author: POPOVICH, Judge: TAMILIA, Judge,

text:
    479 A.2d 491
    COMMONWEALTH of Pennsylvania, Appellant, v. James G. MONARCH.
    Superior Court of Pennsylvania.
    Submitted Jan. 24, 1984.
    Filed June 1, 1984.
    Reargument Denied Aug. 14, 1984.
    Petition for Allowance of Appeal Granted Feb. 27, 1985.

      William G. Martin, Jr., Assistant District Attorney, Franklin, for Commonwealth, appellant.
    Oliver J. Lobaugh, Seneca, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Venango County (per President Judge William E. Breene) granting appellee’s, James G. Monarch’s, Motion for a New Trial. We reverse.

At the outset, it requires mentioning that the Commonwealth assails the propriety of the post-trial motion judge’s ruling, which is, in essence, a reversal of his earlier decision denying counsel’s motion to suppress evidence — a viewing by the police of appellee’s alleged intoxicated condition — secured during the effectuation of a warrantless arrest of the appellee for driving while intoxicated. 75 Pa.C.S.A. § 3731. Therefore, inasmuch as the issue posed concerns a pure question of law, the matter is properly before us. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977); Commonwealth v. Holderman, 284 Pa.Super. 161, 425 A.2d 752 (1981); Commonwealth v. Baldwin, 253 Pa. Super. 1, 384 A.2d 945 (1978).

Our review in this area “is limited to ascertaining whether the lower court abused its discretion or committed an error of law.” (Citations omitted) Commonwealth v. White, 482 Pa. 197, 199, 393 A.2d 447, 449 (1978). In doing so, we will “analyze [ ] all the facts and cireumstances[.]” Commonwealth v. Coley, 466 Pa. 53, 65, 351 A.2d 617, 623 (1976).

In compliance with the aforesaid, we start by examining the evidence adduced at the October 5, 1982 suppression hearing; to-wit: At 8:04 on the 5th of March, 1982, Borough of Sugarcreek Patrolman Hoover and Captain Baker received a radio bulletin of a hit-and-run accident on Front Street. Within 11 minutes the police had arrived on the scene. Captain Baker began questioning the owner (a Barry Shaw) of the damaged vehicle, while Patrolman Hoover made his way to a second vehicle, situated about 50 yards down the road, with its 4-way flashers operating. He was met by a Mr. Charles Keas, who was standing near the vehicle owned by a Mr. Seigworth and later determined not to be involved in the accident. The patrolman recalled:

Mr. Keas advised me at that time, he pointed and he said, “That’s the vehicle there that hit the car,” and he then told me, “His name is Monarch,” .... (RR. 13A)

More particularly, Mr. Keas, having heard the accident and seeing “Monarch get out of his vehicle, f[a]ll down and [then go] into the house” at 162 Front Street (RR. 21A), was pointing specifically at the vehicle parked at the aforecited address.

As the patrolman made his way down the driveway, he observed a blue Toyota “with fresh damage ... on the passenger side of the rear door. The paint was still chipped and metal was still shining underneath.” (RR. 14A) Mr. Shaw’s vehicle was struck in the left rear and all along the same side. (RR. 26A) Then, Patrolman Hoover was approached by Mrs. Monarch, who had seen him from inside of the house and came out to ask if there was any problem. The patrolman told Mrs. Monarch that her husband had been involved in a hit-and-run accident and that he wanted to speak with him. Mrs. Monarch responded that she had given her husband a sedative and that he was “in bed sleeping ... because he was shook up about the accident ____” (RR. 14A) Nonetheless, the patrolman stated he “wanted to speak to her husband and she said, ‘O.K.’ ” (RR. 22A) Moreover, on this question of consent, defense counsel engaged in the following exchange with the patrolman; viz.:

Q Did she tell you to come into the house?
A Yes, sir.
Q What did she say?
A She said, “O.K., come on,” and we began walking up the driveway onto the front porch. (RR. 22A)

As soon as the patrolman entered the hallway, he observed Mr. Monarch, at a distance of approximately 3 feet:

... leaning against the wall because he was unable to stand ereck. [sic] His clothes were disarranged, there was a strong odor of alcohol about his person. His eyes were bloodshot and he had slurred speech. (RR. 15A)

Immediately thereafter, Mr. Monarch was advised of his Miranda rights and that he was under arrest for driving under the influence of alcohol. At this point, appellee requested if he could use the phone and if the patrolman would step outside during the call. The patrolman complied. By this time, Captain Baker had arrived. When Mrs. Monarch asked if one of the officers would speak to the party on the other end of the line, Baker did so. Following the conversation, the police were asked again to step outside while a second call was made. The officers agreed. However, after the officers observed the appellee retrieve a beer from their vantage point on the porch, Patrolman Hoover walked back into the hallway and removed the beer from appellee’s hand because he “didn’t want it to interfer [sic] with the breathalizer test.” (RR. 18A)

With the conclusion of the phone conversation, appellee was transported to the police station and informed of the consequences if he refused to take the breathalizer test. Appellee refused and, thereafter, was driven back to his residence.

Captain Baker corroborated the patrolman’s accounting regarding appellee’s intoxication. (RR. 28A) As for Mrs. Monarch, her version deviates from that of the patrolman on the issue of consensual entry. Specifically, she testified to asking the patrolman to “wait outside” while she went into the house to see if she could get her husband. According to Mrs. Monarch, the patrolman did not do so. Rather, as she “began to enter [her] house ... he followed [her] in.” (RR. 34A) She also stated that the patrolman could not have seen her husband if he had remained on the porch. Entry was required.

The suppression court, after listening to all of the testimony, denied appellee’s motion to suppress evidence of his insobriety. The court ¡found as a fact that, “[a]t the very least, Patrolman Hoover had Mrs. Monarch’s permission to stand on the defendant’s porch.” And, “[f]rom the porch, Patrolman Hoover could see defendant standing in his living room ... intoxicated.” Thus, the court concluded as a matter of law that, “[s]ince Patrolman Hoover was on the defendant’s porch with Mrs. Monarch’s permission, everything he observed prior to defendant’s arrest shall not be suppressed.” (Suppression Court’s Opinion at 2 & 5) We find that the record supports such a conclusion. Compare Commonwealth v. Hamlin, 302 Pa.Super. 86, 448 A.2d 538 (1982), aff’d 503 Pa. 210, 469 A.2d 137 (1983).

As is relevant to a determination of the issue at bar, i.e., whether the trial court committed an error of law in holding that the Commonwealth did not establish at trial that Patrolman Hoover had Mrs. Monarch’s permission to be in the position he was in when he observed the appellee in an allegedly intoxicated state, we need only reconstruct the testimony of Patrolman Hoover as proffered at the jury trial.

Patrolman Hoover’s recollection at trial was consistent with his sworn testimony at the suppression, except that the consensual nature of his entry into the Monarch’s residence was not discussed, as had occurred at the pre-trial proceeding. On the subject of entry and the condition in which he observed the appellee, he remarked:

A I was approached by Mrs. Monarch who was questioning — wanting to know what was going on. I advised her that her husband was — had been involved in a hit and run accident, that I had to speak to him.
Q And so as the result of the conversation with her, what did you do then?
A We then proceeded to the front door where he was. I went in and I viewed Mr. Monarch standing there in the entrance hall
* * * * * *
Q Did you have any conversation with him after you went in?
A Yes, sir. As I observed Mr. Monarch, I advised him of his Miranda warnings.
Q And for what reason did you do that?
A Because I was placing him under arrest for driving under the influence of alcohol.
Q What observation did you make of him that led you to that conclusion?
A He had to lean against the wall to maintain his balance, slurred speech, bloodshot eyes, disarranged clothes, strong odor of alcoholic beverages on his person and about the room.

(RR. 72A & 73A)

Additionally, Mrs. Monarch’s version of what transpired on the evening in question, as is germane to the case sub judice, mirrored her suppression testimony. For example, she steadfastly maintained that Patrolman Hoover was asked to “please wait” out on the porch while she tried to get her husband up. But, despite her request, when she opened the door, the patrolman followed her into the house. (RR. 94A)

At the completion of the defense’s case, the jury was charged and returned a verdict of guilty. Thereafter, post-verdict motions filed by the appellee questioned the sufficiency of the evidence and claimed that the trial court had erred in not suppressing the officers’ testimony on the question of intoxication on the ground that it was the product of an “illegal[,j ... warrantless entry of Defendant’s residence not justifiable” under any legal theory.

At the post-trial stage, the court re-examined its suppression ruling, and, in doing so, wrote:

In refusing the defendant’s motion to suppress, we made a determination that Patrolman Hoover had probable cause to make the arrest. This determination was based upon two mutually dependant [sic] findings: (i) that Patrolman Hoover had learned from Charles Keays [sic] that the defendant had been involved in an automobile accident, and (ii) that Patrolman Hoover had observed the defendant in an intoxicated condition while standing on the defendant’s porch with the permission of the defendant’s wife. Both findings were necessary to establish the existence of probable cause.
At trial, Patrolman Hoover’s version of what had happened on March 5, 1982 differed from the version he provided at the suppression hearing. At trial, Hoover testified that he first observed the defendant after entering the defendant’s home. It is clear to us that Hoover did not have permission or a right to be where he was when he made this crucial observation. Evidence acquired by a police officer while trespassing on the property of a defendant must be suppressed. Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1978). Had Patrolman Hoover testified in a similar manner at the suppression hearing, the motion to suppress would have been granted.
For the above reasons, the defendant’s motion for a new trial is granted. (Emphasis added in part) (Trial Court Opinion at 2-3)

We disagree with the trial court’s determination, not only as to its recounting of the facts, but also with the legal conclusion that it was encumbent upon the Commonwealth to reestablish at trial the consensual nature of Patrolman Hoover’s presence at the Monarch’s home.

In Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) our Supreme Court, in a plurality opinion, awarded a new trial for a lottery conviction on the ground that the warranted search of the accused’s home was illegally executed in that the occupant was not first afforded the opportunity to surrender his premises voluntarily. Also, and more importantly, the DeMichel Court made certain observations that are relevant to the disposition of the case at bar by disapproving the trial court’s rationale for arresting judgment.

To explicate, it seems that two members of the raiding party (Corporal Frank Hall and Officer Daniel Creden) testified to the circumstances surrounding the execution of the warrant.

Corporal Hall’s suppression testimony revealed that he had announced his identity and purpose prior to entering forcibly into DeMichel’s home. However, at trial “Corporal Hall ... described the events surrounding the police’s entry into appellant’s home but failed to mention that he had given any warnings to the occupants ____” (Emphasis added) Id., 442 Pa. at 558, 277 A.2d at 161. On the other hand, Officer Creden, the officer who actually knocked on appellant’s door, testified that he announced his identity and that is all he said before directing another officer to knock the door down with a sledge hammer.

After the filing of post-verdict motions, the trial judge arrested judgment “on the ground that the evidence at trial demonstrated that the officers who executed the search warrant had not announced their purpose before resorting to forcible entry.” Id., 442 Pa. at 559, 277 A.2d at 162. This course of action effectively overruled the decision of the suppression hearing judge, and, on that basis, the Superior Court reversed the order granting arrest of judgment and remanded the case for sentencing.

Our Supreme Court granted allocatur, and, in the following passage, dispelled the erroneous belief held by both the Superior Court and trial court; viz.:

Preliminarily we note our disagreement with the Superior Court’s apparent categorical holding that a trial judge is powerless to overrule the decision of a suppression hearing judge. While “[w]e impliedly held in Commonwealth v. Warfield, 418 Pa. 301, 211 A.2d 452 (1965) that the trial judge cannot reverse on the same record at trial the decision made after the pretrial suppression hearing * * Commonwealth v. Washington, 428 Pa. 131, 133 n. 2, 236 A.2d 772, 773 n. 2 (1968) (emphasis added), the same does not hold true when the trial judge’s different ruling is based upon new and different evidence. When information comes to light after the suppression hearing clearly demonstrating that the evidence sought to be introduced by the Commonwealth is constitutionally tainted, no consideration of justice or interest of sound judicial administration would be furthered by prohibiting the trial judge from ruling it inadmissible. Although a favorable ruling at the suppression hearing relieves the Commonwealth of the burden of proving a second time at trial that its evidence was constitutionally obtained, the trial judge must exclude evidence previously held admissible at the suppression hearing when the defendant proves by a preponderance of new evidence at trial that the evidence sought to be introduced by the Commonwealth was obtained by unconstitutional means.
Although we thus disagree with the Superior Court, we believe that the trial judge in the instant case erred in granting appellant’s motion in arrest of judgment upon the basis of a finding that the police officers executing the search warrant did not properly announce their purpose before entering appellant’s house. Officer Creden testified unequivocally at trial that he had made no announcement of purpose, but he did not state that his fellow officers were similarly mute or contradict Corporal Hall’s suppression hearing testimony that Hall had made such an announcement of purpose. That being so, the record at trial in no way proves the absence of a proper police announcement of purpose. (Emphasis added in part) (Footnote omitted)

Id., 442 Pa. at 559-61, 277 A.2d at 162-63.

Instantly, it is beyond question that the Commonwealth established at the suppression hearing the legality of the police’s actions prior to the securement of the complained-of-evidence. This is reflected in the pre-trial court’s denial of Monarch’s motion to suppress. Thus, in accordance with DeMichel, the “favorable ruling at the suppression hearing relieve[d] the Commonwealth of the burden of proving a second time at trial that its evidence was constitutionally obtained[.]” This philosophy is also reflected in paragraph (j) of Pa.R.Crim.P. 323, which reads in pertinent part:

If the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive and binding at trial, except upon a showing of evidence [, by the defendant,] which was theretofore unavailable____ (Emphasis added)

Consequently, the post-trial motion court was erroneous in its belief that the Commonwealth had the burden of proving, again, at trial that the police were acting under the mantle of constitutional authority. On the contrary, it was for the defense to prove “by a preponderance of new evidence at trial” the negative of such a proposition. See Commonwealth v. DeMichel, supra; Pa.R.Crim.P. 323(j). [5-7] This the appellee failed to do.

A review of the suppression and trial transcript reveals that Mrs. Monarch’s testimony on those two occasions was identical as to the issue of consensual entry. Thus, we have the absence of any “new” evidence having been produced by the defense at trial to establish that what Patrolman Hoover testified to was tainted as the product of constitutionally infirm police conduct. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Furthermore, our reading of Patrolman Hoover’s testimony, at both the suppression and trial (RR. 15A & 72A-73A), consistently adheres to the revelation (which is contrary to the post-trial motion court’s finding) that only after entering the house did he observe Mr. Monarch to be in an intoxicated condition. In other words, at trial, we have no evidence emanating from Patrolman Hoover to show that he was either not given consent to enter the Monarch’s residence or that he contradicted his suppression hearing testimony that Mrs. Monarch had made such an announcement of consent. That being so, the record at trial in no way proves the absence of a proper police securement of consensual entry preceding the incriminating viewing of the appellee in an inebriated state. Commonwealth v. DeMichel, supra.

Accordingly, having found no other reason to justify a suppression of the incriminating evidence observed by the police prior to their warrantless arrest of the appellee, we reverse the Order of the court below awarding a new trial, direct that the verdict be reinstated and sentence be imposed. Jurisdiction is relinquished.

WIEAND, J., concurs in the result.

TAMILIA, J., filed a concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting:

While I concur in the legal analysis of the majority, which is consistent and well reasoned, I would add that I believe the trial judge should be given the freedom to correct himself when he views an obvious error in his analysis of the suppression testimony, whether or not new evidence has been presented.

Although it is conceivable we could treat the trial court’s changed view of the police officer’s testimony as new evidence, since there was some difference between his testimony at trial and that at the suppression hearing, the issue is still one of credibility. He was believed by the suppression judge as to his probable cause for arresting the defendant, and at jury trial, his testimony as to the charge was believed by the jury.

As to the determination of credibility by the jury, its findings would apply only to 'the elements necessary to prove the crime charged, and it would not be inconsistent for the lower court to find a lack of credibility on the suppression issue even though the jury found otherwise on the charge itself. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

During post-trial proceedings, the learned trial judge noted what he considered to be a discrepancy in the police officer’s testimony at trial, which cast doubt on his suppression testimony. This deviation could not be perceived by the jury, since it did not have the benefit of the suppression testimony. When a party upon whom the burden of proof rests, in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither. Commonwealth v. Crockett, 229 Pa.Super. 80, 323 A.2d 257 (1974). I believe, despite the absolute position enunciated by Pa.R.Crim.P. 323(j) and the case law, Commonwealth v. Bonser, 215 Pa.Super. 452, 258 A.2d 675 (1969); Commonwealth v. DeMichel, 214 Pa.Super. 392, 257 A.2d 608 (1969), that while suppression matters may not be relitigated in trial, the trial judge should have the opportunity in post-trial proceedings, to correct errors that might have occurred during the suppression proceeding. Acting as a court en banc, he has that capacity in virtually any other procedural or substantive matter where error is apparent. As a trial judge, we have observed situations when there was clearly error by the suppression court, which we were powerless to correct absent new evidence, whereupon the only remedy was appeal and remand by the appellate court. This issue was faced by this Court in Commonwealth v. Griffin, 257 Pa.Super. 153, 157-158, 390 A.2d 758, 760 (1978).

In that case, the matter at issue concerned a Rule 1100 order entered by the suppression judge, denying the motion and calling the case to trial. This order was appealed and the appeal was quashed and remanded for trial. The trial judge, on appellee’s motion, called for an evidentiary hearing, and, finding a violation of Rule 1100, dismissed all charges. The dismissal was appealed by the District Attorney of Washington County, who alleged that the dismissal order was a nullity. In his Opinion, Price, J. stated:

Absent some new evidence, it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case. There must be some degree of finality to determinations of all pre-trial applications so that judicial economy and efficiency can be maintained. We therefore find that it was inappropriate for Judge Gladden to issue a subsequent ruling on the motions to dismiss. Having so held, we feel that in the instant case the interests of judicial economy require that we decide the Rule 1100 issue. While we emphasize our disapproval of the procedure herein employed, we are not prepared to adopt the Commonwealth’s position that the order of July 16, 1976, is a nullity. In this area some discretionary freedom must be allowed to the judge of the court below ... that reversing the lower court’s order and permitting the case to go to trial, especially when appellees are clearly entitled to discharge, would only serve to postpone unjustifiably this ultimate result, we do not find an abuse of that discretion.

Id., 257 Pa.Super. at 157-158, 390 A.2d at 760. (emphasis added) Also see, Commonwealth v. Cox, 276 Pa.Super. 29, 32, 419 A.2d 78, 80 (1980). (Overruled on other grounds, Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982).) It is apparent that the lower court was correct in its analysis and this Court, with the benefit of that analysis, was able to resolve the matter without remand.

Despite his best intentions and unquestioned concern for justice and fairness, the learned trial judge had a second insurmountable obstacle to overcome, which under present law would prevent us from affirming his decision. A trial judge, in post-conviction proceedings, in keeping with the standards articulated for considering a motion in arrest of judgment, may not re-evaluate the credibility of a witness or the weight given to that witness by the jury, and it may be added, the credibility and weight afforded by the suppression judge, absent new evidence. Commonwealth v. Meadows, 471 Pa. 201, 205 n. 5, 369 A.2d 1266, 1268 n. 5, (1977); Commonwealth v. Combs, 298 Pa.Super. 527, 445 A.2d 113 (1982).

It would appear that expanding the discretion of the trial judge in this respect would improve judicial economy without sacrificing the desirable finality of determination.

I would defer to the judgment and impressions of the trial judge, since he had the opportunity to view the witnesses and sense the nuances and inflection of tone and mannerisms that are essential to a determination of credibility.

The Griffin court hinted at allowing some discretionary freedom to the court below which I would endorse in the present case as permitting the trial judge to reconsider his findings, on review, particularly when the standard of proof in suppression matters is a preponderance of the evidence, while the standard in a trial on the merits is proof of all elements of the crime beyond a reasonable doubt. Commonwealth v. Ohle, 291 Pa.Super. 110, 485 A.2d 592 (1981); Commonwealth ex rel. Butler v. Rundle, supra; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

Even though the evidence may not be new, if evidence is more vague or contradictory at trial or the suppression evidence misinterpreted so as to cause a trial judge, particularly one who was also the suppression judge, to conclude error was made in granting the suppression motion, judicial economy should require this determination at that time rather than having it decided on appeal. It has long been the law of Pennsylvania that counsel should raise in post verdict motions any issue which has a reasonable possibility of success on appeal, although he is not required to raise issues which are clearly without merit. Commonwealth v. Learn, 233 Pa.Super. 288, 335 A.2d 417 (1975).

When the evidence on suppression need only meet a preponderance of evidence standard, which means that it is more probable than not to be true, there will be cases where a slight deviance in testimony or evidence at trial can have a significant effect on credibility. If, under these circumstances, despite a reading of the testimony in the light most favorable to the Commonwealth, Commonwealth v. Johnson, 228 Pa.Super. 364, 323 A.2d 295 (1974); Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978), a determination is made that error was committed, the court should grant a new trial in the interest of justice. Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968). Commonwealth v. Williams, 229 Pa.Super. 390, 396, 323 A.2d 862 (1974).

On review, this Court is increasingly finding that the concept of finality of determination results in cases coming before the court on appeal, which could have been or were effectively resolved in the court below, but were in technical violation of the procedural rules or existing appellate case law. This is such a case.

It would appear that judicial economy and efficiency would be better served by permitting the trial court to review these matters on post trial motions. It is in a better position to do so and the doctrine of finality of determination is served by having a record even more complete, and this Court would not have to engage in the fiction of finding procedural error while affirming the trial court on the decision it would be required to make on remand.

For these reasons I would affirm the judgment of the court below.

      . Since there is no evidence of record to indicate that the appellee has filed a cross-appeal from that portion of the post-trial court’s Order denying his Motion in Arrest of Judgment, which is an appealable interlocutory order, see Pa.R.Crim.P. 311(a)(5); Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977), we need not examine that aspect of the ruling.

      . The strongest evidence of appellee’s involvement in the accident came from Messrs. Seigworth and Keas. Seigworth was driving to a basketball game and saw an oncoming vehicle in the opposite lane of traffic. There was a parked vehicle in the opposite lane and Seig-worth thought the moving vehicle "was going to stop behind the parked cars [but] it just went sideways in front of [him] and [it] come [sic] to a stop in front of [him].” (N.T. 10/8/82 at 8) Seigworth noticed that the oncoming vehicle did not stop once it “got into the parked cars[; rather,] it went sideways across the road in front of” him. Id. Seigworth identified the driver of the vehicle as the appel-lee-Monarch.

        As for Keas, who lived four houses away from the appellee, he testified to having heard the vehicles collide and to observing the appellee “stagger[ing]” “[w]hen he [appellee] come [sic] around the car[ ]” before making it into his house. Id. at 20, 21 & 22.

      . We believe the suppression court was correct in its analysis that, under Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), the police acted properly in arresting the appellee when they did.
      For example, within minutes of a reported hit-and-run the police arrive on the scene; are told by a witness that appellee committed the offense; and parked the vehicle in a driveway, which, upon inspection, indicates recent damage. Also, appellee’s wife admits to her husband’s involvement and permits the police entry into her home. Once inside, appellee is observed in an intoxicated condition.
      We are of the mind that the preceding was sufficient information to lead the police to believe that a crime had been committed and the appellee had committed it. As for the warrantless nature of the arrest in appellee’s abode, we find that: 1) given the evanescent nature of the evidence (alcohol), see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); 2) a strong reason to believe that the appellee was on the premises; 3) entry was peaceable; and 4) the existence of probable cause coalesced to create the "exigent circumstances” calling for the action complained of by the appellee. We observe, as did the Court in Williams, that of the factors that are to be considered in determining whether a warrantless arrest in one’s home is to be sanctioned, some factors will outweigh others in balancing the scale either for or against upholding the conduct of the police.
      We believe that the police acted properly under the circumstances presented to the suppression court. Albeit the crime involved was not one of violence and Patrolman Hoover had no reason to believe that the appellee was armed and dangerous, we think it prudent that the police acted swiftly to apprehend the appellee. See Commonwealth v. Hartford, 313 Pa.Super. 213, 459 A.2d 815 (1983); cf. Commonwealth of Pennsylvania, Dept. of Trans., Bureau of Traffic Safety v. Guarino, 19 Pa.Cmwlth. 104, 339 A.2d 861 (1975) (Six months suspension of one’s driver’s license could not be sustained where motorist was not transported to situs of necessary breathalizer equipment for administering such a test).

      . The interpretation I would place on the trial court's basis for a change in his view of the suppression testimony is that he believed (in error) at the time of the suppression hearing that the police officer viewed the defendant’s behavior from the porch after being invited to come to the porch.
      Based on pages 15A and 22A of the record, the suppression court made these two findings of fact:
      (4) At the insistence of Patrolman Hoover, Mrs. Monarch agreed to see what she could do in order to give Patrolman Hoover a chance to speak with defendant. Hoover followed Mrs. Monarch as she walked toward defendant’s home. At the very least, Patrolman Hoover had Mrs. Monarch’s permission to stand on the defendant’s porch.
      (5) From the porch, Patrolman Hoover could see defendant standing in his living room. The defendant appeared intoxicated. Patrolman Hoover entered the Monarch home and arrested the defendant for driving while intoxicated. Patrolman Hoover did not have a warrant for defendant’s arrest. Shortly thereafter, Patrolman Hoover was joined by Captain Baker.
      From these findings of fact, the suppression court made this conclusion of law:
      (1) Since Patrolman Hoover was on the defendant’s porch with Mrs. Monarch’s permission, everything he observed prior to defendant’s arrest shall not be suppressed.
      At trial (pages 72-73), the testimony of Hoover supports the fact that he made his crucial observation of defendant’s insobriety after entry of the house. The trial (suppression) judge, therefore, never ruled on the issue of unlawful entry, although he had the opportunity to do so at the suppression hearing. At the post trial stage, he recognized his error on the facts, and after reviewing both the suppression and the trial record, concluded the evidence could not support the conclusion that the view was made from the porch. Since there could not be a view from the porch, the trial judge was for the first time required to decide on post trial motions whether there was a right of entry. This was purely a question of credibility which is exclusively within the trial court’s domain. He believed the defendant’s wife rather than the police officer and, therefore, arrested judgment and granted a new trial.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    479 A.2d 500
    TEMTEX PRODUCTS, INC., v. John W. KRAMER, Sr., Appellant, Deanne L. Oberdick, Appellant, Remarkable Enterprises of York, Inc., Stan Mail, Inc., Wallace Associates, Inc., Brenda L. Wintermeyer, Edward Roberts, Linda M. Wike, and Awareness Mission of Scientology.
    Superior Court of Pennsylvania.
    Argued July 12, 1983.
    Filed June 8, 1984.
    Petition for Allowance of Appeal Denied Oct. 18, 1984.

      Gerald E. Ruth, York, for appellant (at No. 117) and for appellee (at Nos. 119 and 143).
    David R. Dearden, Philadelphia, for appellant (at No. 143) for appellee (at Nos. 117 and 119).
    John D. MacVeigh, Philadelphia, for appellant (at No. 119) and appellee (at Nos. 117 and 143).
    Before CERCONE, President Judge, and ROWLEY and WIEAND, JJ.
   ROWLEY, Judge:

These are three consolidated appeals from two orders of the trial court issued on March 23, 1983. One of the appeals is interlocutory and will therefore be quashed. In the second appeal, we affirm the order of the trial court. In the third appeal, we reverse the orders of the trial court and remand for further proceedings.

On August 16, 1982, Temtex Products, Inc. (Temtex), a Texas corporation with offices in Nashville, Tennessee, filed, in York County, Pennsylvania, a complaint in equity alleging that the defendants had participated in a fraudulent transfer of assets formerly owned by John W. Kramer, Sr. (Kramer), in violation of the Pennsylvania Uniform Fraudulent Conveyances Act (UFCA), Act of May 21, 1921, P.L. 1045, No. 379, §§ 1 et seq., 39 P.S. §§ 351 et seq. On August 30, 1982, Temtex filed a motion for a preliminary injunction requesting the court to (1) enjoin the defendants from conveying or encumbering the assets specified in the complaint, (2) order certain assets to be reconveyed to Kramer, and (3) direct that payments due from some of the defendants be paid into court pending the final outcome of the case. In compliance with Pa.R.C.P. No. 1531(b)(1), Temtex offered to post a bond in an amount sufficient to compensate any person damaged by reason of the improper granting of the injunction. A hearing on the motion was scheduled for “as soon as counsel can be heard.” Although it is unclear when this “hearing” was held, it appears that no testimony was offered but the parties presented legal arguments based upon the complaint, the motion, and an affidavit attached to the motion.

On September 7, 1982, two of the defendants, Wallace Associates, Inc. (Wallace), described in the complaint as “a partnership,” and Stan Mail, Inc. (Stan Mail), a Pennsylvania corporation, filed preliminary objections to the complaint in the nature of a demurrer claiming that Temtex had failed to state a cause of action against them and that they were not proper parties to the action. On September 10, 1982, Deanne L. Oberdick (Oberdick), a Pennsylvania resident, filed preliminary objections (1) in the nature of a demurrer asserting that Temtex had failed to state a cause of action against her; (2) a motion to strike the complaint for improperly pleading legal conclusions, not pleading facts, and failing to attach writings on which the complaint was based; and (3) a motion for a more specific pleading. On October 19, 1982, Kramer, Brenda L. Wintermeyer (Wintermeyer) and the Awareness Mission of Scientology (Mission), a California non-profit corporation, filed preliminary objections contesting the propriety of the trial court’s exercise of in personam jurisdiction as to them. Temtex filed answers to the preliminary objections, denying the material averments in each. The parties also supplied the trial court with numerous legal memorandums.

On March 23, 1983, the trial court issued two orders, each accompanied by an opinion. In the first decision, addressed to the preliminary objections, the court concluded that (1) it could exercise personal jurisdiction over Kramer and dismissed his preliminary objections; (2) it could not properly exercise jurisdiction over Wintermeyer, the Mission, and Linda M. Wike; the court sustained their preliminary objections and dismissed the complaint as to them; (3) a cause of action had been adequately stated under the UFCA as to Oberdick and dismissed her preliminary objections; and (4) no cause of action had been stated against Wallace and Stan Mail. In the second opinion and order, addressed to the request of Temtex for a preliminary injunction, the court determined that, as to the defendants remaining in the action, Temtex had not shown that it was entitled to a preliminary or special injunction and denied Temtex’s motion. Oberdick, Kramer and Temtex appealed. We shall address each appeal in turn.

I — No. 117

Deanne L. Oberdick has appealed from the order denying her preliminary objections in the nature of a demurrer, a motion to strike and for a more specific pleading. Unless an order falls within a specific exception created by statute, see 42 Pa.C.S.A. §§ 702, 5105(c), or by general rule, see Pa.R.A.P. 311, 312 and 1301 et seq., this court may entertain an appeal only if the order appealed from is final. 42 Pa.C.S.A. § 742. Appellant does not invoke any exception to the general rule but rather asserts that the order of March 23, as it relates to her, is a final order within § 742 and is therefore immediately appealable. Brief for Appellant Oberdick at 1.

We disagree. An order is final when the practical effect of the order is to put the appellant out of court, Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), or otherwise terminate the litigation by precluding a party from presenting the merits of a claim or defense to the trial court. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981). Appellant has not argued that any of the three determinations of the trial court have in any way impaired her ability to defend on the merits. Moreover, orders denying preliminary objections are ordinarily interlocutory and not appealable for such orders do no more than require the case to proceed to trial on the merits. Urbano v. Meneses, 288 Pa.Super. 103, 431 A.2d 308 (1981). We therefore conclude that Oberdick’s appeal is interlocutory and must be quashed.

II — No. 143

Temtex Products, Inc., has appealed from those parts of the orders of March 23, 1983, in which the trial court (1) dismissed the complaint as to Wintermeyer, Wike and the Mission for lack of in personam jurisdiction as to them, and (2) denied Temtex’s request for a preliminary injunction. Temtex properly asserts that the first determination is a final and appealable order for it puts Temtex out of court as to the named defendants. Temtex also properly invokes our jurisdiction as to the latter determination for orders denying preliminary injunctions are immediately appealable. Pa.R.A.P. 311(a)(4). We shall discuss each of these determinations separately.

A.

When, as here, a defendant properly raises an objection on the ground of a lack of in personam jurisdiction, the plaintiff has the burden of proving that the exercise of jurisdiction is permissible. Crompton v. Park Ward Motors, 299 Pa.Super. 40, 42, 445 A.2d 137, 138 (1982). In this case, the record includes the pleadings, the motion for a preliminary injunction, exhibits attached to these documents and an affidavit of Larry Smith, Assistant Secretary of Temtex Products, Inc. In reviewing the determination of the trial court, we review these materials and accept as true all of the facts as set forth therein. Id. So construed, these materials reveal the following “facts”.

Temtex and Kramer, a former York County resident, entered into an unexplained transaction in May, 1978, in which Temtex extended to Kramer a substantial amount of credit. This extension of credit was based, in part, on a statement of net worth that listed some or all of Kramer’s assets. In April, 1980, Temtex instituted suit against Kramer in Tennessee. That suit resulted in judgment being entered in favor of Temtex in Tennessee in March, 1981, in the amount of $210,408.55 plus interest at the rate of eight percent per year. On November 23, 1981, the Tennessee judgment was entered in the Court of Common Pleas of York County, Pennsylvania.

Temtex has alleged that seven of the nine named defendants have participated in a fraudulent attempt to convey at least one of three specified assets that had previously been listed on Kramer’s statement of net worth, that these fraudulent conveyances were not supported by “fair consideration” within the meaning of the UFCA, 39 P.S. § 353, and that the conveyances were therefore fraudulent as to it. The conveyances are alleged to have taken place in the following manner.

First Conveyance: One asset listed by Kramer on his “statement of net worth” was a parcel of real estate in York County designated as “Springettsbury-Mailman.” Legal title to this property was in one Stanley Mailman as trustee for an entity designated as the “February 15, 1969, Partnership” and its value was estimated at $69,000.00. Kramer and Mailman were partners in the named partnership. On December 7, 1978, after Kramer had submitted his statement of net worth to Temtex, Kramer transferred his thirty percent interest in the partnership to Deanne L. Oberdick in consideration of the payment of $1.00. Kramer and Oberdick were apparently in Florida at the time of the execution of the assignment. The acknowledgement appended to the assignment was notarized by Linda M. Wike, a notary public in the State of Florida.

Temtex has alleged that Kramer, in making the transfer, acted “with the intent to defraud his creditors and render himself insolvent ... in order to prevent the assets of the partnership from being applied to his debts.” Complaint at ¶¶ 16-17. It is also alleged that Oberdick did not pay a fair consideration for the transfer. The assignment was recorded in the office of the York County Registry of Deeds on December 31, 1978 or 1979, the date on the exhibit not being clear. Temtex has also alleged that, despite the formal adequacy of this assignment, Kramer “continues to exercise ownership and control and to realize the benefits of his thirty percent (30%) interest in the ‘February 15, 1969, Partnership’____” Complaint at ¶ 18.

Second Conveyance: Acting as grantor, Kramer conveyed a second piece of York County real estate to Wallace Associates on January 10, 1977. In partial consideration for this transfer, Kramer took from Wallace Associates a mortgage in the amount of $321,000.00. This mortgage was listed on Kramer’s statement of net worth submitted to Temtex in March, 1978, and at that time it was valued at $316,779.00. On September 15, 1978, Kramer executed an “Assignment of Mortgage,” in which he assigned his interest in the mortgage to Brenda L. Wintermeyer for the stated consideration of $1.00. This assignment was also apparently executed in Florida and was notarized by Linda M. Wike. It was recorded on December 31, 1979, in the York County Registry of Deeds office.

On April 12, 1982, after the judgment in favor of Temtex had been docketed in York County, Wintermeyer, at the direction of Kramer, executed a “Declaration of Charitable Donation” transferring all of her interest in the mortgage to the Awareness Mission of Scientology. The declaration was apparently executed in California and was recorded on April 19, 1982, in the York County Registry of Deeds. Exhibit G to the Complaint is a photocopy of a document entitled “Articles of Incorporation of Awareness Mission of Scientology.” These Articles bear a stamp stating that they were filed in the Office of the Secretary of State of California on April 12, 1982. The Articles are otherwise undated. The Articles were executed by, and named as Trustees of the Mission, Brenda L. Wintermeyer, Linda M. Wike and John W. Kramer.

Temtex has alleged that Wintermeyer did not pay a fair consideration for the assignment of the mortgage from Kramer and that the Mission did not pay a fair consideration for the transfer to it. Moreover, the Mission “knew that Wintermeyer made the conveyance in order to prevent the application of the mortgage proceeds to the payment of Kramer’s debts.” Complaint at ¶ 26. The monthly proceeds of $2,584.86 are allegedly paid to various nominees “at the direction of Kramer” and “Kramer continues to exercise ownership and control and to realize the benefits of the ... mortgage proceeds despite his conveyance thereof ....” Id. at ¶¶ 27-28.

Third Conveyance: Kramer was the sole shareholder and “alter ego” of Remarkable Enterprises of York, Inc. On January 10, 1977, Remarkable, at the direction of Kramer, conveyed a third parcel of York County real estate to Stan Mail, Inc., receiving as partial consideration for this transfer a mortgage in the amount of $114,000.00. On or about December 7, 1978, Kramer directed Remarkable to assign its interest in the mortgage to Edward A. Roberts. This assignment was apparently executed in Florida; Linda M. Wike again notarized the acknowledgement. The assignment was executed by Janet L. Oberdick and Edward A. Roberts acting on behalf of Remarkable in the capacities of Vice President and Assistant Secretary, respectively. The assignment was recorded in the York County Registry of Deeds office on December 31, 1979. The stated consideration was $1.00.

Roberts, at the direction of Kramer conveyed his interest in the mortgage to Linda M. Wike on or about May 1, 1980. See Complaint Exhibit K. On April 12, 1982, Wike executed a “Declaration of Charitable Donation” transferring her interest in the mortgage to the Awareness Mission. This Declaration asserts that the assignment from Roberts to Wike was recorded in York County but no citation is given and no copy of the assignment is included among those attached to the Complaint. The Declaration was executed in California and recorded in the York County Registry of Deeds on April 19, 1982.

It is alleged that Kramer still enjoys the benefits of and exercises ownership and control over the mortgage proceeds by directing that the monthly installments be paid to various nominees. It is also alleged that none of these conveyances were supported by fair consideration and that all were fraudulent as to Temtex. It is also averred that Awareness knew that Roberts made his conveyance to Wike in order to prevent the application of the proceeds to the payment of Kramer’s debts.

Although not expressly stated, the averments of the complaint and the argument presented by Temtex on appeal fairly raise the existence of a civil conspiracy to defraud. This conspiracy was directed and controlled by John W. Kramer. It had two principal goals: to shield Kramer’s assets from being applied to pay his debts and yet permit Kramer to maintain control over and realize benefits from those assets. An integral part of the attempt to realize these goals was to mislead Kramer’s creditors by putting on the public record transfers which purported to cut off Kramer’s interest in the assets. As Temtex argues in its brief, “[A]ll four [Kramer, Wintermeyer, Wike and Awareness Mission] intentionally used the recording statutes in Pennsylvania to defraud creditors of Kramer and they should not be surprised at having to answer this charge in Pennsylvania.” Brief for Temtex at 18. We agree.

Because our long-arm statute permits the courts of this Commonwealth to exercise personal jurisdiction over nonresident defendants “to the fullest extent allowed under the Constitution of the United States”, 42 Pa.C.S.A. § 5322(b), we need only decide whether holding appellees subject to suit in Pennsylvania would be a violation of due process. Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 567, 426 A.2d 635, 640 (1980). In deciding this question, we adhere to the test formulated in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15 (1974):

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Secondly, the cause of action must arise from the defendant’s activities in the forum state. Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. (Citations omitted.)

All three parts of the Proctor & Schwartz test are satisfied in this case. First, these defendants have purposefully entered Pennsylvania to record transfers of property situated in Pennsylvania on the official records maintained in York County. Not only does such recordation serve to invoke the protection of Pennsylvania law between the parties to the transfers themselves, but also, and more importantly in this case, the recordation of these transfers was an integral part of an alleged scheme, knowingly and intentionally to defraud the creditors of Kramer.

Second, the cause of action arises out of the conspiracy to defraud, a material part of which was performed in this Commonwealth. A few acts or even a single act in the forum state may provide a basis for that state’s courts to assert jurisdiction over the parties. McGee v. Internation Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Vishay Intertechnology, Inc. v. Delta International Corp., 696 F.2d 1062, 1065-1069 (4th Cir.1982); Brown v. Flowers, 688 F.2d 328, 331-334 (5th Cir.1982). Moreover, it has been held that personal jurisdiction over all of the participants in concerted action may be maintained where a significant part of the action took place in the forum state. See In Re Arthur Treacher’s Franchise Litigation, 92 F.R.D. 398, 410-412 (E.D.Pa.1981); National Egg Co. v. Bank Leumi le-Israel B.M., 504 F.Supp. 305, 313 n. 7 (N.D.Ga.1980).

Third, the exercise of jurisdiction in this case would be fair and reasonable.

[T]he determination of whether an exercise of jurisdiction is reasonable depends on the burden that would be imposed on the defendant, in light of several factors, including the forum state’s interest in resolving the dispute; the plaintiff’s interest in obtaining convenient and effective relief; the interstate judicial system’s interest in the most efficient resolution of the controversy and the interest of the several states in furthering substantive social policies.
Kingsley & Keith (Canada), Ltd. v. Mercer International Corp., 291 Pa.Super. 96, 109, 435 A.2d 585, 591 (1981).

The burden placed on these defendants is not sufficiently heavy to counterbalance the factors favoring the exercise of jurisdiction. Chief among these favorable factors is the interest of this Commonwealth in ensuring the integrity of its public record registries. The interest of the interstate legal system is also served by not permitting our public records to become a haven for the unscrupulous. According to the record before us at this time, appellees sought to further their fraudulent activities by purposefully entering this Commonwealth, either personally or through agents. Appellees cannot now attempt to claim that the recording of these transfers was an innocent “perfunctory” act. We therefore conclude that Pennsylvania may permissibly assert in personam jurisdiction over these defendants. That part of the trial court’s order of March 23, 1983, which sustained the preliminary objections of Brenda L. Winter-meyer, Linda M. Wike and the Awareness Mission of Scientology on the ground that the court lacked jurisdiction will be reversed.

B.

In considering Temtex’s request for a preliminary injunction, the trial court was presented with the question of “whether a preliminary injunction is appropriate as to those Defendants who remain after the entry of the [order] dismissing some of them as parties Defendant. ” Tr. Ct. Op. at 3 (emphasis added). At that time, the court had before it only John W. Kramer, Deanne L. Oberdick and Remarkable Enterprises of York, Inc. The court ruled that if Temtex successfully voided the allegedly fraudulent transfers, it could then garnish the proceeds of the mortgages. Id. at 4.

The scope of our review of an order granting or denying a preliminary injunction is normally very narrow.

[W]e do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor.
Singzon v. Commonwealth Dept. of Public Welfare, 496 Pa. 8, 10-11, 436 A.2d 125, 126-127 (1981) (citations and quotation omitted).

The principal factor relied upon by the trial court was the reduced number of parties remaining before the court. Because of our determination on the issue of jurisdiction, the complaint will now be reinstated as to three of the five parties dismissed by the trial court. Moreover, we do not believe that, in the face of these averments of fraud and wasting of assets, that it was proper for the court to leave Temtex to a remedy which may be several years from fruition. The payments on these mortgages are lost to Temtex as they are paid. Moreover, these appellees have by their past behavior demonstrated their desire to put these assets beyond the reach of any creditors. We therefore conclude that the proper performance of our appellate function requires that we disturb the decision of the Chancellor.

The essential prerequisites for the issuance of a preliminary injunction are as follows:

[F]irst, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiffs right is clear and the wrong manifest, a preliminary injunction will not generally be awarded.
Singzon v. Commonwealth Dept. of Public Welfare, supra, 496 Pa. at 11, 436 A.2d at 127.

We have concluded that these standards have been met. Temtex has alleged the dissipation of assets which were conveyed away by Kramer or at Kramer’s direction. These transactions were prima facie fraudulent as to Kramer’s creditors under the UFCA. 39 P.S. §§ 354, 357 and 358(b). Once these assets have been dissipated, there is apparently nothing left for Kramer’s creditors to execute on no matter what damage award may be made. Furthermore, Temtex has offered to post a bond in sufficient amount to pay for any damage sustained by those injured should the issuance of an injunction later be discovered to be erroneous. The injury stemming from the denial of the injunction would therefore outweigh the injury should an injunction be granted erroneously. Therefore, we believe that the documents filed of record in this case establish that the conduct complained of is actionable under the UFCA, that Temtex’s right is clear and the wrong manifest. We can conceive of few cases in which the grant of a preliminary injunction would be more appropriate.

III — No. 119

John W. Kramer, Sr., has appealed from that part of the trial court’s first order issued March 23, 1983, which dismissed his preliminary objections challenging the court’s exercise of in personam jurisdiction as to him. Such an order is interlocutory and not appealable unless it falls within an exception set forth in a statute or rule. Pursuant to Pa.R.A.P. 311(b), an appeal may be taken as of right from an order sustaining the trial court’s jurisdiction over the person, but only if one of two conditions is fulfilled:

(1) the plaintiff ... files of record within ten days after the entry of the order an election that the order shall be deemed final; or
(2) the court states in the order that a substantial issue of jurisdiction is presented.

In this case, no election has been filed and the trial court did not certify in the order of March 23, 1983, that a substantial issue of jurisdiction was presented.

We note, however, that the photocopied docket sheets in the reproduced record and a statement in Appellant Kramer’s brief indicate that the trial court issued an order on June 23, 1983, amending its order of March 23 to state that a substantial issue existed. This assertion is not denied. Moreover, the court did have jurisdiction to make such a formal correction pursuant to Pa.R.A.P. 1701(b)(1). See J. Nevin White Lumber Co., Inc. v. Sheriff, 60 Pa. Commw. 501, 431 A.2d 1190 (1981). In addition, the trial court could have taken this action had we directed or authorized it to do so. Rule 1701(b)(5). Finally, the issue of the trial court’s jurisdiction over Kramer was fully litigated on the merits and Temtex has raised no objection to our doing so on appeal. We therefore conclude that, in the interest of judicial economy and expediting the ultimate decision on the merits, we should disregard or deem satisfied the certification requirement of Rule 311(b)(2). Pa.R.A.P. 105(a); Parker v. Commonwealth, Department of Public Welfare, 49 Pa.Commw. 619, 411 A.2d 897 (1980). We will therefore reach the merits of this appeal.

The trial court, after discussing the applicable minimum contacts principles, ruled that there were sufficient contacts between Kramer and this Commonwealth to permit it to properly assert jurisdiction over him. We agree. The trial court summarized Kramer’s contacts as follows:

[Kramer] sold real estate situate in York County to the present mortgagors, and accepted as security for repayment certain mortgage documents recorded in the Office of the Recorder of Deeds in York County. Therefore, the entire basis for the later transactions was constructed by Defendant Kramer in this State. Any benefits accruing to him by way of repayment of the mortgage principal or as consideration for the assignment of interests in the mortgages negotiated by him as part of the settlements for the York County real estate, were a direct result of his activity within the forum State of Pennsylvania. Tr. Ct. Op. at 7-8.

Furthermore, Kramer’s participation in the alleged conspiracy, as explained above in Section II, renders him subject to the jurisdiction of the courts of this Commonwealth. The trial court’s order sustaining the exercise of in personam jurisdiction as to Kramer will be affirmed.

IV — Motion For Stay

Subsequent to oral argument in this case, counsel for Kramer filed with this Court a motion for a stay of all further proceedings, including the rendering of an opinion and issuance of an order. Counsel informed us that his client has filed for bankruptcy and contends that any further proceedings in this case would violate the Bankruptcy Code’s automatic stay. 11 U.S.C.A. § 362(a). We disagree. It has yet to be determined whether Kramer has any interest in the assets which are the subject of this suit. The Bankruptcy Code does not bar proceedings in a case in which the bankruptcy debtor has no interest in the property at issue. In Re Sparkman, 9 B.R. 359 (Bkrtcy.E.D.Pa.1981); Foulke v. Lavelle, 308 Pa.Super. 131, 454 A.2d 56 (1982). Moreover, the fact that Kramer, individually, filed for bankruptcy does not automatically stay proceedings against the parties joined here as co-defendants who currently claim an interest in these assets, see Pitts v. Unarco Industries, Inc., 698 F.2d 313 (7th Cir.1983), nor does such action stay proceedings against Kramer as “trustee” of one of the defendants in this action. See In Re Bailey, 11 B.R. 199 (Bkrtcy.E.D.Va.1981). Therefore, Kramer’s application for a stay will be denied without prejudice to its renewal at a more appropriate time.

In accordance with all of the foregoing reasons, we make the following disposition of these appeals:

At No. 117 Harrisburg 1983, the appeal is quashed.

At No. 119 Harrisburg 1983, the order of the trial court is affirmed.

At No. 143 Harrisburg 1983, the order of the trial court sustaining the preliminary objections to the court’s exercise of in personam jurisdiction filed on behalf of Brenda L. Wintermeyer, Linda M. Wike and the Awareness Mission of Scientology is reversed and the complaint is reinstated as to them. Also, the order of the trial court denying the motion of Temtex Products, Inc., for a preliminary injunction is reversed and the trial court is hereby directed to enter an appropriate order in accordance with the foregoing opinion.

Appellant Kramer’s request for a stay is denied.

It is so ordered.

Jurisdiction is not retained.

      . No preliminary objection raising the question of in personam jurisdiction was filed on behalf of Appellee Wike. The preliminary objection filed named only Appellant Kramer and Appellees Wintermeyer and Awareness Mission. As set forth above, however, the court ruled that it could not exercise jurisdiction as to her. Temtex has not raised this defect as a ground for reversing the trial court’s order. Moreover, Wike has entered an appearance before this court and was represented by counsel who took part in oral argument and filed a brief on her behalf. We therefore conclude that the omission of her name from the preliminary objections filed on behalf of Kramer, Wintermeyer and the Mission was an oversight.

      . The elements of a cause of action for civil conspiracy are succinctly set forth by the Supreme Court in Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d 466, 472 (1980).

      . Although this test was formulated by this court prior to several recent United States Supreme Court decisions, it remains the test applied by the courts in Pennsylvania. Kingsley & Keith (Canada), Ltd. v. Mercer International Corp., 291 Pa.Super. 96, 104 n. 5, 435 A.2d 585, 589 n. 5 (1981).


author: CERCONE, President Judge:

text:
    479 A.2d 509
    COMMONWEALTH of Pennsylvania v. Harry Martin RILEY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1983.
    Filed June 8, 1984.

      Charles Nistico, Chester, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge, and ROWLEY and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant was charged at informations Nos. 426A-426H of 1979 with murder, voluntary manslaughter and other lesser crimes. Of particular interest to this appeal is that, he was charged, at information No. 426G, with conspiracy with one John McCormick, to commit, or attempt to commit, or solicit to commit, murder, voluntary manslaughter, and involuntary manslaughter. While at No. 426H appellant was charged with conspiracy with one Robert Kane to commit, or attempt to commit, or solicit to commit aggravated assault, recklessly endangering another person, possessing an instrument of crime, and prohibited offensive weapon. Appellant proceeded to trial on the informations before a jury and was found guilty of conspiracy to commit voluntary manslaughter, conspiracy to commit aggravated assault, conspiracy to commit recklessly endangering another person and conspiracy to possess an instrument of crime; he was acquitted of all other charges. Post-trial motions were filed, argued and denied. On the charge of conspiracy to commit voluntary manslaughter appellant was sentenced to a period of five (5) to ten (10) years incarceration. A term of five (5) to ten (10) years imprisonment was also imposed on the count of conspiracy to commit aggravated assault. The court further imposed a period of one (1) to two (2) years for the conviction of conspiracy to recklessly endanger another. The sentence on the weapons offense was suspended. All sentences were to run consecutive with each other. Therefore, appellant was sentenced to a total terra of eleven (11) to twenty-two (22) years. Appellant appeals the judgment of sentence.

To properly understand the various issues raised by appellant we must first place the charges into the factual context in which they arose. In doing so, we accept as true the evidence as produced by the Commonwealth, the verdict winner.

On September 21, 1973, James Long was shot four times. He died of his wounds. James H. Colgan testified that two weeks prior to the shooting he was with appellant at a bar. They left the bar and drove in Colgan’s car to the MacDade Mall. Appellant placed a rifle on the back floor of the vehicle. They parked the vehicle near the mall and proceeded to a group of hedges across the street from the mall. From there they were able to observe a group of members of a motorcycle club, known as the Warlocks, standing under a theatre marquee. Appellant took the rifle, which was equipped with a scope from the car, and observed the gang members through the scope. When Colgan asked what appellant was doing, appellant responded “I want to get a Warlock.” After appellant indicated that the range was too great, the two men got in Colgan’s car and drove to a different vantage point. There appellant from inside the car, once again looked through the gun sight of the rifle, aiming the gun at the club members. Colgan panicked and placed the car in gear preventing appellant from completing the act. Appellant complained to the effect that he (Colgan) was a coward. The two men returned to the bar.

On September 21, 1973, appellant was in the company of Robert Kane and John McCormick. The trio went driving around in Kane’s automobile, with appellant being equipped with a .22 caliber semi-automatic rifle and scope. They passed the MacDade Mall where appellant saw one of the Warlocks, James Long. Appellant directed Kane to a dirt road where he then directed Kane to position the car. Appellant rolled down the window, stuck out the rifle, aimed at Long and fired four rounds. He then inquired of his two companions whether they saw the victim fly back. The three departed the area of the shooting and appellant proceeded to dismantle the weapon. The rifle was wiped off with oil and, then, the barrel was thrown into a pond and the stock was dropped from an overpass. The three went to a bar, frequented by members of another motorcycle club, other than the Warlocks, where appellant told various people there present of the deed that had just been performed.

Criminal proceedings were instituted by a complaint filed on February 16, 1979, followed by the informations filed on April 18, 1979.

We will address appellant’s contentions in the same order in which he raises them on appeal. Appellant argues that the evidence was insufficient to demonstrate the existence of a conspiracy. To support such a claim, appellant refers us to several aspects of the case, which he believes demonstrates the weakness of the prosecution’s case. He contends that the testimony of his alibi witness, Patrick Hodge, was unimpeached except for an improper reference to prior criminal conduct. Furthermore, Kane’s testimony was discredited by the fact, of which the jury was advised, that he was testifying pursuant to a plea bargain. Appellant contends that it is obvious that the jurors did not believe Kane, as the jury acquitted appellant of all the substantive charges of homicide and other related offenses. He theorizes that the jury would not have found him guilty of the conspiracies but for the improper admission of prejudicial testimony.

When weighing the sufficiency of evidence we must view the evidence in a light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, determine whether the trier of fact could find every element of the crime present beyond a reasonable doubt. Commonwealth v. Byers, 320 Pa.Superior Ct. 223, 467 A.2d 9 (1983). Credibility of a witness is a factual issue to be resolved by the trier of fact. Commonwealth v. Hartzell, 320 Pa.Superior Ct. 249, 467 A.2d 22 (1983). Furthermore, although a defendant introduces an alibi defense, the jury is free to disbelieve such testimony. Commonwealth v. Jellots, 277 Pa.Superior Ct. 358, 419 A.2d 1184 (1980).

Here the jury apparently believed the testimony of an admitted co-actor, Kane, over that of the alibi witness. We may not interfere with such credibility determination. As to the contention that the jury could not have found appellant to be a participant in the conspiracy since it acquitted him of the homicide and manslaughter charges, this claim is actually a contention that the verdicts were inconsistent. It has long been the rule in Pennsylvania that so long as there is evidence to support the guilty verdict actually returned, inconsistency of verdicts will not be a basis for relief. Commonwealth v. Glasco, 298 Pa.Superior Ct. 189, 444 A.2d 724 (1982). See Commonwealth v. Wanamaker, 298 Pa.Superior Ct. 283, 444 A.2d 1176 (1982), where this court upheld a conviction for conspiracy to attempt to commit murder even though the defendant was acquitted of the charge of attempt to commit murder. In addition to the testimony set forth above, several witnesses also testified regarding admissions appellant made to them. We see no need to review the evidence further, as it is clear that it was sufficient to support the jury’s findings.

This brings us to appellant’s complaint that the admission of certain evidence interfered with the jury’s fact finding role. He contends that Colgan’s testimony pertaining to, what is referred to by the Commonwealth as a “dress rehersal”, of the incident, that occurred two weeks prior to the killing, was irrelevant.

This court in Commonwealth v. Kaster, 300 Pa.Superior Ct. 174, 446 A.2d 286 (1982) and Commonwealth v. Hawkins, 295 Pa.Superior Ct. 429, 441 A.2d 1308 (1982) addressed similar claims. In Raster the prosecution was permitted to introduce evidence demonstrating the defendant’s ill will towards a certain group of individuals, which was corroborative of evidence of a plan to kill members of such select group. Here Colgan’s testimony demonstrated appellant’s crusade to shoot a Warlock which had allegedly culminated in such a killing. Such evidence was therefore relevant. Evidence presented in Hawkins, was offered for the purpose of showing the defendant’s involvement, with others not charged in the information at issue, in a somewhat similar criminal scheme. It was held there that such evidence was properly admitted and that its probative value outweighed the prejudice to the defendant. Colgan’s testimony here in question clearly demonstrates a common design or plan to shoot a member of the Warlocks club and its probative value clearly outweighed the prejudice claimed by appellant.

Appellant next complains about two responses elicited from Commonwealth witnesses which he contends refer to prior criminal conduct. In the first instance a Mr. Ettien testified that he had been incarcerated at the same time as appellant. The witness testified that at that time appellant had made statements to him concerning the upcoming trial for the killing of James Long. On cross-examination, defense counsel asked where the conversation occurred, to which the witness responded, in the county jail. Counsel further inquired as to whether appellant was being held there because of the Long shooting. Ettien replied that appellant “had come down” from a state correctional institution. Counsel moved for a mistrial, arguing that such reference indicated that appellant had a prior criminal conviction.

We must agree with the trial court that appellant assumed the risk of such response when defense counsel inquired into the reason for appellant’s incarceration. See Commonwealth v. McDuffie, 476 Pa. 321, 382 A.2d 1191 (1978); Commonwealth v. Gilliard, 300 Pa.Superior Ct. 469, 446 A.2d 951 (1982).

Furthermore, appellant finds error in testimony elicited from an Officer Parker, who was called to rebut the testimony of Patrick W. Hodge, who testified on appellant’s behalf. In the course of his testimony, the officer indicated that at the time he had arrested Hodge, Hodge had used the name of Joseph L. Garrett. Appellant now claims that such reference to the witness’ arrest improperly weakened Hodge’s credibility. At the time of the testimony no objection was voiced, nor was such a claim raised in post-trial motions, therefore it has not been preserved for appellate review. Commonwealth v. Horsey, 481 Pa. 470, 393 A.2d 1 (1978); Commonwealth v. Bethel, 295 Pa.Superior Ct. 312, 441 A.2d 1248 (1982).

Appellant further contends that he could only be convicted of one conspiracy and therefore the multiple sentences for the multiple conspiracies were improper. We are constrained to agree. The Commonwealth argues that no objection was made to the verdict, nor was a request made to have the verdict molded. The issue was also not raised in post-trial motions or in a motion for reconsideration of the sentence and was not present in the statement of issues complained of. However, a claim that a sentence is unauthorized or illegal can not be waived. Commonwealth v. Ford, 315 Pa.Superior Ct. 281, 461 A.2d 1281 (1983); Commonwealth v. Kerr, 298 Pa.Superior Ct. 257, 444 A.2d 758 (1982). Therefore we must resolve the dispute at hand.

At sentencing, defense counsel argued strenuously that in light of 18 Pa.C.S.A. § 903(c) his client could only be sentenced on one conspiracy. That section reads:

(c) Conspiracy with multiple criminal objectives. — If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

The Commonwealth contended, and the trial court agreed, that more than one conspiracy existed. Kane testified that he thought appellant was only going to “take off the man’s legs.” This, the prosecution contends, rose only to an agreement to commit, at the most, aggravated assault. Accordingly, in information No. 426H appellant was alleged to have conspired with Kane to commit aggravated assault and other lesser offenses. Whereas, with McCormick, appellant was alleged to have shared an intent to kill a Warlock in retribution for the Warlocks being responsible for McCormick’s loss of an eye. Hence, information No. 426G charges appellant with conspiring with McCormick to murder Long, as well as other lesser crimes. We find this rationalization to be transparent and we will not continue it.

The facts of this case indicate that on the night of September 21, 1973 appellant, McCormick, and Kane, spotted the victim who they identified as a Warlock, near the MacDade Mall where the Warlocks were known to congregate. Both McCormick and Kane, clearly were aware that the appellant intended to shoot the Warlock member; Kane was driving the trio at appellant’s direction. Accepting, the Commonwealth’s version, as we must, Kane believed that appellant was merely going to cripple the unknowing victim. We are at a loss as to how such differences in perception may amount to more than one conspiracy, especially in respect to appellant who intended only one shooting at the time in question. Only a few cases have addressed situations involving claims of multiple conspiracies, and none are on point with the facts of this case. Nonetheless, a review of such available cases lend support to our holding here.

In Commonwealth v. Marino, 213 Pa.Superior Ct. 88, 245 A.2d 868 (1968), the defendants were charged, in three separate indictments with three separate conspiracies. All three dealt with a scheme to blackmail and extort monies from the same individual. Two of the dates corresponded with overt acts committed in furtherance of the plan. It was held that “but one conspiracy” existed. A similar result was reached in Commonwealth v. Richbourg, 260 Pa.Superior Ct. 438, 394 A.2d 1007 (1978). There the co-actors agreed to commit a robbery in order to obtain keys necessary to break into a safe. As the burglary involving the safe was the ultimate goal of the conspiracy, convictions for both conspiracy to burglarize and conspiracy to rob were improper. A final case we wish to discuss is Commonwealth v. Ivy, 302 Pa.Superior Ct. 114, 448 A.2d 553 (1982) where the defendant was convicted of five counts of robbery and five counts of conspiracy. All charges arose from a multiple robbery of passengers on a bus. This court found that all robberies were the object of one conspiracy or one conspiratorial relationship.

In this case it is crystal clear that all three actors shared the same intent or goal, and that was to shoot a Warlock. Any differences in what individually the actors contemplated, would result from the shooting, are negated when we review the general principles of conspiracy theory. When a conspiracy is shown to exist, then each conspirator is responsible for the acts of his or her partners committed in furtherance of the conspiracy. Commonwealth v. Plusquellic, 303 Pa.Superior Ct. 1, 449 A.2d 47 (1982); Commonwealth v. Porter, 300 Pa.Superior Ct. 260, 446 A.2d 605 (1982). Despite the fact that an individual co-conspirator did not contemplate a killing, where such is a natural and probable consequence of a co-conspirator’s conduct, the killing is not beyond the scope of the conspiracy. Commonwealth v. Laurin, 269 Pa.Superior Ct. 368, 409 A.2d 1367 (1979). Therefore, even though Kane may not have been charged with, nor contemplated, the killing, he still was culpable for it under conspiracy theory.

Having found that only one conspiracy existed we are obligated to vacate the judgment of sentence imposed at No. 426H. Voluntary Manslaughter is a felony of the second degree, 18 Pa.C.S.A. § 2503(c), and a conspiracy to commit such crime is also a felony of the second degree, Id. § 905(a). The maximum sentence that may be imposed for a second degree felony is ten (10) years. Id. § 1103(2). Here the trial court imposed the maximum sentence, and therefore no purpose would be served in remanding for resentencing.

Appellant’s last argument is that his convictions for conspiracy were barred by the statute of limitations. This issue is being raised for the first time on this appeal. Normally, as the claim was not raised pre-trial, we would deem it to have been waived. Commonwealth v. Darush, 501 Pa. 15, 20 n. 4, 459 A.2d 727, 730 n. 4 (1983). However, appellant contends that trial counsel was ineffective in failing to raise such claim and therefore insists that it has not been waived.

Our Supreme Court recently held in Commonwealth v. Askin, 502 Pa. 575, 467 A.2d 821 (1983) that the statute of limitations applicable to a charge of conspiracy is two years. 42 Pa.C.S.A. § 5552. Such decision overruled this court’s decision in Commonwealth v. Askin, 306 Pa.Superior Ct. 529, 452 A.2d 851 (1982) where we held that the statute of limitations for conspiracy is determined by the statute of limitations for the most serious offense for which the defendant could properly have been convicted. We must first determine what the state of the law was in 1979 when appellant was tried, for counsel will not be deemed ineffective for failing to predict future developments in the law. Commonwealth v. Pritchett, 320 Pa.Superior Ct. 359, 467 A.2d 364 (1983).

In Commonwealth v. Kirk, 340 Pa. 346, 17 A.2d 195 (1941) our Supreme Court held that a completed conspiracy must be prosecuted within two years after its cessation. Also pertinent is Commonwealth v. Fabrizio, 197 Pa.Superior Ct. 45, 176 A.2d 142 (1961) where the underlying crime was manslaughter. There this court found a prosecution for a conspiracy, where no allegation was made that any act was done in pursuance of the conspiracy or renewal of the conspiracy within two years of the indictment, was barred by the statute of limitations. In a related matter, a panel of this court held in Commonwealth v. Volk, 298 Pa.Superior Ct. 294, 444 A.2d 1182 (1982), that where the crime of conspiracy was a continuing offense and was renewed by repetition, a prosecution could be brought at any time within two years of the last offense. Therefore, it is evident that until this court’s decision in Askin, supra, the law was that a defendant could not be prosecuted for a completed conspiracy which had been concluded more than two years prior to the initiation of the charges. Hence, the allegations against appellant of a conspiracy completed more than five years earlier were untimely.

We were faced with a similar situation in Commonwealth v. Richey, 249 Pa.Superior Ct. 365, 378 A.2d 338 (1977). There, as here, a claim that various offenses, including conspiracy, were brought beyond the statute of limitations, was raised for the first time on appeal in the form of a claim of ineffectiveness of counsel. There we stated:

To determine whether appellants were denied effective assistance of counsel, we must inquire as to the existence of some reasonable basis for counsel’s failure to raise the defense of statute of limitations. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Of course, if the defense had no merit, our inquiry would then cease. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). In the instant case, however, it is apparent that portions of the indictments would have been quashed had the statute of limitations been raised, so we must proceed to determine whether there was a reasonable basis for failing to do so. We are unable to determine from the record whether or not such a reasonable basis existed.
However, since we will not manufacture a reasonable basis not supported by the record, we must remand for an evidentiary hearing to determine why counsel did not raise the statute of limitations defense. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). If it is determined that trial counsel had a reasonable basis for their actions, the judgments of sentence shall be reinstated.

Id., 249 Pa.Superior Ct. at 373-74, 378 A.2d at 342.

We are constrained to grant the same relief here especially in view of the fact that trial counsel is also representing appellant in this appeal. Therefore, we also vacate the judgment of sentence imposed at No. 426G and we remand for a evidentiary hearing to determine whether counsel had a reasonable basis for not raising the statute of limitations defense. As trial counsel must explain his reason for foregoing a valid claim, new counsel should be appointed to represent appellant. Should the court determine that counsel was not ineffective it should reinstate the judgment of sentence at No. 426G.

Judgment of sentence at No. 426H is vacated. Judgment of sentence at No. 426G is vacated and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

      . Kane was sentenced to a term of 6 to 23 months incarceration.

      . Kane's participation should not be confused with the account given by Colgan. Colgan had accompanied appellant two weeks before the actual shooting. At that time, due to Colgan’s second thoughts, any attempted shooting was aborted. Any charges which may have or could have arose from this incident are not part of this appeal.

      . Appellant has prepared a pro se memorandum on this point which • appellate counsel has incorporated into his brief.

      . As that court noted, § 5552 was amended by the Act of May 13, 1982, P.L. 417 to provide that a conspiracy to commit specifically enumerated offenses be brought within five years. See 42 Pa.C.S.A. § 5552(b)(3).

      . In reaching our decision in Askin we relied on Commonwealth v. Hawkins, 294 Pa.Superior Ct. 57, 439 A.2d 748 (1982); and Commonwealth v. Eackles, 286 Pa.Superior Ct. 146, 428 A.2d 614 (1981). Neither case specifically addressed the statute of limitations pertaining to conspiracy but instead dealt with crimes involving fraud or a breach of a fiduciary duty.

      . We realize that should it be determined that counsel was ineffective appellant would be entitled to be discharged on all of the conspiracy convictions, however we have chosen to address the other issues in the interest of judicial economy so that a new appeal need not be taken as to those issues should the court find against appellant.