessary for all searches occurring after containment of the fire. The Supreme Court of the United States disagreed. It found that the defendants’ view of the fire-fighting function was “unrealistically narrow.” The Court said:

Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.
The respondents argue, however, that the Michigan Supreme Court was correct in holding that the departure by the fire officials from Tyler’s Auction at 4 a.m. ended any license they might have had to conduct a warrantless search. Hence, they say that even if the firemen might have been entitled to remain in the building without a warrant to investigate the cause of the fire, their departure and re-entry four hours later that morning required a warrant.
On the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22. As the fire was being extinguished, Chief See and his assistants began their investigation, but visibility was severely hindered by darkness, steam, and smoke. Thus they departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continu ation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.

Id. 436 U.S. at 510-511, 98 S.Ct. at 1950-1951, 56 L.Ed.2d at 498-499 (emphasis added) (footnote omitted).

The narrow issue in the instant case is whether the exigent circumstances existing at the time of the fire continued to exist when Trooper Cobb returned to the structure at 9:00 a.m., after the fire had been extinguished on the prior evening, so as to permit him to enter reasonably without a warrant to determine the cause of the fire. We hold that Cobb’s re-entry was a continuation of his prior, necessary entry.

In Tyler, the fire officials had been at the scene of the fire when it was suppressed at or about 4:00 a.m. After entering the building briefly, they had departed and left the building unattended. They returned at or about 8:00 a.m. to make a cursory examination. They left once again and returned in an hour to take samples of the flooring which had not been visible when they were first on the scene because of heat, steam and darkness. The circumstances of the case sub judice are similar. Trooper Cobb testified without contradiction that he had not entered the building after the fire was extinguished because of heat and dripping water. It may also be observed that his examination of the interior of the building at 9:30 p.m. would have been hampered greatly by darkness. Therefore, Cobb returned the following morning to conduct his investigation as to the origin of the fire. Although Cobb returned at a slightly later hour of the morning than the fire chief in Tyler, this difference is factually and legally insignificant. His return on the morning after the fire had been doused, was a continuation of the right to enter lawfully in order to investigate the cause of the fire.

The result which we reach is not precluded by the decision in Michigan v. Clifford, supra. In that case, the property owners secured their damaged residence after the fire had been extinguished, and personal belongings remained in the home. Arson investigators, who had not been present during the fire, arrived at 1:00 p.m. on the following afternoon and effected a warrantless, nonconsensual entry and search. In view of the fact that the premises had theretofore been secured, the Supreme Court concluded that there were no exigent circumstances requiring entry without a warrant. In the instant case, Cobb had been present at the time of the fire; and, because of darkness, residual heat and water, he was unable to make an immediate investigation regarding the cause of the fire. The fire-damaged premises had not been secured. Cobb’s investigation, therefore, could be continued on the following morning. He could do so without first acquiring a warrant based on probable cause to believe that the owner had intentionally set the fire.

Reversed and remanded for trial. Jurisdiction is not retained.

CIRILLO, J., filed a dissenting opinion.

CIRILLO, Judge,

dissenting:

I dissent. The primary object of Officer Cobb’s warrant-less search was to gather evidence of criminal activity, not to determine the cause and origin of the recent fire. Therefore, a warrant was required showing probable cause to search the appellees’ premises. Since the appellees did not give their consent to the warrantless search, and there were no exigent circumstances involved, the appellees’ fourth amendment rights were violated, and the evidence obtained must be suppressed.

Exigent circumstances exist when fire officials enter a home to fight a fire. Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). After the fire is extinguished fire officials may remain inside the premises for a reasonable period of time to investigate its cause and origin. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1982). Such investigations constitute a continuation of the first legal warrantless entry, and do not violate the fourth amendment to the Constitution since a compelling public interest is served in determining the cause and origin of fires. Tyler, 436 U.S. at 509, 98 S.Ct. at 1951, 56 L.Ed.2d at 498.

However, if the primary object of a warrantless search is not to determine a fire’s cause, but to gather evidence of criminal activity, a continuation does not exist and it is necessary to obtain a criminal search warrant demonstrating probable cause to believe that relevant evidence will be found in the place to be searched. Clifford, 464 U.S. at —, 104 S.Ct. at 649, 78 L.Ed.2d at 484.

Did Officer Cobb enter the appellees’ burned premises to determine the cause and origin of the fire, thereby justifying a warrantless entry of the appellees’ home, or did he gain entrance to gather evidence of criminal activity, thereby triggering the appellees’ fourth amendment rights?

I believe the facts show that Officer Cobb entered the appellees’ home to gather evidence of criminal activity. At the suppression hearing under cross-examination, Officer Cobb testified that the fire chief told him that the fire was suspicious in origin. S.T. 11. The fire chief thought the fire suspicious because the electricity had been turned off. Id. at 12. Cobb further stated that the term “suspicious in origin” usually referred to an arson fire. Id. Cobb himself suspected arson. Id. at 13. Cobb’s testimony supports the inference that he entered the appellees’ home to search for evidence of arson.

More than twelve hours elapsed from the time the firemen extinguished the blaze to the time when Officer Cobb conducted his warrantless search. Cobb could have easily obtained a warrant from a magistrate on the way to the appellees’ premises. In fact, Cobb testified that he travelled right past the magistrate’s office on his way to make the warrantless search.

Since Officer Cobb’s search was conducted without a valid warrant, without the consent of the appellees, and without the exigent circumstances necessary to support a warrantless search, it was invalid under the fourth and fourteenth amendments. Any evidence obtained as a result of this entry must, therefore, be excluded at the appellees’ trial.

The majority’s holding to the contrary allows fire officials to circumvent the warrant requirement by making every investigation into criminal activity at the scene of a fire an investigation of the cause and origin of the fire. The Supreme Court in Tyler and Clifford did not intend to further erode the warrant requirement of the Constitution in the manner accomplished by the holding of the majority in the present case.

I would affirm the suppression order of the trial court.

      . The opinion announcing the judgment of the Court was written by Justice Powell. He was joined by Justices Brennan, White and Marshall. Justice Stevens wrote a concurring opinion. The dissenting opinion written by Justice Rehnquist was joined by Chief Justice Burger and by Justices Blackmun and O’Connor.

      . In Pennsylvania, state police fire officials are charged by statute with responsibility for "investigat[ing] the origin or circumstances of any fire occurring in this Commonwealth.” Act of April 27, 1927, P.L. 450, No. 291, §§ 2, 4, as amended, 35 P.S. §§ 1182, 1184. See: Commonwealth v. Simkins, 297 Pa.Super. 258, 265, 443 A.2d 825, 828-829 (1982).

      . Cobb's uncontradicted testimony was that he returned to the scene of the fire at or about 9:00 a.m. There is no support in the record for the finding made by the suppression court and echoed in appellee’s arguments that Cobb returned at or about 10:00 a.m. Cobb stated only that the flooring samples had been taken at about 10:00 a.m., an hour after his arrival.

      . Although the lower interior of the structure had been extensively damaged, the exterior of the home and the upstairs rooms were largely undamaged by the fire.


author: McEWEN, Judge:

text:
    479 A.2d 1086
    COMMONWEALTH of Pennsylvania v. Thomas Edward KLIMKOWICZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 18, 1984.
    Filed Aug. 10, 1984.

      Edward T. Rowe, Jr., Lower Burrell, for appellant.
    George R. Kepple, District Attorney, Kittanning, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   McEWEN, Judge:

Appellant, Thomas Edward Klimkowicz, was convicted of burglary and receiving stolen goods following a jury trial. After his motions for a new trial and in arrest of judgment were dismissed, he was sentenced to a term of imprisonment of three to ten years. We affirm.

Appellant has undertaken this appeal from the judgment of sentence and asserts (a) that the Commonwealth did not present sufficient evidence to sustain the convictions; (b) that a new trial should have been granted because of after-discovered evidence; (c) that the lower court erred in refusing to suppress certain evidence seized pursuant to the search warrant because the information from the informant was stale; and (d) that the lower court erred in refusing to suppress certain evidence seized pursuant to the search warrant because the affidavit of probable cause consisted of hearsay upon hearsay.

Initially, we will review appellant’s claims concerning the sufficiency of the search warrant. Appellant asserts that the search warrant was invalid because the information received from the informant constituted double hearsay. To determine whether an informer’s tip establishes probable cause for the issuance of a search warrant, the United States Supreme Court has adopted a “totality of the circumstances” approach. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Gates decision indicated that the “totality of the circumstances” standard is flexible and not hypertechnical. The issuing magistrate must consider “all of the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of the persons supplying hearsay information.” Gates, 103 S.Ct. at 2332. In reviewing the magistrate’s determination, it is the duty of this Court to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.

In the instant case, the affiant police officer averred that there was sufficient probable cause to issue the search warrant based on the following facts and circumstances set forth in the affidavit:

Sometime between July 15th and July 31st, David Opalka was at the informant’s residence and told the informant that he and Thomas Edward Klimkowicz had ‘hit’ the residences of Richard Walker, Kevin Kronen, and Joseph Patrick. This was after the informant had told Opalka that he and Klimkowicz were suspected by the State Police of these burglaries, along with a burglary at Jamesway. A few days later, also at the informant’s residence, David Opalka and Thomas Edward Klimkowicz told the informant that they still had the guns that they had stolen from the Walker, Kronen, and Patrick residences, and that they were keeping them at Klimkowicz’s trailer, located at Rosenberger Road, Valley Township, Armstrong County. Opalka and Klimkowicz stated at this time that they were going to keep the guns there because the were too ‘hot’ to sell.
Richard Walker, Kevin Kronen, and Joseph Patrick have reported to the state police that their residences had been burglarized, and that guns had been stolen in each incident.

The police officer averred that the informant was reliable based upon the following facts set forth in the affidavit:

On August 4th, the informant stated to the affiant that David Opalka came to the informant’s residence between July 29th and August 1st, 1981 with a “safe.” At that time, Opalka told the informant that he had stolen the “safe” from the residence above a bar in New Bethlehem. Opalka gave the informant a Bulova watch and a pair of earrings from the “safe”, which the informant later turned over to the Pennsylvania State Police. This watch and earrings were subsequently identified by William Miller as part of his belongings which were stolen from his apartment above Diddy’s Bar at 413 Broad Street, New Bethlehem on July 29th.
The informant also stated that she had been told by Opalka that he had pawned the other items in the ‘safe’ in Pittsburgh. Pawn shop detail, Pittsburgh Police Department, was contacted, who located the pawn shop which Opalka had frequented about this time. New Bethlehem police took William Miller to this shop, where he identified the items pawned by Opalka as having been stolen from him on July 29th.

Based on this affidavit, the magistrate found sufficient probable cause to issue the warrant.

It is well settled that an affidavit may be based on hearsay and need not reflect direct personal observation of the affiant. Commonwealth v. Greco, 465 Pa. 401, 350 A.2d 826 (1976); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980). This Court has noted that the danger in issuing an affidavit based upon hearsay is the fact that there may exist no basis for the police to assess the reliability of the initial source of the information. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). In this case, the information contained in the affidavit was supported by police investigation of the pawn shop as well as by the detailed information concerning the burglaries which had been confirmed by the victims of those burglaries. The police were, therefore, able to properly assess the reliability of the initial source of information. The magistrate found the informant to be reliable and the information in the affidavit sufficient to establish the probable cause necessary to issue the warrant. We agree with the lower court that the search warrant was validly issued.

Appellant also contends that the search warrant was invalid because the information contained in the affidavit was stale and, therefore, the lower court erred when it refused to suppress evidence seized pursuant to the warrant. This Court set forth guidelines upon this issue in Commonwealth v. Jones, 229 Pa.Super. 224, 323 A.2d 879 (1974). The issuing magistrate must consider the nature and quantity of items to be seized, the time lapse involved, and the ease with which the items may be disposed. The validity of any search warrant must be determined on a case-by-case basis considering the unique circumstances of each case. In the case at bar, the items to be seized were assorted firearms and other items stolen during a burglary on June 29, 1981. On August 4, 1981, the informant relayed information to the police concerning the appellant’s behavior during the period from July 15 to July 31, 1981. The informant specifically stated that appellant intended to keep the guns because they were too “hot” to sell. The search warrant was obtained and executed on August 10, 1981.

In this case, five weeks had elapsed between the commission of the crime and the execution of the warrant, but the number of days does not determine the validity of the warrant. “Mere passage of time is itself not sufficient to determine the question of staleness.” Commonwealth v. David, 299 Pa.Super. 285, 288, 445 A.2d 757, 758 (1982). See also Commonwealth v. Suppa, 223 Pa.Super. 513, 302 A.2d 357 (1973). The Jones court emphasized the nature of the items and their intended purpose and found that the search warrant was valid even though the information contained in the affidavit in Jones was three weeks old. Applying the guidelines set forth in Jones to the factual circumstances of this case, there is nothing to indicate that the information contained in the affidavit was stale. Reasonableness is the applicable standard for determining the time limits to be placed on a search warrant. Considering the “hot” nature of the items and the difficulty of disposing of such items, it was not unreasonable for the magistrate to believe that the items described could still be found at appellant’s home. Under the circumstances of this case, we cannot say that the issuance of the warrant was based upon impermissibly stale information.

Appellant also argues that the evidence was insufficient to support the burglary and receiving stolen goods convictions. When reviewing a challenge to the sufficiency of the evidence, we must accept as true all of the evidence upon which the finder of fact could properly have reached its verdict and give the Commonwealth the benefit of all reasonable inferences arising from the evidence. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Tribble, 502 Pa. 619, 467 A.2d 1130 (1983); Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983). Although the Commonwealth must prove every essential element of a crime beyond a reasonable doubt, it may sustain its burden of proof wholly by means of circumstantial evidence. Commonwealth v. Brosko, 243 Pa.Super. 312, 365 A.2d 867 (1976).

The evidence presented at trial established that appellant had been a patron in the German Beneficial Union (GBU) just prior to the burglary of the club and witnessed the proprietor of the GBU conduct an inventory of the items in the bar. Appellant and the proprietor subsequently argued and appellant stated to Ms. Miller that he would “burn her.” A police officer saw appellant within fifty feet of the scene of the burglary within several hours of the time that the burglary took place. Pursuant to a search warrant, the police seized several items from appellant’s home that were identified as stolen from the GBU a few days earlier.

As the distinguished President Judge Roy A. House, Jr. noted in his able opinion, the stolen items were not packaged in the form that one would ordinarily expect to find in a personal residence and were not generally available in retail stores. The quantity and nature of the goods discovered at appellant’s home, moreover, supported the jury’s conclusion that appellant knew they were stolen and had participated in the theft. The stolen items, alcohol, guns and loose bags of snacks were not items easily sold. See Commonwealth v. Owens, 441 Pa. 318, 271 A.2d 230 (1970); Commonwealth v. Brosko, supra.

Considering the record as a whole and giving the Commonwealth the benefit of all reasonable inferences arising from the evidence, we reject the claim that the evidence was insufficient to support his conviction.

The final issue raised by appellant is his contention that his motion for new trial based on after-discovered evidence was improperly denied by the trial judge. After-discovered evidence may serve as a basis for a new trial only when four criteria are present, namely, the evidence must (1) have been discovered after trial; (2) not merely be corroborative or cumulative; (3) not be used solely to impeach credibility; and (4) be of such nature and character that a different verdict would likely result, if presented at a new trial. Commonwealth v. Hugney, 491 Pa. 222, 229, 420 A.2d 422, 426 (1980); Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786, 788 (1971).

The after-discovered evidence here submitted consists of a statement made by a witness after the close of testimony. Sally Miller, a witness for the Commonwealth, identified, in her direct testimony, a photograph of liquor bottles as depicting items that were stolen from the German Beneficial Union. Later, another witness heard Ms. Miller remark that some of the liquor bottles she had identified as stolen did not actually come from the GBU.

The liquor bottles were among several items stolen from the GBU and positively identified by Ms. Miller. The identification was corroborated by testimony from Police Officer Fuksa who stated that Miller made an immediate, unhesitating identification of the recovered items. Although there was a large quantity of liquor stolen, the identification could be considered cumulative evidence. Miller’s out-of-court statement merely casts doubt on the reliability of her identification of the liquor bottles in the photograph; and thus, would affect only her credibility as a witness. After-discovered evidence will not form the basis for a new trial if it merely impeaches the credibility of a witness. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) citing Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71 (1941). Miller’s statement is not evidence of such nature and character that a different verdict would likely result, if presented at a new trial. It is not for this court to interfere with the grant or denial of a new trial where the sole ground is the alleged recantation of a state witness unless there has been a clear abuse of discretion. See Commonwealth v. Gaddy, 492 Pa. 434, 424 A.2d 1268 (1981); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979). In the light of the evidence introduced at trial, we find no error in Judge House’s finding that a different verdict would not have resulted had the after-discovered evidence been introduced.

We affirm the decision of the trial court.

      . This Court has discussed the Gates "totality of circumstances” approach in Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984); Commonwealth v. Ensminger, 325 Pa.Super. 326, 473 A.2d 116 (1984); Commonwealth v. Rosario, 320 Pa.Super. 215, 467 A.2d 5 (1983) and Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983).

      . Appellant’s motion in arrest of judgment stating that the evidence was insufficient to support the verdict was filed prior to this court’s decision in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983), and, therefore, appellate review of appellant's "boiler plate” post-verdict motion is available.

      . There is no dispute that the first criterion of the after-discovered evidence test has been met.


author: HOFFMAN, Judge:

text:
    480 A.2d 254
    COMMONWEALTH of Pennsylvania v. Gregory BULLING, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 18, 1983.
    Filed June 29, 1984.

      Ronald Segal, Philadelphia, for appellant.
    Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, ROWLEY, and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges: (1) the four extensions of the Rule 1100 rúndate; (2) the sufficiency of the evidence; (3) the lower court’s denial of his suppression motion; and (4) the lower court’s decision to allow a Commonwealth witness to testify as an expert. Because we find all of appellant’s claims meritless, we affirm the lower court’s judgment of sentence.

On December 13, 1979, appellant was arrested and charged with possession with intent to deliver and delivery of a controlled substance and conspiracy, after police observed appellant receive two credit cards in exchange for a small plastic packet later found to contain heroin. A preliminary hearing was originally scheduled for December 24, 1979, however, on that date the first in a long series of delays occurred which were to characterize the procedural history of this case. Eventually, on June 3, 1981 a hearing was held on appellant’s motion to suppress evidence, namely, the credit cards and packet of heroin. Immediately following the hearing, and the denial of appellant’s suppression motion, a non-jury trial commenced. At the conclusion of trial, appellant was found guilty on all charges. Post-verdict motions were timely filed and denied. On November 5, 1981 appellant was sentenced to two concurrent prison terms of three-to-twenty-three months. This appeal followed.

Appellant alleges that the time for trial was improperly extended, pursuant to Pa.R.Crim.P. 1100(c), on four separate occasions. However, before turning to the four Rule 1100 extensions in the present case, we must first consider some of the principles applicable to Rule 1100 extensions in general. Under Rule 1100(c), the Commonwealth may be granted an extension of time for trial if a court finds that trial cannot be commenced within the prescribed period despite the exercise of due diligence by the Commonwealth. Pa.R.Crim.P. 1100(c); Commonwealth v. Sharp, 287 Pa.Superior Ct. 314, 430 A.2d 302 (1981). But, the Commonwealth bears the burden of showing, by a preponderance of the evidence, that it has acted with due diligence, and has thereby complied with the mandate of Rule 1100(c). Commonwealth v. Ehredt, 255 Pa.Superior Ct. 84, 386 A.2d 147 (1978); Commonwealth v. Jenkins, 248 Pa.Superior Ct. 300, 375 A.2d 107 (1977). When we review a lower court’s ruling, relative to whether the Commonwealth has met its burden of proving due diligence, we only consider the evidence presented at the hearing by the Commonwealth and so much of the evidence presented by the defendant which remains uncontradicted. Commonwealth v. Sharp, supra; Commonwealth v. Sinor, 264 Pa.Superior Ct. 178, 399 A.2d 724 (1979). In summarizing the relevant procedural history of the instant case, we note that a criminal complaint was filed against appellant on December 13, 1979, making the original Rule 1100 rúndate June 10, 1980. However, pursuant to four Commonwealth extension petitions, the time for trial was successively extended to August 25, 1980; January 20, 1981; March 24, 1981; and June 4, 1981. On June 3, 1981, appellant was tried and found guilty on all charges.

With the foregoing facts and principles in mind, we shall now address appellant’s challenge to each of the four extensions seriatim:

I. The Extension from June 10, 1980 to August 25, 1980

On June 3, 1980, a Commonwealth extension petition was timely filed pursuant to Rule 1100(c). A hearing on this petition was held before the Honorable Ned L. Hirsh on June 26, at which time Judge Hirsh granted the petition and extended the time for trial until August 25, 1980. Although the record does not contain a transcript of the June 26 extension hearing, we are able to conclude that the Commonwealth’s first extension petition was properly granted. This Court has previously held that the Commonwealth need not prove that it acted with due diligence on prior trial or hearing dates for which a Rule 1100 extension was not sought. Commonwealth v. Tann, 298 Pa.Superior Ct. 505, 444 A.2d 1297 (1982); Commonwealth v. Sharp, supra. Rather, the relevant inquiry at the extension hearing is whether the Commonwealth demonstrated due diligence at the last listing before the rúndate at which it was unable to bring appellant to trial. Commonwealth v. Tann, supra; Commonwealth v. Sharp, supra. Here, the final listing prior to the original June 10, 1980 rúndate was May 13, 1980. On that date, a preliminary hearing was held at which the Commonwealth established a prima facie case against appellant. Following the preliminary hearing, appellant filed a motion to quash return of the transcript. See Pa.R.Crim.P. 306, 307. It would be unreasonable and unrealistic to expect that this motion could have been litigated and appellant brought to trial after the May 13 preliminary hearing, but before the June 10 rúndate. Indeed, it was not until July 3, 1980, that appellant’s motion to quash return of the transcript was denied. Therefore, we must agree with the Commonwealth that, while it was unable to try appellant by the original rúndate, it diligently advanced toward trial by timely establishing a prima facie case at the preliminary hearing. Accordingly, we find that the Commonwealth exercised due diligence prior to June 10, 1980, and that its first extension petition was, therefore, properly granted.

Subsequent to the granting of the Commonwealth’s first extension petition, appellant executed two written waivers of the Rule 1100 rúndate. See Pa.R.Crim.P. 1100(d)(2). The first waiver, executed on August 12, 1980, extended the time for trial to September 17, 1980; the second one was executed on September 17, and extended the trial deadline to November 22, 1980.

II. The Extension from November 22, 1980 to January 20, 1981

On November 21, 1980, the Commonwealth timely filed its second extension petition. The Honorable Ethan Allen Doty presided at an evidentiary hearing on this petition on December 30, 1980. In considering whether the Commonwealth had exercised due diligence, Judge Doty effectively took judicial notice of the uncontested notation of a prior hearing judge who, on November 18, 1980 (the last trial listing before the November 22 rúndate), certified “Arresting officer ill.” (N.T. December 30, 1980 at 6). Based upon this uncontested notation, Judge Doty apparently found that the Commonwealth’s diligent efforts to try appellant prior to the rúndate were thwarted by circumstances beyond the Commonwealth’s control. See Commonwealth v. Tann, supra (where unavailability of Commonwealth witness was beyond Commonwealth’s control, it was reversible error not to grant Commonwealth’s extension petition); accord, Commonwealth v. Sharp, supra. Accordingly, Judge Doty granted the Commonwealth’s extension petition and extended the Rule 1100 rúndate to January 20, 1981. Thus, in deciding whether the grant of the Commonwealth’s second extension petition was proper, the question we must address is: may a court effectively take judicial notice of uncontested notations in the court record in determining whether the Commonwealth has exercised due diligence in accordance with Rule 1100(c)? We believe that this Court’s recent decisions in Commonwealth v. Harris, 315 Pa.Superior Ct. 544, 462 A.2d 725 (1983) and Commonwealth v. Bright, 303 Pa.Superior Ct. 98, 449 A.2d 596 (1982), have resolved the issue. In Harris, the defendant’s trial date was listed nine days beyond the Rule 1100 rúndate, due largely to the unavailability of criminal courtrooms and the recusal of the first two judges to whom the case had been assigned. Consequently, the Commonwealth timely filed a petition for a Rule 1100 extension. In response thereto, the defendant petitioned to dismiss the charges under Rule 1100(f). Following a hearing, the lower court extended the Rule 1100 rúndate. The granting of this extension was based almost exclusively on the lower court’s decision to take, in effect, judicial notice of the uncontested notations in the court record which revealed the reasons for the delay. The lower court in Harris concluded, based on the uncontested notations in the record, that the Commonwealth had exercised due diligence in attempting to bring the accused to trial. However, these uncontested notations were accepted as true by the lower court when it impliedly took judicial notice of same. A review of the transcript of the extension hearing in Harris discloses the following exchange:

THE COURT: .1 have 2-6 normal run date of 8-6. .Commonwealth petition filed 7-17. Timely filed.
.2-13 to 2-22, voluntary defender unprepared. Less than 30 days.
.Not chargeable, 4-19 5-30, wrong defendant brought down.
.5-30 — 7-13, motion to suppress denied. Judge Cipriani recused himself.
.7-13 — 8-15, Judge Shiomos recused himself had defendant previously on a jury trial.
.It would appear that there are three court continuances and one defense continuance. No Commonwealth continuance, as far as I can ascertain from this record.
[PUBLIC DEFENDER]: .Your Honor, our indication for July 13, is that Judge Shiomos recused himself upon the advice of the district attorney who advised him that he had had the defendant prior.
THE COURT: Well, nevertheless, it was Judge Shiomos’ decision. It wasn’t a Commonwealth continuance, it was Judge Shiomos who continued it.
[ASSISTANT DISTRICT ATTORNEY]: .We were ready on call.
[PUBLIC DEFENDER]: .We also moved in this case to relist the case.
THE COURT: .Well, again, that would be the court’s fault.
.Based on the entire record I will find due diligence. The listing is now 8-15. We will make it August 17.

(.Harris, N.T. August 2, 1979 at 2-3). The statement: “Based on the entire record I will find due diligence,” was interpreted by our Court to mean that the lower court had taken judicial notice of the notations in the record and thereby found that the Commonwealth had exercised due diligence. Therefore, while acknowledging that “mere assertions of due diligence and unproven facts do not establish cause for an extension under Rule 1100(c),” Commonwealth v. Harris, supra 315 Pa.Superior Ct. at 551, 462 A.2d at 729, quoting Commonwealth v. Antonuccio, 257 Pa.Superior Ct. 535, 536, 390 A.2d 1366, 1367 (1978), the Harris Court held that, “[A] hearing court may properly take judicial notice of uncontested notations in the court record in deciding ... whether the Commonwealth exercised due diligence in attempting to bring an accused to trial____” Commonwealth v. Harris, supra 315 Pa.Superior Ct. at 551, 462 A.2d at 729.

Similarly, in Commonwealth v. Bright, supra, the issue before our Court was whether a hearing judge could properly receive and consider uncontested notations appearing in the court record. Bright, like the instant case, involved a Rule 1100 extension hearing at which the defendant “offered no evidence at the hearing, and the Commonwealth only offered into evidence the record containing the notations made by the trial judge at the two previous listings of the case for trial.” Id. 303 Pa.Superior Ct. at 101, 449 A.2d at 598. The notations in the record indicated that at one previous listing the complainant was on vacation, and at the other prior listing the arresting officer was on vacation. In holding that the notations in the record provided an adequate foundation for the decision of the hearing judge to extend the Rule 1100 rúndate, the Bright Court observed that the use of notations in court records at Rule 1100 hearings had repeatedly been approved; see Commonwealth v. Postell, 280 Pa.Superior Ct. 550, 552, 421 A.2d 1069, 1070 (1980); Commonwealth v. Gibson, 248 Pa.Superior Ct. 348, 351-52 n. 5, 375 A.2d 132, 133 n. 5 (1977); Commonwealth v. Kollock, 246 Pa.Superior Ct. 16, 20 n. 5, 369 A.2d 787, 789 n. 5 (1977); see also Commonwealth v. Jackson, 269 Pa.Superior Ct. 249, 253-54, 409 A.2d 873, 875 (1979).

As in Harris and Bright, the hearing judge’s decision in the present case, granting the Commonwealth’s extension petition, was attributable solely to the fact that he accepted as true the uncontested notation of a prior hearing judge who certified, “Arresting officer ill.” (N.T. December 30, 1980 at 6). With regard to the alleged illness of the arresting officer on November 18, 1980, the hearing judge specifically stated, “The Court further finds as a fact that according to the certification of the trial judge, the arresting officer was ill on November 18 and the matter was continued to January 19, 1981.” (N.T. December 30, 1980). Accordingly, the court at the second extension hearing concluded that the Commonwealth had “exercised due diligence in this matter.” (N.T. December 30, 1980 at 9).

Therefore, in light of this Court’s decision in Harris and Bright, and other cases cited above, we hold the grant of the second Commonwealth extension proper.

III. The Extension from January 20, 1981 to March 24, 1981

On January 19, 1981, the final listing before the January 20 rúndate, a Commonwealth witness was ill. Consequently, on the following day, the Commonwealth timely filed its third extension petition. At an evidentiary hearing on February 13, 1981, before the Honorable John J. McDevitt, the Commonwealth’s petition was granted and the run-date was extended to March 24, 1981. It is well settled that the illness of a Commonwealth witness may be a proper basis upon which to grant a Rule 1100 extension as the Commonwealth should not be penalized for events and circumstances which are wholly beyond its control. Commonwealth v. Reihart, 302 Pa.Superior Ct. 515, 449 A.2d 35 (1982); Commonwealth v. Thompson, 292 Pa.Superior Ct. Superior Ct. 108, 436 A.2d 1028 (1981); Commonwealth v. Brown, 252 Pa.Superior Ct. 365, 381 A.2d 961 (1977). Here, although appellant moved to dismiss the charges on January 26, 1981, pursuant to Rule 1100(f), the record reveals, and appellant does not dispute, that the Commonwealth was unable to proceed at the January 19 listing because of the illness of one of its witnesses. Accordingly, we hold that the undisputed illness of a Commonwealth witness provided a legitimate basis for granting the Commonwealth’s third extension petition.

IV. The Extension from March 24, 1981 to June 3,1981

On March 24, 1981, the Commonwealth timely filed its fourth petition for a Rule 1100 extension. A hearing was scheduled for April 16, 1981, before the Honorable Ned L. Hirsh. Although Judge Hirsh granted the Commonwealth’s petition and extended the rúndate to June 4, 1981, we find that appellant has waived his right to challenge the granting of this fourth extension petition. It is well established that the failure of an accused to file a written motion to dismiss under Rule 1100(f) or orally move to dismiss at the extension hearing in question “constitutes a waiver of the Accused’s right to a speedy trial under Rule 1100”. Commonwealth v. Goldwire, 279 Pa.Superior Ct. 451, 455, 421 A.2d 286, 288. With regard to the March 24 to June 3 period, appellant neither filed a motion to dismiss pursuant to Rule 1100(f) nor orally contested the petition at the April 16 extension hearing. (N.T. April 16, 1981 at 2-4). Accordingly, appellant’s claim that the Commonwealth’s fourth extension petition was improperly granted has been waived.

Appellant contends further that the evidence was insufficient to support his convictions.

The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); see Commonwealth v. Ransome, 485 Pa. 490, 493, 402 A.2d 1379, 1381 (1979). Specifically, with regard to proof of a conspiracy, we note that under 18 Pa.C.S.A. § 903 criminal conspiracy is defined, in pertinent part, as follows:

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(I) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime;

Thus,

The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished____ The crime by its very nature is frequently not susceptible of proof except by circumstantial evidence____ A conspiracy may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.

Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 414, 416 A.2d 523, 524 (1979) (citations omitted), quoting Com monwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958).

With the foregoing principles in mind, we review the instant facts: on December 13, 1979, at approximately 6:15 p.m., Police Officer Robert Murdoch of the Philadelphia Highway Patrol and his partner observed appellant and two other men engaged in conversation on the corner of Franklin and Clearfield Streets in Philadelphia. Although it was dark and the officers were about 40 feet from appellant, their view was unobstructed and there was adequate lighting from street lamps. As the uniformed officers approached in their unmarked patrol car, one of the men walked away while appellant and the other man continued talking. Officer Murdoch then saw appellant exchange a small plastic packet for two credit cards given to him by the other man. At the time he witnessed the transaction, Officer Murdoch suspected that it involved the sale of illegal drugs; his suspicion was based on the fact that he had made more than 75 drug arrests and many of those had involved the possession or dispensation of illegal drugs in small plastic packets similar to the one used in the present case. Immediately following the transaction, the officers exited their car and walked toward the two men. As the officers approached, appellant and the other man quickly parted company and dropped the items in question. Upon finding the credit cards on the ground near appellant’s feet and the plastic packet, containing a white substance, at the feet of appellant’s cohort, both men were arrested. At trial the Commonwealth presented Officer Frederick Perkins, a chemical laboratory technician with 14 years practical experience, for the purpose of establishing the contents of the plastic packet. Although Officer Perkins testified that, although the results of the first kind of test he performed left open the possibility that the white substance was actually aspirin, his four other tests conclusively showed the substance to be heroin. Therefore based on the above facts, we hold that the evidence was sufficient to sustain appellant’s convictions for possession with intent to deliver and delivery of a controlled substance and conspiracy.

However, appellant also seeks to attack his conspiracy conviction on the basis of Wharton’s Rule which holds that “An agreement between two persons to commit a crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require [sic] the participation of two persons for its commission.” 1 R. Anderson, Wharton’s Criminal Law & Procedure § 89, p. 191 (1957). See Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). But as we pointed out in Commonwealth v. Bucci, 283 Pa.Superior Ct. 125, 127, 423 A.2d 747, 748 (1980), the rule is not to be “regarded as blackletter law,” instead, it is to be viewed “merely as a presumption of law, to be applied in the absence of legislative intent to the contrary.” Significantly, Pennsylvania courts, have never chosen to follow Wharton’s Rule for the reason that:

[O]ur courts have considered that a partnership in crime presents a greater potential threat to the public than individual behavior.
Classic cases for application of Wharton’s Rule were adultery, incest, bigamy and dueling — crimes where the parties to the agreement are the only persons who participate in the commission of the substantive offense and the immediate consequences of the crime rest on the parties themselves rather than on society at large. Thus the agreement in those cases does not appear likely to pose the threats to society that the law of conspiracy seeks to avert.

Id., 283 Pa.Superior Ct. at 127-128, 423 A.2d at 748-749. Moreover, Wharton’s Rule is only applicable to situations where the substantive offense(s) which the accused conspired to commit, requires concerted criminal conduct. Here, appellant was charged and convicted of not only delivery of a controlled substance, but also possession with intent to deliver. Plainly, this latter crime is capable of being committed by a lone individual. See United States v. Rueter, 536 F.2d 296, 298 (9th Cir.1976) (because crime of possession with intent to deliver is “frequently committed by single person ... Wharton’s Rule has no bearing.”); United States v. Bommarito, 524 F.2d 140, 144 (2d Cir. 1975) (“agreements to distribute narcotics obviously involve grave dangers to persons who are not parties to the substantive offense, rendering inapplicable the rationale underlying Wharton’s Rule.”). Accordingly, we reject appellant’s contention.

Next, we must address the issue of whether appellant has standing to challenge the admission of the heroin and the credit cards into evidence. Following the suppression hearing, the lower court found that appellant lacked standing to challenge the admission of this evidence because he had relinquished his expectation of privacy in both the heroin and credit cards prior to his arrest. However, appellant argues that he can: (1) attack the seizure of the heroin under the doctrine of “derivative standing,” see United States v. Westerbann-Martinez, 435 F.Supp. 690 (E.D.N.Y.1977); and (2) attack the seizure of the credit cards because he was forced to abandon them by unlawful police activity and coercion. We disagree. In WesterbannMartinez, the two defendants were stopped by drug enforcement agents at an airport where a search of one of the defendant’s suitcases uncovered a packet of heroin. The court found that the other defendant had standing to challenge the search on the grounds that: (1) he was present at the time of the search; (2) both defendants were “seized” simultaneously; and (3) the arresting agent viewed the two defendants “as a unit.” However, whereas the defendant in Westerbann-Martinez had not abandoned the seized property prior to his arrest, here, appellant’s cohort had done just that. Clearly, an individual has no standing to assert his companion’s Fourth Amendment rights where, as here, the companion himself would not have standing to challenge the seizure of the abandoned property. See Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976). Furthermore, by selling the heroin, appellant voluntarily relinquished his possessory interest therein, thereby extinguishing his right to object to its seizure. See Commonwealth v. Donnelly, 233 Pa.Superior 396, 406, 336 A.2d 632, 637 (1975). Accordingly, we find that appellant lacks standing to challenge the seizure of the heroin.

Insofar as appellant’s abandonment of the credit cards is concerned, we recognize that physical evidence must be suppressed if its abandonment was coerced by unlawful police action. Commonwealth v. Richardson, supra; Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Shoatz, supra; Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973); Commonwealth v. Williams, 269 Pa.Superior Ct. 544, 410 A.2d 835 (1979); Commonwealth v. Duncan, 257 Pa.Superior Ct. 277, 390 A.2d 820 (1978); Commonwealth v. Horsley, 244 Pa.Superior Ct. 91, 366 A.2d 930 (1976). However, one does not have standing to attack a seizure of property that he has voluntarily abandoned. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Commonwealth v. Metzger, 295 Pa.Superior Ct. 267, 441 A.2d 1225 (1981); Commonwealth v. Shoatz, supra; Commonwealth v. Richardson, supra; Commonwealth v. Williams, supra; Commonwealth v. Duncan, supra; Commonwealth v. Horsley, supra. Thus,

Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts.... All relevant circumstances existing at the time of the alleged abandonment should be considered____ Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary____ The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search____

Commonwealth v. Shoatz, supra 469 Pa. at 553, 366 A.2d at 1220 quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (en banc) (citations omitted); see Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978); Commonwealth v. Metzger, supra. Here, there was no evidence of any coercive or unlawful police action. Rather, Officer Murdoch testified that after he saw the exchange between appellant and the other man, he and his partner parked their car and started walking toward the two men. At that point, without being chased or ordered to halt by the police, appellant and his cohort simply dropped the items in question and began walking in opposite directions. Therefore, we find that appellant voluntarily abandoned the credit cards. See Commonwealth v. Hall, supra (defendant’s dropping of heroin packets constituted voluntary abandonment where abandonment occurred after the “plain-clothes officers merely double-parked the unmarked automobile and approached [defendant]”); Commonwealth v. Williams, supra (no forced abandonment where defendant dropped stolen property upon seeing police); Commonwealth v. Horsley, supra (abandonment not forced where defendant spontaneously dropped bag of heroin when he sighted police approaching). Accordingly, we hold that appellant lacks standing to contest the seizure of the credit cards.

Appellant asserts also that the lower court erred in denying his suppression motion on the ground that the police lacked probable cause to arrest him. “Probable cause exists where there are facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information sufficient in themselves to warrant a man of reasonable caution to believe that the suspect had committed a crime.” Commonwealth v. Wise, 298 Pa.Superior Ct. 485, 489, 444 A.2d 1287, 1289 (1982). However, it is important to note that, “The standard of probable cause ... must be applied to the totality of the circumstances facing the police. Facts insufficient to justify an arrest if considered separately may in combination supply probable cause.” Commonwealth v. Kazior, 269 Pa.Superior Ct. 518, 523, 410 A.2d 822, 824 (1979). Therefore,

When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might____ Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial.

Commonwealth v. Simmons, 295 Pa.Superior Ct. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Devlin, 221 Pa.Superior Ct. 175, 178, 289 A.2d 237, 239 (1972) (emphasis in original). See Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973) (probable cause to arrest where police observed individuals give money to appellant’s husband, saw appellant remove a small item from her bosom and hand it to her husband who in turn transferred it to the waiting individuals, and where appellant fled toward ladies’ room of nearby bar when police approached); Commonwealth v. Horlsey, supra (where police officer twice saw defendant take small metallic object from a paper bag and exchange it for money, where defendant dropped paper bag when he saw police approaching, and where police opened bag and discovered several tinfoil packets containing white powder, police had probable cause to arrest); Commonwealth v. McGlory, 226 Pa.Superior Ct. 493, 313 A.2d 326 (1973) (police noticed appellant receive money in exchange for articles in vials and cigarette packs and, as they approached, one of the “buyers” fled while appellant frantically tried to empty contents of a vial; police had probable cause to arrest). Based on our foregoing recitation of the instant facts, we find that the police had probable cause to arrest appellant.

Lastly, appellant contends that it was error for the lower court to permit Officer Frederick Perkins to testify as an expert regarding the nature of the white substance contained in the plastic packet. Specifically, appellant claims that the fact that Officer Perkins does not have a degree in chemistry and had only taken elementary chemistry courses in college makes him unqualified to testify as an expert in the field of chemical analysis. The issue of a witness’ qualification to render an expert opinion rests in the sound discretion of the trial judge, whose decision thereon will not be reversed absent a clear abuse of that discretion. Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978). In Commonwealth v. Daniels, 280 Pa.Superior Ct. 278, 421 A.2d 721 (1980), the defendant apparently challenged the expert qualifications of the same Officer Perkins to testify concerning the identification of heroin. In rejecting the defendant’s argument, this Court commented that, “An expert may be qualified in several different ways. An expert may acquire his knowledge through occupational, practical, or other experimental training. He is not required to acquire his expertise through academic training.” Id., 280 Pa.Superior Ct. at 287, 421 A.2d at 726 (emphasis added). As previously noted, at the time of trial, Officer Perkins had 14 years of practical experience as a police chemical laboratory technician. His experience included the identification of controlled substances for nearly two years, and the performance of more than 10,000 tests of suspected controlled substances. In addition, he had lectured and trained new technicians in the field of chemical research. Accordingly, we find that the lower court did not abuse its discretion by permitting Officer Perkins to testify as an expert.

Having found appellant’s numerous contentions to be without merit, we affirm the lower court’s judgment of sentence.

Affirmed.

      . Despite appellant’s conviction, the lower court refused to increase the amount of appellant's $500 bail. Consequently, appellant remains free on bail pending resolution of this appeal.

      . Our repeated attempts to obtain a copy of this transcript from the Clerk of Court of Philadelphia County were unsuccessful. Thus, we are forced to conclude that this transcript cannot be produced.

      . We note that there were six continuances prior to the May 13 preliminary hearing: two were joint continuances, one was caused by the unavailability of defense counsel, two were the result of Commonwealth witnesses failing to appear, and one was caused by the Commonwealth’s need for a drug analysis.

      . Pa.R.Crim.P. 1100 provides, in pertinent part, as follows:
      (d) In determining the period for commencement of trial, there shall be excluded therefrom:
      (2) any period of time for which the defendant expressly waives
      Rule 1100[.]
      Here, because appellant effectively waived the Rule 1100 rúndate from August 12 to November 22, 1980, the Commonwealth's November 21, 1980 extension petition was timely filed.

      . The numbers to which the court refers are references to months and days. For example, “2-6” should be read as February 6.

      . The only listing after February 13, 1981 (when the third Commonwealth extension was granted), and before the March 24, 1981 run-date, was March 23. On that date, appellant failed to appear for trial and a bench warrant was issued. Clearly, the unavailability of appellant is not chargeable to the Commonwealth. See Pa.R.Crim.P. 1100(d)(3)(i). Subsequently, on March 30, 1981, appellant waived Rule 1100 to June 3, 1981.

      . We have repeatedly disapproved of the “practice of some courts of delaying consideration of a timely Rule 1100(c) petition until after the period has run.” Commonwealth v. Mancuso, 247 Pa.Superior Ct. 245, 250 n. 3, 372 A.2d 444, 446 n. 3 (1977); see Commonwealth v. Ray, 240 Pa.Superior Ct. 33, 360 A.2d 925 (1976). As we commented in Mancuso, “The risk is obvious: if the court denied the extension after the period has run, the Commonwealth is prevented from bringing the accused to trial. If the petition is denied promptly, the Commonwealth may nonetheless be able to try the accused within the period.” Commonwealth v. Mancuso, supra, 247 Pa.Superior Ct. at 250 n. 3, 372 A.2d at 446 n. 3. Presently, all four evidentiary hearings on the Commonwealth’s extension petitions were held after the Rule 1100 period in question had run. However, because the four extension petitions, although timely filed, were not filed until the end of the various Rule 1100 periods, and because we hold that the four extensions were properly granted, the instant delays are excusable.

      . Unlike appellant, we do not find it significant that Officer Murdoch had never previously witnessed a drug transaction in which credit cards were used.

      . Neither of these two credit cards belonged to appellant or his cohort, and a subsequent investigation revealed them to have been stolen. However, the receiving stolen property charge against appellant was nol prossed prior to his arraignment.

      . Contrary to the Commonwealth’s assertion, we find that appellant’s allegations in his written post-trial motions, that the evidence was insufficient to support his conspiracy conviction and that his conspiracy conviction was contrary to law, were sufficient to preserve his “Wharton’s Rule” issue.

      . In Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), the defendant was part-owner of an amusement arcade; he was arrested and charged with, inter alia, receiving stolen property after police, pursuant to a search warrant, uncovered stolen firearms in an area of the arcade which was equally accessible to all employees. Prior to trial, the defendant moved to suppress the fruits of the search on the ground that the search warrant was defective. The trial court found that the defendant had “automatic standing” to assert the illegality of the search and, upon determining that the warrant was indeed defective, suppressed the seized property. But the Superior Court disagreed, and held that the defendant lacked standing to challenge the validity of the warrant because he “did not entertain a reasonable expectation of privacy in either the premises searched ... or in the specific area where the stolen firearms were discovered.” Common

        wealth v. Sell, 288 Pa.Superior Ct. 371, 381, 432 A.2d 206, 212 (1981). Following a grant of allocatur, our Supreme Court rejected the notion that one must have a "legitimate expectation of privacy” in the area searched or the items seized before one has standing to challenge the constitutionality of the search and/or seizure. Contra Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (defendant had no legitimate expectation of privacy in his companion’s purse which was searched and, thus, did not have standing to challenge the legality of the search, even though he claimed a possessor interest in the items seized); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) (property ownership is only one factor to be considered in determining whether a person’s Fourth Amendment rights have been violated relative to a search and seizure; for purposes of standing, the defendant’s own Fourth Amendment rights must actually have been abridged); accord Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Rather, the Sell Court held that the defendant had "automatic standing” to contest the admissibility of the items in question because "ownership or possession of the seized property is adequate to entitle the owner or possessor thereof to invoke the constitutional protection of Article I, section 8 [of the Pennsylvania Constitution] by way of a motion to suppress its use as evidence.” Commonwealth v. Sell, supra — Pa. at —, 470 A.2d at 469. However, the Supreme Court’s holding in Sell, while providing broader protection of individual rights under Article I, section 8 of the Pennsylvania Constitution than currently exists under the analogous Fourth Amendment of the Federal Constitution, does not aid appellant in the instant case. Whereas the defendant in Sell never relinquished his right of ownership, possession, or control in the seized property, here, appellant either sold or voluntarily abandoned the items in question prior to their seizure. As the Sell Court pointed out, “[Personal possessions remain constitutionally protected under Article I, section 8 until their owner meaningfully abdicates his control, ownership or possessory interest therein.” Id. (emphasis added).