author: WATKINS, Judge: BROSKY, Judge,

text:
    485 A.2d 502
    COMMONWEALTH of Pennsylvania v. Lonnie COBURN, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 7, 1984.
    Filed Dec. 7, 1984.
    Petition for Allowance of Appeal Denied April 16, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   WATKINS, Judge:

This appeal is from the Judgment of sentence of the Court of Common Pleas, Criminal Division, of Allegheny County after jury conviction of the defendant-appellant, Lonnie Coburn, of voluntary manslaughter and from the refusal of the court below to modify the sentence of one and one-half (1 and V2) to five (5) years.

The first contention of the appellant on appéal is that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that the defendant was not justified in killing the victim to protect himself.

The facts indicate bitter feelings between the victim and the defendant which stem from drinking and a mutual interest in Alice McGhee, female owner of 901 Bar and the alleged girlfriend of the defendant a bartender there. The victim had some financial interest in the 901 Bar.

In the early morning hours of August 30, 1981, an argument arose between defendant, Coburn, and victim, Davis. Prior to this argument, defendant had threatened victim’s life on several occasions according to witnesses’ testimony. A fight ensued outside the bar, and victim struck the defendant with a pool cue. They separated with the defendant remaining at 901 Bar and Davis going to an adjoining bar. The 901 Bar was without electricity due to unpaid electrical bills. A few minutes later, Davis entered the 901 Bar and was shot immediately in the chest by a gun fired by the defendant from behind the bar. As he fell, Davis pulled his gun and fired several shots, one of which struck the defendant causing him to be paralysed.

First, the appellant argiies that as a matter of law the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that the defendant was not justified in taking the life of the victim in self-defense. Commonwealth v. Lavette, 498 Pa. 665, 450 A.2d 975 (1982); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975).

“Before we can say that the prosecution has not met the burden, our review of the evidence must show that at least one of the following has been established beyond a reasonable doubt:

(1) that the defendant did not reasonably believe he was in danger of death or serious bodily harm;

(2) that the defendant provoked the use of force;

(3) that the defendant had a duty to retreat, and the retreat was possible with complete safety.

“Establishment beyond a reasonable doubt of any one of these elements will insulate the conviction from a defense challenge to the sufficiency of the evidence in a case where self-protection is at issue.” Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500-503 (1979), citing Commonwealth v. Eberle, 474 Pa. 548-554, 379 A.2d 90-93 (1977). (Emphasis added)

From the record the evidence is clear that the defendant’s state of mind as manifested by the several threats against the victim’s life was that of one avenging the assault.

As the court below pointed out:

“A material factor precipitating the encounter between the two men was the relationship existing (severally) between them and Alice McGhee, the owner of The 901 Bar — defendant’s initial threats were uttered along with a warning that the victim was to ‘stay away from Alice McGhee.’ It is to be noted that the shotgun used in the killing had been kept behind the bar for some months. Defendant had repeatedly threatened the victim’s life in front of witnesses, and had in fact done so to witness Jackson immediately prior to the victim’s entry into the unlighted bar. The time lapsed only long enough for the witnes to place himself behind the bar and pour a drink. The victim entered. There was no conversation before Jackson heard one loud shot and Kelly Davis saying, ‘You son of a bitch, you done shot me.’ Neither the interval of time between the threat and the shooting, nor any other occurance prior to the victim’s arrival at The 901 Bar suggests other than that defendant lay in wait and fired the shotgun upon seeing Kelly Davis.
“From the evidence it is clear that the jury could have reasonably inferred that defendant, enraged by the victim’s attack on him with a pool cue, acted in the heat of passion, carrying out his thrice reiterated intention to kill the victim. The sequence of events recounted at trial contradicts a theory of self defense as the killing occurred immediately upon Davis’ entrance, with no prior confrontation in the bar before the fatal blast was fired. From the evidence it is clear that Davis had no opportunity, after walking through the doorway, to place defendant in the fear of death or serious bodily injury so as t justify the shooting as done in defense of self.
“The jury obviously was satisfied beyond a reasonable doubt that the Commonwealth had met its burden of disproving defendant’s right to act in self-defense.”

Secondly, the appellant asserts the trial court erred in allowing the introduction of “other crimes evidence” based on the Commonwealth’s examination of Commonwealth witness Sanders which was:

Q. Up until this point in time, what was the relationship between Lonnie and Kelly?
A. Friends.
Q. Did they spend a lot of time together?
A. Yeah, they were together sometimes.
Q. Did you ever see them fight before?
A. Once, when Alice was saying about when Kelly knocked him off the stool.
Q. Okay. What happened on that particular occasion?
A. Lonnie was behind the bar pouring drinks and he wasn’t allowed behind the bar at all. Because the money had started coming up short, and there would be no liquor. So he wan’t allowed behind the bar anymore. And he had stock—
At this point defense counsel requested a sidebar conference.

With respect to evidence of other criminal activities of defendant which have no relation to his current charges, the general rule is that the Commonwealth may not introduce such evidence. Commonwealth v. Spiegel, 311 Pa. Superior Ct. 135, 141, 457 A.2d 531, 534 (1983); Commonwealth v. Grim, 249 Pa. Superior Ct. 441, 446, 378 A.2d 377, 379 (1977). In Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981), the Supreme Court, citing Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977), said:

(W)e have never ascribed to the view that all improper references to prior criminal activities necessarily requires the award of a new trial as the only effective remedy... The nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required.

Id. at N. 4 (1165). (Emphasis added).

Applying these criteria to the testimony in the present case, the lack of intent to elicit information of other criminal conduct and the ambiguous reference to other crimes in an unresponsive answer preclude the declaration of a mistrial based on prejudice.

Lastly, the appellant argues the court erred in refusing to modify the sentence imposed on appellant. Imposition of a proper sentence is a matter vested in the sound discretion of the trial court, whose determination will not be disturbed on appeal but for a manifest abuse of discretion. Commonwealth v. Knepp, 307 Pa. Superior Ct. 535, 539, 453 A.2d 1016, 1018 (1982). The Superior Court has held that a sentence of imprisonment for a paraplegic is not excessive, per se. Commonwealth v. Landi, 280 Pa. Superior Ct. 134, 421 A.2d 442 (1980). Taking into consideration defendant’s criminal history, the nature of the crime charged, and the sentence imposed was considerably less than the possible maximum allowed under the applicable guidelines, the sentence imposed was appropriate.

If appellant is dissatisfied with his prison conditions, his remedy is to petition the prison authorities for a transfer to a facility better equipped to attend to his special needs. Commonwealth v. Landi, supra.

Judgment of sentence affirmed.

BROSKY, J., filed a concurring opinion.

BROSKY, Judge,

concurring:

While I agree with the result reached by the majority, I note that appellant has also raised the issue that there was additional evidence of other crimes to which defense counsel was ineffective for not objecting. Although appellant did not raise this issue in the “statement of questions, involved” portion of his brief, he has incorporated it into his argument that the trial court erred in failing to declare a mistrial when the Commonwealth introduced evidence of other crimes. For the reasons that follow, I would find that the issue has been waived.

First, appellant did not raise the issue his statement of matters complained of on appeal. See Pa.R.A.P. 1925(b). In order to preserve an issue of ineffectiveness of counsel, it must be raised at the earliest stage of the proceedings in which the defendant is represented by counsel other than that whose effectiveness is challenged. Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980).

Instantly, appellant had been appointed new counsel approximately three months before the filing of the statement of matters complained of on appeal. Arguably, this could be considered the first stage at which the ineffectiveness issue should have been raised. Had it been so raised, the lower court, if it had been necessary, could have held an evidentiary hearing on the issue and dealt with it in its opinion filed pursuant to Pa.R.A.P. 1925(a).

In any event, the issue unquestionably has been waived under Pa.R.A.P. 2116(a). This rule provides in relevant part as follows:

The statement of the questions involved must state the question or questions in the briefest and most general terms... This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.

As noted above, no issue of ineffective assistance of counsel is set forth in appellant’s statement of questions involved nor is suggested thereby. Thus, I conclude that this issue has been waived. See Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795 (1983).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    485 A.2d 506
    Charles VACCO, Appellant, v. George MARCUS, Rose Marcus, Carl Marcus, 122 Bar, A Partnership and the 122 Corporation.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed Dec. 14, 1984.

      Thomas M. Castello, Pittsburgh, for appellant.
    Joseph D. Talarico, Pittsburgh, for appellees.
    Before ROWLEY, TAMILIA and HESTER, JJ.
   PER CURIAM:

In September, 1967, a jury awarded appellant five thousand dollars as a result of an altercation with appellee, George Marcus. Appellant’s action was filed against George Marcus, individually and trading as 122 Lounge. The judgment was indexed solely against George Marcus.

On February 1, 1974, George and Rose Marcus, appellees, entered into a written agreement for the sale and transfer of the assets of the 122 Bar to the 122 Corporation which was owned by their son, Carl Marcus. It is the validity of this transfer that was before the lower court for determination.

Appellant filed his complaint in equity alleging inter alia that appellees intentionally caused the sale, transfer and conveyance of the assets of the 122 Bar to their son’s corporation for the purpose of defrauding appellant, a judgment creditor. Appellant alleged appellees transferred the assets in order to avoid attachment and execution, and did so without notification to appellant, in violation of the Pennsylvania Bulk Transfer Act. Appellant contends the business was a partnership between George and Rose Marcus subject to his prior judgment.

The parties agreed to submit the case to a Chancellor based upon a stipulated statement of facts and memorandums of law. The Chancellor entered a decree nisi, finding the 122 Bar was property owned by tenants by the entire-ties and, therefore, could not be subject to the debts of one of the spouses. The Chancellor’s findings were affirmed by a court en banc. Appellant appeals from this final decree.

Initially, we note that a Chancellor’s findings of fact, when affirmed by a court en banc, are comparable to a jury verdict and would only be set aside if the evidence is insufficient to support them, if they are premised on erroneous inferences and deductions, or if they constitute an error of law. Sobers v. Shannon Optical Co., 326 Pa.Super. 170, 473 A.2d 1035 (1984); Krosnar v. Schmidt, 282 Pa.Super. 526, 423 A.2d 370 (1980).

The threshold question is whether the presumption that property owned by husband and wife is held as a tenancy by the entireties has been rebutted. The lower court expounded that, in order to ascertain the existence of a partnership, one must resolve the duties of the husband and wife and the extent of their involvement in the business. The lower court focused on the intention of the couple in determining whether a partnership existed, found it unclear, and refused to imply the existence of a partnership. The court found neither an agreement between the couple to conduct their business as partners nor a partnership by estoppel.

We must disagree. .

The record discloses the state liquor license and fictitious name registration were in the names of both George and Rose Marcus. Clearly, this evidence in itself is not sufficient to rebut the tenancy by the entireties presumption. However, in light of the recent case Silco Vending Co. v. Quinn, 315 Pa.Super. 367, 461 A.2d 1324 (1983), we must consider appellees’ admissions, in conjunction with other indicia, as evidence that a partnership existed. Paragraph 5 of the stipulated statement of facts filed by the attorneys for the parties is as follows:

5. George Marcus and Rose Marcus were partners in a business entity known as the 122 Bar, where George Marcus and Rose Marcus carried on a restaurant and retail liquor business.

And further, Paragraph 6 of the stipulated statement also states:

6. George Marcus and Rose Marcus shared in the possession and control of the assets and in the profits generated from their operation of the 122 Bar.

In Silco Vending Co., the lower court did not find a husband-wife partnership operating a tavern, and therefore rejected appellant’s contention that the wife WAS bound by a contract, entered into by her husband, under the provisions of the Uniform Partnership Act. This Court reversed and remanded on the basis that the wife admitted the existence of a partnership in her answer and in her response to appellant’s interrogatories. Admissions of a partnership were made by the wife’s attorney during the course of trial as well. This Court specifically stated:

the facts that Mrs. Quinn was co-owner of the tavern as a tenant by the entireties and was co-holder of the license issued by the Pennsylvania Liquor Control Board for operation of the taproom provide a basis for at least the possibility that her averment of partnership in the business was true. To ignore her admissions under these circumstances was thus an abuse of discretion.

Id., 315 Pa.Superior Ct. at 372, 461 A.2d at 1327.

Similarly, appellees’ stipulation cannot be ignored when viewed in conjunction with the fact that the state liquor license and fictitious name registration were in both appellees’ names. ‘

Furthermore, this Court must respectfully disagree with the lower court’s finding that George Marcus’ deposition fails to support a finding of a partnership. In George Marcus’ deposition the following colloquy occurred:

Q. What was your capacity, what did you do before you sold the bar, at the bar?
A. In the same capacity I am in now, naturally. With just a different title, I guess you would call it. ■ One was manager, partnership/ownership. It was just a transfer management. That’s all. I am- doing no different now than I did before.
Q. How about your wife? Did she do anything?
A. She kept all the books. She managed the day. She managed the money. I didn’t do anything but manage the night business. Bring the money home and give it to her, and she would take care of it. I know nothing of it.

Appellee concedes his deceased wife’s active participation in the business operations, as well as his wife’s control over the bar’s financial profile.

In Northampton Brewery Corp. v. Lande, 138 Pa.Super. 235, 10 A.2d 583 (1939), this Court was presented with a similar factual setting. In that case, appellant and her husband leased property, obtained liquor licenses, and registered under the Fictitious Names Act “in the names of both.” They then opened a restaurant. A creditor of the wife obtained a judgment against her and attempted to execute on her interest in the business. In affirming the lower court’s conclusion that a partnership existed, we held that “the element of carrying on a business or commercial enterprise for profit” served to differentiate appellant’s partnership from a tenancy by the entireties. The joint lease, bank accounts, and appellants activities confirmed the existence of a partnership.

The lower court herein found Northampton Brewery Corp. too restrictive, stating that “carrying on a business for profit” does not, ab initio, make a partnership. The lower court decided the salient consideration in determining the existence of a partnership is a couple’s sharing of profits and losses. The trial court found this element lacking herein. We cannot agree in view of the fact that appellee’s deposition acknowledges a “partnership/ownership.”

Finally, we cannot ignore the plain language of Silco Vending Co., which finds a party’s admissions, in conjunction with other supporting evidence, dispositive on the issue of a partnership. We thus find that the lower court erred in ruling that the property was held as a tenancy by the entireties.

Order vacated; case remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.


author: OLSZEWSKI, Judge:

text:
    485 A.2d 769
    Leslie ANMUTH, Appellant, v. Mr. & Mrs. Dean CHAGAN and Franklin A. Chagan. Leslie ANMUTH, Appellant, v. Mr. & Mrs. Dean CHAGAN and Joyce Chagan, Executrix of the Estate of Franklin Chagan, Deceased.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1984.
    Filed Nov. 9, 1984.
    Reargument Denied Jan. 18, 1985.
    Petition for Allowance of Appeal Denied Aug. 7, 1985.

      Allen L. Feingold, Philadelphia, for appellant.
    William F. Sutton, Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This case has bounced from court to court, landed one lawyer before the Disciplinary Board and consumed nearly ten years of the parties’ lives. At issue is a dog bite. Two suits followed that bite, Leslie Anmuth v. Mr. and Mrs. Dean Chagan and Franklin A. Chagan at No. 76-19319 and Leslie Anmuth v. Mr. and Mrs. Dean Chagan and Joyce Chagan, Executrix of the Estate of Franklin Chagan at No. 77-13517. The cases, identical in substance, were consolidated at plaintiff-appellant’s request under No. 76-19319.

Appellant filed a praecipe for arbitration under No. 77-13517. The arbitrators found for appellant and against Dean Chagan in the amount of $250.00. They exculpated Mrs. Dean Chagan and Joyce Chagan, Executrix. Judgment was entered on November 13, 1978 at No. 77-13517.

On November 24, 1978, Louis Slawe, Esquire, for the appellant, hand-carried a petition to remand and set aside Report and Award of Arbitrators on the ground that only file No. 77-13517 had been before the arbitrators. That same day, appellant filed a Rule to Show Cause. No appeal was filed at that time. On December 13, 1978, the thirtieth day passed, ending the statutory period for an appeal from the arbitrator’s award.

Appellees filed Answers. The Honorable Horace A. Davenport denied appellant’s Petition to Remand. Two days later, on February 22, 1979, plaintiff-appellant filed an Appeal from the Report and Award of Arbitrators. Appellees moved to quash the appeal. Appellants answered the Motion to Quash and attached as exhibit'a document purported to be a copy of the “Rule to Show Cause” dated November 24, 1978. That copy of the Rule bears intact the phrase “All Proceedings to Stay Meanwhile.” Supp. Reproduced Record at 101b (appended hereto at la).

On June 28, 1979, the lower court quashed the appeal as untimely. Judge Davenport wrote that the proceedings had not been stayed by the November Rule, that the phrase “All Proceedings to Stay Meanwhile” had been stricken from the original Rule, and that the attempted appeal was thus untimely filed. R. 59.

Appellant petitioned for reconsideration of the June 28, 1979 Order. On July 25, 1979, she filed notice of appeal to the Superior Court. By Order of November 27, 1979, the petition was denied.

The Superior Court reversed the June 28, 1979 Order. On remand, this Court directed the lower court to hold an evidentiary hearing to determine what did happen:

First, whether the copy of the rule with the stay of proceedings not crossed out was signed by Judge Avrigian and immediately returned to appellant’s counsel; Second, under what circumstances and by whom the stay of proceedings was crossed out ...
Third, when appellant first had notice that the stay of proceedings has been crossed out.

R. 83a; Anmuth v. Chagan, 295 Pa.Super. 32, 39, 440 A.2d 1208, 1211 (1982).

The evidentiary hearing was held March 11, 1982, By opinion and order dated March 10, 1983, Judge Davenport reinstated the Order of June 28, 1979 quashing Anmuth’s .appeal. In response to this Court’s inquiry, Judge Davenport found:

(1) Judge Avrigian may have signed the rule without crossing out the stay but did so with the understanding that counsel conform his copy to the original; (2) Judge Avrigian crossed out the Stay consistent with his normal procedure and (3) appellant had notice that the rule had been issued without a stay____

R. 96a. This appeal follows.

Appellant argues that absent notice of any change in the stay, she had a right to rely on the stay of proceedings. Appellant’s Brief at 4. Assuming the proceedings were stayed by the November Rule, February 22, 1979 appeal was timely filed. The appeal timely, the order quashing that appeal must fall.

The argument above turns on notice. Appellant claims that she relied to her detriment on lack of notice of change in the stay. Judge Davenport, finding that appellant had notice that the Rule had been issued without a stay, rejected her claim: On appeal, we will not disturb that finding unless our review of the record reveals a clear abuse of discretion or error of law below. Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982).

Judge Spaeth, for the Superior Court, pointed out the apparent inconsistency in appellant’s argument. Appellant, maintaining all the while that she had lacked notice of any change in the stay, had attached to her first appellate brief a copy of the Rule with the stay crossed out. As Judge Spaeth explained:

Exhibit “C” of appellant’s Brief to us appears to be a copy of the original rule____ There is, however, one difference between the original Rule [attached hereto as lb] and appellant’s Exhibit “C” [attached hereto as lc] that puzzles us and may be significant. The original rule has on it a Prothonotary’s time stamp (“Nov. 29 9:19 AM ‘78”) and an initialed stamp indicating that the rule was docketed by “J.M.S.” Neither of these stamps appears on appellant’s Exhibit “C”. The question therefore arises: How did appellant get a copy of the original rule, with the stay of proceedings crossed out, apparently before the original rule itself was docketed?

Anmuth v. Chagan, 295 Pa.Super. at 38, 39, 440 A.2d at 1211 (1982) (emphasis in original).

Judge Davenport addressed this issue in his opinion on remand.

This colloquy between counsel highlights a major difficulty with this case. Appellant maintains that she had no notice that the Rule had been issued without the stay because her copy of the Rule left the stay intact. Yet on appeal to the Superior Court a copy of the Rule with the stay crossed out appears in Appellant’s brief. The question is how did appellant receive such a copy of the Rule. Appellant was directed to answer this question specifically by the Superior Court in its remand, but she only interjected a “third alternative” that perhaps Judge Avrigian signed the rule and two copies.
This Court is unable to comprehend the significance of the “third alternative” because Mr. Slawe’s affidavit only refers to the Rule and one copy. Other than accounting for a second copy of the Rule, Appellant fails to specifically address the question of how she obtained another, different copy from the one she supposedly possessed.

Anmuth v. Chagan, Nos. 76-19319 and 77-13517, Court of Common Pleas of Montgomery County, slip op. at 10 (March 10, 1983) (citation omitted). The lower court found that appellant failed to advance a credible explanation for her possession of the Rule with stay crossed out. We see no reason to disturb that finding.

It is uncontested that the appeal period ran without the filing of an appeal from the arbitrator’s award. Appellant, to excuse her failure to file a timely appeal, had to establish that she had relied on stay of proceedings granted by Judge Avrigian. See Anmuth v. Chagan, 295 Pa.Super. at 39, 440 A.2d at 1211. We have before us a copy of the Rule with stay excised. It would seem appellant possessed that copy before the original Rule was docketed. We must conclude therefore that appellant either knew or had reason to know that the stay had, in fact, been crossed out. Common sense dictates no less.

The lower court, reinstating the order quashing the appeal from the judgment order, followed Judge Spaeth’s directive.

Order affirmed.

McEWEN, J., concurs in the result.

      . Plaintiff-appellant was bitten by the Chagan family dog on July 24, 1975. The incident occurred on property owned by Franklin Chagan. Chagan died on October 24, 1975 and Joyce Chagan received letters as executrix of his estate on November 21, 1975. The second action at No. 77-13517 reflected this change with the substitution of Joyce Chagan for Franklin Chagan and insertion of a sentence which alleged that Franklin Chagan had died and Joyce Chagan was executrix of his estate. As Judge Spaeth noted, “there was really only one case in the lower court....” Anmuth v. Chagan, 295 Pa.Super. 32, 34 n. 1, 440 A.2d 1208 n. 1 (1982).

      . Appellant explains that she sought a decision on the basis of both files. She wished either to have the award set aside, thus allowing a new arbitration on both files, or to appeal the award and proceed to trial on both cases.

      . The thirty day period for appeal follows the directive of Rule 247.1 (rescinded) and §§ 7361(d) and 5571 of the Judicial Code.

      . During these proceedings, Judge Davenport’s law clerk filed a complaint with the Disciplinary Board. The clerk alleged that Allen L. Feingold, counsel for the plaintiff-appellant had forged the signature of the Honorable Mason Avrigian on a copy of the Rule. The Disciplinary Board, by letter dated November 24, 1980, concluded “a final recommendation has been made to dismiss the complaint as lacking substance.”


author: SPAETH, President Judge: ROWLEY, Judge,

text:
    485 A.2d 776
    COMMONWEALTH of Pennsylvania v. Cornell GALLOWAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 19, 1984.
    Filed Nov. 23, 1984.

      Penn B. Glazier, Lancaster, for appellant.
    Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for second-degree murder. Appellant raises twenty issues on appeal. The trial court’s opinion adequately addresses issues I-IV, VI, VIII-XIV, and XVI-XIX. Consequently, we address only the remaining issues. Of these, issues V and VII, which concern the admissibility of certain hearsay evidence, and issue XX, which concerns the propriety of appellant’s sentence, are without merit. Issue XV concerns appellant’s right to a charge on “unreasonable belief” voluntary manslaughter. The law on this issue has changed since appellant’s trial and the trial court’s opinion. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983). We therefore remand for further consideration in light of Carter.

On the morning of May 30, 1971, appellant went to his wife’s apartment, where she gave him his .38 caliber pistol and six bullets, which she had taken with her when she and appellant separated. Later, about 4:00 p.m., appellant returned to the apartment with George Quinn, a friend. Appellant and his wife began arguing. When appellant asked his wife who had helped her move into the apartment, she named three persons, one of them Bobby Lee Jones. Appellant told her to telephone Jones. At first she would not, and they exchanged blows. At one point appellant’s wife fell, and Quinn pulled appellant from her. According to the wife’s statement to the police, appellant told her that he “was tired of these young punks trying to act like men. If they wanted to act like men he would treat them like men,” N.T. 114-15, and, further, that she was going to “get it after he took care of Bobby,” N.T. 121, but she “could get it first if [she] wanted it that way,” id. In the end, she called Jones at the apartment of his girlfriend Shirley Johnson, in the building next door, and asked him to come to her apartment because appellant wanted to speak with him. When Jones entered the apartment, appellant punched him, and they started fighting. Appellant’s wife left the apartment through the bedroom window and ran to Shirley Johnson’s apartment, where she asked Johnson to call the police. Various neighbors testified to hearing shots coming from appellant’s wife’s apartment, and identified appellant and Quinn as the two men leaving the apartment. Appellant was said to have covered his face with a raincoat. Jones was found minutes later on the floor of the apartment. He died of two .38 caliber bullet wounds to the head and chest. Quinn was taken into custody the same day; appellant was finally arrested in Pittsburgh on July 14, 1971.

Appellant’s issue Y concerns the following testimony by his wife on direct examination:

Q. You ran over to Shirley Ann’s and what did you tell her?
A. I told her to call the cops because Cornell [appellant] and Bobby [Lee Jones] were fighting.
Q. Is that what you told Shirley—
SÍ! J¡{ Jj< % S}S
THE WITNESS: I ran up the steps. I don’t know if I had to open the door or Shirley Ann opened the door, if I banged or whatever but anyway I told her to call the cops. I don’t know what exactly I said. I told her to call the cops because they were fighting.
BY MR. RANCK [the District Attorney]:
Q. Have you looked at the statement to refresh your recollection?
A. I told her Cornell was going to shoot Bobby.
N.T. 123-124.

Defense counsel objected that this testimony was inadmissible as hearsay and an opinion, N.T. 125, and moved for a mistrial. The trial court ruled that the statement was admissible as an excited utterance, and denied the motion for a mistrial. N.T. 127.

When evidence is challenged as hearsay, the first inquiry should be whether in fact it is hearsay. If it is, the next inquiry is whether it is admissible as within an exception to the rule against héarsay evidence.

Here, appellant’s wife testified that she remembered making a certain statement to Shirley Johnson. Arguably, this testimony was not hearsay: Appellant’s wife was on the stand, under oath, and subject to cross-examination and the jury’s observation of her demeanor. Her testimony that she remembered doing something — going to Johnson’s apartment — was not hearsay. Why should her testimony that she remembered saying something be any different? Nevertheless, “the traditional view ha[s] been that a prior statement of a witness is hearsay if offered to prove the happening of matters asserted therein,” McCormick on Evidence 744 (3d ed. 1984), and while “[t]his position has increasingly come under attack in recent years on both logical and practical grounds,” id,., it appears to be the law in Pennsylvania. See Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982) (prior inconsistent statement of witness not admissible as substantive evidence); Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982) (plaintiffs testimony as to what physician said on telephone hearsay; not rendered admissible because physician testified). This case is not the occasion to re-examine that law, for the Commonwealth does not argue that the statement was not hearsay, but it is appropriate to note that the hearsay with which we are here concerned is by its nature subject to being tested for reliability with more confidence than are many other sorts of hearsay. With this in mind, we may turn to our next inquiry — whether, although hearsay, the wife’s prior statement was admissible as within an exception to the rule against hearsay evidence.

As indicated, the trial court ruled that the wife’s statement was within the excited utterance exception. To come within this exception the statement must be

a spontaneous declaration by a person whose mind has been suddenly made subject to an over-powering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.
Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).

And see Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978); Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975). Appellant does not argue that his wife’s statement was not “suddenly made subject to an over-powering emotion caused by some unexpected and shocking occurrence.” His wife’s own testimony, and that of Shirley Johnson, Detective Simms and Captain Henry, established that she was bordering on hysteria, N.T. 80, very nervous and quite upset, N.T. 165, frightened and angry, N.T. 80, 135, 245. Nor does he argue that the statement was not made “so near the occurrence both in time and place” as to exclude the possibility of its being reflective rather than excited. Appellant’s wife ran directly to Johnson’s apartment, where she made the statement, and the statement related to, and arose out of, the exciting event. What appellant does argue is that the statement should not have been admitted because his wife did not perceive the event about which she spoke.

It is of course fundamental that before a witness may testify to having perceived an event, it must appear that the witness had the opportunity to, and did in fact, perceive it. McCormick, supra at 23. And this principle is equally applicable to the declarant who is quoted by a witness testifying to hearsay. Id. Attention must be paid, however, to just what it is that the witness, or declarant, must have perceived. If the witness says, “I saw X,” and it appears that the witness could only have seen Y, then the witness is incompetent to testify to having seen X. But this abstract statement assumes that X and Y are different. Attention to the facts, that is, to the entire context of the witness’s testimony as shown by all the evidence, may show that X and Y are related in such a way that one who perceived Y may be said to have been able to perceive X.

The necessity of considering the relationship between what the witness testifies to having seen (X) and what the witness could have seen (Y) is implicitly recognized in Allen v. Mack, supra. There, after stating that it must appear that “[the declarant] has just participated in or closely witnessed,” i.e., must have perceived, the exciting event, the Court goes on to say that the declarant’s statement must “[have been] made in reference to some phase of that occurrence which he perceived.” 345 Pa. at 410, 28 A.2d at 784 (emphasis added). The point is more explicitly recognized in Commonwealth v. Pronkoskie, supra, 477 Pa. at 139 n. 6, 383 A.2d at 861 n. 6, where the Court quoted this passage from McCormick on Evidence, 707-08 (2d ed. 1972):

Must the declarant meet the tests of competency for a witness? In a modified manner the requirement that a witness have had an opportunity to observe that to which he testifies is applied. Direct proof is not necessary; if the circumstances appear consistent with opportunity by the declarant, this is sufficient. If there is doubt the question is for the jury. Especially in cases where the declaration is of low probative value, however, it is usually held inadmissible if there is no reasonable suggestion that the declarant had an opportunity to observe.
(Footnotes omitted.)

Various cases illustrate situations where the evidence was not sufficient to permit a finding that the declarant could have seen what the excited utterance referred to. In Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968) (plurality opinion), it was held error to admit a statement by an unidentified bystander where it would be “mere speculation and surmise ... whether or not the declarant ... actually perceived the engine coming out fast with no lights on it.” Id., 428 Pa. at 495, 240 A.2d at 74. And where the defendant in a personal injury action did not make an offer of proof as to what the two declarants actually said to the police officer at the scene and did not establish that the declarants had seen the accident, the statements were not admissible. Williamson v. Philadelphia Transp. Co., 244 Pa.Super. 492, 368 A.2d 1292 (1976). In Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952), there was no evidence to show that the child declanant was awake during the attack on her father; the statement was also made after too much time, had passed for it to be spontaneous.

In the present case, if the declarant’s — appellant’s wife’s — statement had been, “I told her Cornell had just shot Bobby,” then appellant’s objection to the statement would be well taken. For the evidence is that his wife did not see the shooting; she had left her apartment and gone to Shirley Johnson’s next door. Decisions such as Carney, Williamson, and Noble would therefore require exclusion of her statement. However, the wife’s statement was, “I told her Cornell was going to shoot Bobby,” and when this statement is put in the context of all the evidence, we think it was closely enough related to what the wife had perceived to make her a competent declarant. Specifically, the wife knew, on the basis of her own perceptions, that earlier that day she had given appellant his pistol and six bullets; that she and appellant had been quarreling in her apartment, appellant saying that he was going to “[take] care of Bobby”; and that when Bobby came to the apartment, appellant punched him and the two men started fighting. On this record, we conclude that the trial judge was entitled to regard the wife’s statement as “made in reference to some phase of that occurrence which [s]he perceived,” Allen v. Mack, supra, and, therefore, to admit it as an excited utterance.

This conclusion, however, depends upon an understanding of the wife’s statement, which we should state explicitly. Suppose that the wife’s statement to Shirley Johnson had been “Cornell and Bobby are fighting and Cornell says he’s going to get Bobby.” Plainly, such a statement would be competent as based on the wife’s perception. In terms of the abstract example supposed earlier, X (the statement) and Y (the perception) would be identical, the one mirroring the other. An inherent feature of an excited statement, however, is that precisely because it is excited, such exact identity, or mirroring, may not, and often if not usually will not, occur. It is in recognition of this fact that Allen countenances “reference to some phase” of the event perceived, and McCormick says that “the requirement that a witness have had an opportunity to observe that to which he testifies” should be applied to a declarant such as appellant’s wife “[i]n a modified manner.” In concluding, as we have, that the wife’s statement was “made in reference to some phase of that occurence which [s]he perceived,” we have understood the wife’s statement as a “shorthand,” or compressed, account of what she had just perceived.

We have no hesitancy in so understanding the wife’s statement. A full account would have been: “Cornell and Bobby are fighting. Cornell says he’s going to get Bobby. Since I know he’s got a gun, I understand him to mean he’s going to shoot Bobby.” Under the pressure of her excitement, the wife simply omitted the preliminaries, proceeding directly to the conclusion, “Cornell is going to shoot Bobby.” Nevertheless, the fact that the wife did express herself in this manner implicates the opinion evidence rule, and therefore some further discussion is required.

The basis of the opinion evidence rule, broadly stated, is that opinion testimony by a lay witness, as distinguished from an expert witness, should be excluded because witnesses should give the facts — tell what they perceived— and not their opinions. However, as many courts and commentators have had occasion to point out, there is no clear line between a “fact” and an “opinion.” See Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978) (collecting authorities); and see McCormick, supra at 26-32. Accordingly, the trial court has considerable discretion in ruling upon whether testimony is “fact” or “opinion” testimony, and if “opinion,” whether it should be admitted or excluded. Lewis v. Mellor, supra, 259 Pa.Superior Ct. at 515, 393 A.2d at 944; McCormick, supra at 27. This latitude is particularly appropriate to a ruling on the admissibility of an excited utterance, for someone who is excited is especially likely to speak in conclusory terms. In such a case, therefore, the opinion rule “should be applied sparingly, if at all ____” McCormick, supra at 858.

In most of its aspects, the wife’s statement was not an opinion, but rather, as just discussed, a shorthand description of what she had just perceived. The statement did include some element of opinion in that it expressed the wife’s conclusion regarding what would be the outcome of the fight. However, this did not require exclusion of the statement. Rather, several factors supported its admission. The wife had personal knowledge of the facts upon which she based her conclusion. Her testimony, including her conclusion, was rationally based upon that knowledge. And the expression of her conclusion could in no way mislead or confuse the jury, for the basis of it was plain on its face, and could be made still more plain by cross-examination.

In these circumstances, the statement would be admissible in a federal court, see Fed.R.Evid. 701, and the editors of McCormick, supra, have concluded from their review of the cases that in most state courts “the actual practice in the trial of cases is becoming, if indeed it has not always been, far more liberal than the older formulas____” Id. at 28. And see Lewis v. Mellor, supra. See also Campbell v. Gladden, 383 Pa. 144, 118 A.2d 133 (1955) (victim’s statement, “they must have backed out in front of me,” admissible; confirmed by physical facts). Cf. Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974) (victim’s statements to her mother on telephone, five minutes before her death, that defendant would not let her leave the apartment and that he was going to kill her admissible as present sense impression). We therefore conclude that the trial court did not abuse its discretion in admitting the statement, and, accordingly, did not err in refusing appellant’s motion for a mistrial.

This case is distinguishable from Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938). There, one of the victims opened a letter bomb, and after he had been seriously injured by the explosion, told his wife, “Fugmann done this.” Id., 330 Pa. at 6, 198 A. at 102. The statement was held inadmissible as mere conjecture since the basis for the declarant’s opinion was not apparent:

Utterances relating to some distinct prior circumstance cannot be received. Maloney’s exclamation must have been a conclusion from something that had taken place between him and Fugmann some time before. As Wig-more says (Vol. 3, sec. 1750, page 751): “The [spontaneous] utterance must relate to the circumstances of the occurrence preceding it.” Maloney’s utterance — so far as it involved Fugmann — did not relate to the circumstance of the occurrence (the explosion) which preceded it. It related to something which had preceded the explosion. (See Agassiz v. Tramway Co., 21 W.R. 199.)
Id., 330 Pa. at 16, 198 A. at 106.

Here, in contrast, it is apparent that the wife’s statement did rationally “ ‘relate to the circumstances of the occurrence preceding it.’ ” From all that appeared, Maloney’s statement blaming Fugmann may have been based on something (who knew what) that someone (unidentified) had told him. Appellant’s wife’s statement, however, was caused by, and related to, only what she herself had just seen.

Appellant’s issue YII concerns testimony by Shirley Johnson that appellant’s wife came running to her apartment and said:

A. Shirley Ann, call the cops, Bobby and Cornell are fighting and he is going to either shoot me or kill me, I don’t remember exactly what words she used, and she left.
N.T. 167.

It should be apparent from the foregoing discussion, without more, that in admitting this testimony the trial court did not abuse its discretion.

Appellant’s issue XV concerns the trial court’s refusal to grant his requested point for charge that “[i]f you believe that the Defendant acted out of a fear for his life, even if that fear was totally unreasonable, then this would be voluntary manslaughter and not murder of the second degree.” The trial court held in its opinion that it had adequately charged the jury on this point when it discussed fear as one of the emotions included in “passion” as an element of “heat of passion” voluntary manslaughter. Slip op. at 15-16. We are not persuaded by this reasoning, for “unreasonable belief” voluntary manslaughter is not the same as “heat of passion” voluntary manslaughter. Both theories of voluntary manslaughter have the common element of an absence of malice. Commonwealth v. Cain, 484 Pa. 240, 398 A.2d 1359 (1979). But the defendant’s lack of malice appears in different ways.

Heat of passion voluntary manslaughter requires that the defendant acted as a result of serious provocation. Whether the provocation was sufficient to support the defense of voluntary manslaughter is determined by an objective standard — whether a reasonable man, confronted by the same series of events, would become impassioned to the extent that his mind was incapable of cool reflection. Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972). “Passion” includes any emotions of the mind that render it incapable of reflection, such as anger, rage, sudden resentment or terror. Commonwealth v. Harris, 472 Pa. 406, 372 A.2d 757 (1977). Once it is found that the defendant was confronted with sufficient provocation, the focus shifts to the defendant’s response: did the defendant actually act in the heat of passion when he committed the homicide; did the provocation directly lead to the killing of the person responsible for the provocation, or was the individual killed negligently or accidently in the course of the defendant’s endeavor to kill his provoker; and was there insufficient “cooling time,” thus preventing a reasonable man from regaining his capacity to reflect. See Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977); Commonwealth v. McCusker, supra.

Unreasonable belief voluntary manslaughter requires that the defendant have the subjective belief that the killing is justified. For a person to have justifiably used deadly force in defense of himself, three factors must be found to have existed:

First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. Third, the actor must have violated no duty to retreat.
Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980) (citations omitted).

If the justification of self-defense has not been found, a killing may be voluntary manslaughter if the defendant actually believed that the killing was necessary in self-defense and the killing was committed pursuant to that belief. Commonwealth v. Nau, 473 Pa. 1, 373 A.2d 449 (1977). When any one of the three requirements for the use of deadly force in self-defense is not made out, a conviction for voluntary manslaughter may result. See Commonwealth v. Arce, 273 Pa.Super. 80, 416 A.2d 1098 (1979) (use of knife not reasonable where no weapon directed at defendant); Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979) (defendant was aggressor where evidence showed that he kicked in door panel and fired shots into home); Commonwealth v. White, 492 Pa. 489, 424 A.2d 1296 (1981) (jury could have found violation of duty to retreat where decedent let defendant get up after fight, defendant retrieved gun from car, and shot decedent).

Unreasonable belief voluntary manslaughter, therefore, does not entail a finding that serious provocation caused sudden passion, with “passion” being interpreted as fear. A person who commits heat of passion voluntary manslaughter must not have been able to think clearly enough to control his actions as a result of an objectively serious provocation. A person who commits unreasonable belief voluntary manslaughter may hold his mistaken belief about the necessity for self-defense without being subject to the strong emotion of sudden passion, or may be mistaken because he was the aggressor or violated a duty to retreat. While it is possible to conceive of situations where both theories of voluntary manslaughter are applicable, they are not coextensive. The Pennsylvania Standard Jury Instructions contain separate instructions for heat of passion voluntary manslaughter and unreasonable belief voluntary manslaughter. The trial court’s instruction was substantially the same as the proposed instruction on heat of passion voluntary manslaughter, N.T. 267-268, but the court gave no additional instruction on unreasonable belief voluntary manslaughter.

However, the trial court’s refusal of appellant’s point for charge on unreasonable belief voluntary manslaughter was not error unless appellant was entitled to such an instruction because unreasonable belief voluntary manslaughter had been made an issue in the case, and the evidence could reasonably support a verdict finding it. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), overruling Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978) (which had held that murder defendant has unconditional right to unreasonable belief voluntary manslaughter charge upon request). At this point, however, we encounter some difficulty.

Carter was not decided until after this appeal was taken and the parties’ briefs had been filed, and consequently it is not addressed either by the trial court in its opinion or by the parties in their briefs. Nevertheless, we must apply Carter in deciding this appeal, for the opinion in Carter does not specify that the rule it announces is prospective only. Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983). Our difficulty is that we find ourselves unable to apply Carter for two reasons. First, we are unable to determine from the record whether unreasonable belief voluntary manslaughter was made an issue in this case. Appellant himself did not testify. Certain questions asked by appellant’s counsel in examining appellant’s wife suggest that counsel was laying a foundation for arguing unreasonable belief voluntary manslaughter, N.T. 136 (appellant shorter and physically smaller than both Jones and Quinn), and there was testimony that after appellant’s initial punch, the victim and appellant were fighting, N.T. 120, and that the police found a large glass lamp and a glass ashtray on the floor and tables and chairs knocked over, N.T. 216. But whether counsel did argue unreasonable belief voluntary manslaughter is not apparent, for the summations were not transcribed — at least, a transcript is not included in the record transmitted to us. And second, we do not have the benefit of the trial court’s opinion on whether the evidence could reasonably support a verdict finding unreasonable belief voluntary manslaughter.

In these circumstances we have concluded that we should vacate the judgment of sentence and remand so that the trial court may hear argument on whether., in light of Commonwealth v. Carter, supra, appellant’s point for charge on unreasonable belief voluntary manslaughter should have been granted. No evidence should be taken. If the trial court concludes that the point was improperly refused, appellant should be granted a new trial. If the evidence warrants the charge at the new trial, the trial court should read the standard charge for unreasonable belief voluntary manslaughter. Pennsylvania Standard Jury Instruction, 15.2503B (Crim) Voluntary Manslaughter—Unreasonable Belief (as a Lesser-Included Offense of Murder), pp. 230-231. (Subcommittee Draft—February 8, 1975). Otherwise, the judgment of sentence should be reinstated.

Finally, by his issue XX appellant argues that his sentence was manifestly excessive and that the sentencing court did not comply with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), because it did not make specific findings on the record with respect to the twelve factors to be considered for probation. 42 Pa.C.S. § 9722. We find this argument without merit.

Judgment of sentence vacated and case remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I join in President Judge Spaeth’s opinion and the decision to vacate the judgment of sentence and remand for further proceedings. However, I write separately to emphasize that appellant’s requested point for charge, as written, (Majority opinion at p. 237), is not a correct statement of the law regarding voluntary manslaughter. Therefore, the trial court did not err in refusing the specific instruction presented by appellant. Nonetheless, since appellant’s request may be read as an attempt to persuade the trial court to instruct the jury regarding “unreasonable belief” voluntary manslaughter, as well as “heat of passion” voluntary manslaughter, the majority properly considered that issue.

      . This numbering corresponds to that in appellant's Statement of Questions Involved. Brief for Appellant at 3-8.

      . This statement is repeated in the current edition of McCormick, at 858.

      . The relevant statutory sections are:
      18 Pa.C.S. § 2503. Voluntary manslaughter
      (a) General rule. — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
      (1) the individual killed; or
      (2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
      (b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.
      and 18 Pa.C.S. § 505. Use of force in self-protection
      (a) Use of force justifiable for protection of the person. — The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
      (b) Limitations on justifying necessity for use of force.—
      ******
      (2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
      (i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
      (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take,____

      . See Pennsylvania Standard Jury Instructions, 15.2503A (Crim) Voluntary Manslaughter—Serious Provocation (As a Lesser Included Offense of Murder), pp. 226-229; and 15.2503B (Crim) Voluntary Manslaughter—Unreasonable Belief (As a Lesser Included Offense of Murder), pp. 230-231. (Subcommittee Draft—February 8, 1975).


author: CIRILLO, Judge:

text:
    485 A.2d 785
    COMMONWEALTH of Pennsylvania, Appellant, v. Eugene M. BOLDEN.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1984.
    Filed Dec. 5, 1984.
    Petition for Allowance of Appeal Denied April 24, 1985.

      Stuart B. Suss, Assistant District Attorney, West Chester, for Commonwealth, appellant.
    William L. Howard, Malvern, for appellee.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal by the Commonwealth from an order dismissing rape, burglary, indecent assault, and simple assault charges against appellee, Eugene Bolden, on the basis of Pa.R.Crim.P. 1100. The case at bar presents the issue of the application of Rule 1100 to judicial delay. Initially, it must be noted that we are guided in our decision by the sentiments expressed by the Pennsylvania Supreme Court in Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72-73, 425 A.2d 367, 369-70, 371 (1981):

Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,” Commonwealth v. Brocklehurst, 491 Pa. 151, 154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, n. 4, 409 A.2d 308, n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
... So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective rights of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

For the reasons set forth below, we reverse the order of the trial court, and remand for trial.

A criminal complaint charging appellee with rape, burglary, indecent assault, aggravated assault, simple assault, and recklessly endangering another person was filed on May 21, 1983. On June 3, 1983, a preliminary hearing was held. The presiding district justice concluded that a prima facie case existed on all charges. Appellee filed a petition for writ of habeas corpus and to quash information on July 6, 1983, claiming error in finding a prima facie case on the charges of aggravated assault and recklessly endangering another person. By agreement of counsel, the trial court entered an order dismissing the recklessly endangering another person and aggravated assault charges on August 10, 1983. The focus of the issues involved in this appeal stem from the events following the entry of this order.

On the same date the trial court entered the order, an employee of the Clerk of Courts of Chester County erroneously recorded in the court file that all charges against appellee had been quashed. This resulted in the case being dropped from the Chester County computer that is used for monitoring cases, and the .case never receiving a listing for trial. Further, a detainer lodged against appellee was quashed, discharging him from prison.

On October 6, 1983, a detective from the West Chester Police Department informed the District Attorney’s office that the appellee was out of prison and on the streets. Once aware of this, the District Attorney discovered the charges had been dismissed and the detainer removed. A review of the court records revealed the error made on August 10. Arrangements were made with the Clerk of Court’s office to have the case re-opened. By early November, 1983, the case had not been given a trial date. Realizing the Rule 1100 rúndate was approaching, the Commonwealth filed a timely application for an order extending the time for commencement of trial on November 16, 1983. A hearing on the application was held on December 7, 1983, at which time the Honorable Lawrence Wood denied the application and granted appellee’s application for dismissal. A hearing on the Commonwealth’s application for reconsideration resulted in Judge Wood reaffirming his order of December 7.

The reasons for the trial court’s order are grounded in the Chester County criminal case listing policy. Fairly extensive testimony was presented by the Commonwealth regarding the procedures under the policy.

The criminal trial sessions schedule is prepared by the Criminal Court Administrator in conjunction with the President Judge for Chester County. Cases are listed and called for trial according to complaint dates, i.e., cases are listed in chronological order using the complaint date as the point of reference. These lists are prepared one month in advance of the commencement of any given trial session.

There are two ways in which a case may be listed out of the complaint date order. The first is if a murder case is involved; they are given priority listing. In any other instance, a case may be given a special listing only by court order. The trial court’s opinion noted that, “Such a procedure has been followed in at least one other case.” Slip op. at 3.

In Chester County, criminal trial sessions were scheduled for a two week period beginning October 17, 1983, and then not again until early December. At the Rule 1100 hearing involved in the instant case, the testimony of an employee of the Criminal Court Administrator’s Office showed that there was a possibility that a case listed during the week of October 24th could have been called for trial before the end of October. However, as of the beginning of October, there were no available trial dates.

The trial court determined that the Commonwealth failed to exercise due diligence under the circumstances. Specifically, the court was of the opinion that the District Attorney should have procured a court order instructing the Criminal Court Administrator to give appellee’s case a special trial listing, and that the clerical error of dismissing the case on August 10 did not excuse the Commonwealth from exercising due diligence. As a result, the appellee’s application for dismissal pursuant to Rule 1100(f) was granted.

The Commonwealth’s application for extension of time pursuant to Rule 1100(c) was timely filed. Therefore, the only question to be decided in this appeal is whether the Commonwealth exercised due diligence in its attempts to bring appellee to trial. Commonwealth v. Lewis, 287 Pa. Super. 64, 429 A.2d 721 (1981) (allocatur denied). It is now axiomatic that the burden is upon the Commonwealth to prove, by a preponderance of the evidence, that it has met the requirements of Rule 1100(c). Commonwealth v. Dancy, 317 Pa.Super. 578, 464 A.2d 473 (1983); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). When, despite the exercise of due diligence the Commonwealth cannot bring a defendant to trial within the prescribed time period, a court may properly grant an extension. Commonwealth v. Colon, supra; Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981). “Judicial delay or scheduling may justify an extension of time----” Commonwealth v. Lewis, supra, 287 Pa.Super. at 67, 429 A.2d at 23. See also Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

For judicial delay to act as a basis for an extension, there must be

a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Commonwealth v. Mayfield, supra, 469 Pa., at 222, 364 A.2d at 1349-50. Extensions have frequently been granted for judicial delay in the form of overcrowded dockets. See, e.g., Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983); Commonwealth v. Parnell, 333 Pa.Super. 256, 482 A.2d 271 (1984); Commonwealth v. Nichols, 328 Pa.Super. 308, 476 A.2d 1344 (1984); Commonwealth v. Kuhn, 327 Pa.Super. 72, 475 A.2d 103 (1984); Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982); Commonwealth v. Lewis, 287 Pa.Super. 64, 429 A.2d 721 (1981); Commonwealth v. Royer, 256 Pa.Super. 361, 389 A.2d 1165 (1978). However, situations involving judicial or clerical errors are infrequent. See, e.g., Commonwealth v. Bennett, 320 Pa.Super. 150, 466 A.2d 1362 (1983) (denying an extention).

Recent decisions of our courts have shown that the May-field requirement “must be given a realistic construction.” Commonwealth v. Crowley, supra, 502 Pa. at 400, 466 A.2d at 1013. To do otherwise

... ignores the realities of crowded criminal and civil dockets which overburdened Common Pleas courts must deal with on a day-to-day basis. Rule 1100 was designed to promote the administration of criminal justice within the context of our entire judicial system, not to render that system hostage to its own closed logic. The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice. See, e.g., Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980) (dissenting opinion, Larsen, J., in which Flaherty, J. joined).

Id., 502 Pa. at 402, 466 A.2d at 1014. Accord Commonwealth v. Nichols, supra; Commonwealth v. Briggman, 325 Pa.Super. 333, 472 A.2d 1145 (1984).

By giving the Mayfield requirement a “realistic construction,” we find that the trial court erred in not granting the Commonwealth an extension of time in which to bring appellee to trial.

In the instant appeal, we are dealing with a sixty-two day time period which should be excludable for Rule 1100 purposes, i.e., the period of time between August 10, the date of the clerical error, and October 11, the date the charges against appellee were reinstated. Both appellee and the trial court concluded that the sixty-two days were not excludable on the basis of Commonwealth v. Bennett, 320 Pa.Super. 150, 466 A.2d 1362 (1983). However, reliance upon Bennett is misplaced considering its factual circumstances.

In Bennett, a bench warrant was issued against the defendant on September 13th after he failed to appear for a preliminary hearing. On October 4th, in the presence of the Commonwealth, the trial court erroneously ordered the case quashed. On January 8th, the court, sua sponte, reversed its October 4th order. During the intervening three months, no appeal or action was taken by the Commonwealth in requesting the court to reconsider its order. Our court held that the period of time between the order and its reversal was not excludable. However, we found that the “Commonwealth did not ... show that the error was corrected through its actions.” Id., 320 Pa.Superior Ct. at 157, 466 A.2d at 1365. Not only did the “record fail to disclose any effort by the Commonwealth to bring the case to trial, the prosecution disavows the obligation to show due diligence contending that the period is excludable.” Id. Consequently, we held the' Commonwealth had not met its burden of proving due diligence.

The circumstances surrounding the case at bar do not suggest any lack of due diligence. Unlike the error involved in Bennett, it was not readily apparent to the Commonwealth that the charges against appellee had been dismissed. Once discovered, however, the Commonwealth acted quickly to have the case reopened. In addition, defense counsel was contacted to arrange for the surrender of appellee. Clearly, the error, which in no way can be attributed to the Commonwealth in this case, was corrected through its actions.

Moreover, the fact that the case was not listed for trial until December, after the Rule 1100 rúndate, does not preclude a finding of due diligence in light of the Chester County criminal case listing policy. The Commonwealth offered testimony that the “trial [was] scheduled for the earliest date consistent with the court’s business,” and the record shows “the causes of the court delay and the reasons why the delay [could] not be avoided.” Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1349-50. To require the Commonwealth to procure a court order for a priority listing because “Such a procedure has been followed in at least one other case,” and in the absence of any written local rule or policy, is unworkable. If such a rule were established, the trial courts of this Commonwealth would, in all likelihood, be inundated with requests for special listings whenever there is a possible Rule 1100 problem. In any event, due diligence demands only that the Commonwealth make reasonable efforts, not every conceivable effort. Commonwealth v. Colon, supra. Under the facts of the instant case, we find that the Commonwealth did make reasonable efforts to bring appellee to trial, even though a special listing was not sought. Further, “there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of [the] accused;” therefore, the functions Rule 1100 was designed to serve have been met. Commonwealth v. Genovese, supra, 493 Pa., at 69-70, 72-73, 425 A.2d at 369-70, 371.

The order of the trial court dismissing all charges against appellee is reversed and the case is remanded for trial. Jurisdiction is relinquished.

      . Given the May 21, 1983 complaint date, the mechanical rúndate was November 17, 1983.

      . An employee of the Chester County Data Processing Office testified that during the time period in question, there were approximately 1,800 to 2,000 active or open cases in the county. Of these cases, only the 200 with the oldest complaint dates were listed for trial. See R.R. pp. 16a-22a.

      . The District Attorney’s office was informed by the police that appellee was on the streets on October 6, a Thursday. Due to the Columbus Day holiday, the Chester County Courthouse was closed October 8 through October 10. The Clerk’s office was informed of the error on October 11.


author: CERCONE, Judge: HESTER, Judge,

text:
    485 A.2d 790
    COMMONWEALTH of Pennsylvania v. Edward CAVALIERI, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1984.
    Filed Dec. 5, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   CERCONE, Judge:

On February 3, 1982, appellant was arrested and charged with possession of a controlled substance. Immediately prior to trial in the Municipal Court of Philadelphia, a motion to suppress was litigated and denied. Appellant was then found guilty and sentenced to pay a fine of $150.00 plus costs. Appellant thereafter petitioned the Court of Common Pleas of Philadelphia County for a writ of certiorari asserting that his motion to suppress had been improperly denied. The writ of certiorari was denied and this appeal ensued. We reverse.

It is well settled that:

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence .of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Trenge, 305 Pa.Super. 386, 389, 451 A.2d 701, 703 (1982). Viewed in light of these principles, the record reveals the following.

On February 3, 1982, police officer Roy Wright and his partner responded to a radio call of a disturbance at the Parker Hotel in Philadelphia. When they arrived, Wright remained in the foyer where appellant was standing while his partner proceeded into the lobby to speak with the manager. Officer Wright noticed that appellant was wearing a jacket with bulging lower pockets into which he continuously moved his hands in and out. When questioned as to his purpose for being in the foyer, appellant responded that he was waiting for a narcotics officer. During the questioning, Wright’s partner informed him that appellant had refused the manager’s request to leave the premises. After appellant obeyed Wright’s order to remove his hands from his pockets, the officer then reached directly into appellant’s pockets to check for weapons. The officer found a vial of pills, a pack of cigarettes and a large wad of tissue. Officer Wright then frisked appellant’s outer clothing for weapons. No weapons were found and the pills— subsequently analyzed and determined to be controlled substances — provided the evidence for appellant’s arrest and conviction.

In the seminal case of Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized that society’s interest in detecting and preventing crime permitted a law enforcement officer to stop and question an individual concerning possible criminal behavior notwithstanding the absence of probable cause to arrest. The Court in Terry further recognized that a policeman conducting such an investigatory stop may in certain circumstances take appropriate measures to neutralize the threat of physical harm to himself or others. Id. Noting that the propriety of each “stop-and-frisk” case would have to be decided on the basis of its own facts, the Court held:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing, in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id., 392 U.S. at 30, 88 S.Ct. at 1884-85.

In our view, resolution of the instant case turns upon the question of whether it was reasonable for officer Wright, under the circumstances he encountered, to reach directly into appellant’s bulging pockets without first frisking or patting him down. “And in determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id., 392 U.S. at 19-20, 88 S.Ct. at 1878-79. In other words, we must decide whether the search and seizure was reasonable both at its inception and in the manner in which it was conducted. Both inquiries must "be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.” Id. 392 U.S. at 21-22, 88 S.Ct. at 1879-80. Furthermore, "... in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. 392 U.S. at 21, 88 S.Ct. at 1880.

Instantly, we are of the opinion that regardless of whether officer Wright was justified in initiating a protective search of appellant, he exceeded the permissible scope of such a search when, under the circumstances of this case, he immediately reached into appellant’s pockets without first conducting a pat-down or frisk of appellant’s clothing.

In Terry, supra, the Court declined to establish the limitations which the Fourth Amendment places upon protective searches. Instead, the Court stated that these limitations will have to be developed on a case by case basis. The Court did note, however, that a Terry type protective search must “be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments of the assault of the police officer.” Id. 392 U.S. at 29, 88 S.Ct. at 1884. In approving the scope of the search conducted in Terry, the Court observed:

Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon.

Id. 392 U.S. at 29-30, 88 S.Ct. at 1884. See also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

This is not to say, however, that a Terry protective search must always commence with a frisk or pat-down of the suspect. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), a reliable informant advised an officer that an individual seated in a car located in a high crime area at 2:15 a.m., was carrying narcotics and had a gun at his waist. The officer approached the car and asked the suspect to step out. When the suspect disobeyed and merely rolled down his car window, the officer immediately reached through the window and removed an unseen gun from the suspect’s waistband. In approving the officer’s actions, the Court explained:

While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a high-crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety. When Williams rolled down his window, rather than complying with the policeman’s request to step out of the car so that his movements could more easily be seen, the revolver allegedly at Williams’ waist became an even greater threat. Under these circumstances the policeman’s action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable.

Id. 407 U.S. at 147-48, 92 S.Ct. at 1924 (footnote omitted). We believe that a preliminary pat-down or frisk was excused by the Court in Adams v. Williams for two reasons. First, the investigating officer had reliable information that the suspect was carrying a concealed weapon in his waistband. Second, and more importantly, the suspect’s failure to comply with the officer’s request to exit the car, prevented the officer from performing a frisk or pat-down without placing himself in a much more dangerous position in relation to the suspect. See W.R. LaFave, SEARCH AND SEIZURE A TREATISE ON THE FOURTH AMENDMENT, Section 9.4, p. 125 (1978). Thus it is settled that, under appropriate circumstances, an investigating officer may dispense with a preliminary frisk and conduct an immediate search.

Instantly, the Commonwealth, relying on Adams v. Williams, supra, and our decision in Commonwealth v. Houser, 243 Pa.Super. 80, 364 A.2d 459 (1976), contends that officer Wright acted reasonably in reaching directly into appellant’s pockets without first performing a frisk. We are constrained to disagree. In our view, the circumstances encountered by the investigating officers in those cases are quite different than those in the case at bar.

In Commonwealth v. Houser, supra, the investigating officers responded to a call reporting a burglary. Although no suspects were found at the scene, the officers did find in the vicinity two men who were known to them as being on probation for burglary. As the police approached, one of the men fled. One of the officers confronted the remaining individual and observed a bulge in his jacket pocket in the shape of a gun. When the individual failed to respond to the question of what was in his pocket, the officer reached diréctly into the pocket and found $20.28 in change which was the amount alleged to have been taken in the burglary. In concluding that the officer acted reasonably under the circumstances, we held, relying upon Adams v. Williams, supra, that “[w]e can see no purpose in patting down a suspect when the officer has already discovered an apparent weapon on the individual’s person.” Commonwealth v. Houser, supra, 243 Pa.Super. at 83, 364 A.2d at 461 (emphasis in original).

The circumstances, as testified to by the investigating officer, in the case at bar, are in sharp contrast to those of Adams v. Williams and Houser. Here, the officers responded to a call of a disturbance at a hotel. Upon arrival, they observed no disturbance, but rather appellant standing alone in the foyer of the hotel. While one officer entered the lobby to talk with the manager, the other asked appellant what he was doing there. Appellant replied that he was waiting for a narcotics officer. At some undetermined point, the officer’s partner advised him that appellant had refused the manager’s request that he leave the hotel. Noticing that the pockets on appellant’s jacket were bulging and that he was continuously placing his hands in and out of those pockets, the officer ordered appellant to remove his hands from his pockets. After appellant obeyed this order, the officer reached directly into appellant’s pockets and extracted a plastic vial containing pills. The officer then frisked appellant for weapons.

Conspicuous by its absence, is any testimony or evidence whatsoever that the bulge in appellant’s pockets appeared to resemble the shape of a weapon. Nor did the radio information indicate that anyone at the hotel was believed to be in possession of a weapon. And although officer Wright expressed some concern over the fact that he was alone with appellant in the foyer, he never testified that he suspected appellant was armed and dangerous. The officer simply explained: “The lower pockets of the jacket kept bulging and he kept taking his hands and sticking them in and out of his pockets. It was just he and I in the foyer of the hotel. I asked him to remove his hands from his pockets and I checked his pockets for weapons.” (N.T. 7-8). Nor can it be said that appellant was anything but responsive and cooperative with the officer. Cf. Adams v. Williams, supra; Commonwealth v. Houser, supra.

In sum, in light of the Ünited States Supreme Court’s admonition that even a frisk or pat-down' of the outer clothing “constitutes a severe, though brief, intrusion upon cherished personal security____” Terry v. Ohio, supra, 392 U.S. at 24-25, 88 S.Ct. at 1881. And our own Supreme Court’s expressed policy “of scrupulously adhering to the narrow scope of the [Terry] exception.” Commonwealth v. Lovette, 498 Pa. 665, 676, 450 A.2d 975, 980 (1982). See also Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978). We hold that regardless of whether officer Wright was justified in conducting a protective search of appellant in the first place, the officer far exceeded the scope of a permissible search given the absence of any facts that would reasonably warrant the conclusion that the officer was justified in immediately reaching into appel-'lant’s pockets. Accordingly, the evidence seized as a result of this search should have been suppressed.

The judgment of sentence is reversed and a new trial is ordered.

HESTER, J., filed a dissenting statement.

HESTER, Judge,

dissenting:

I dissent. I would affirm on the Opinion of Judge Ned L. Hirsch of the court below.

      . The record does not disclose the exact time this incident occurred. Officer Wright did testify, however, that his tour of duty was 11:00 p.m. to 7:00 a.m. The arrest report states that appellant was arrested at 1:10 a.m.

      . There is no doubt that a seizure and search occurred when appellant was ordered to remove his hands from his pockets and officer Wright immediately reached into the pockets. The record is not clear, however, on the question of whether appellant’s freedom of movement had been restrained in any manner by officer Wright prior to his search for weapons. Indeed the suppression court acknowledged that appellant had not committed any crime prior to the search. (N.T. 18-19). Hence we will assume, as did the Court in Terry, "that up to that point no intrusion upon constitutionally protected rights had occurred.” Id. 392 U.S. n. 16 at 19, 88 S.Ct. n. 16 at 1879.

      . As previously noted, when asked what he was doing in the foyer appellant answered that he was waiting for a narcotics officer. The officer did not find this explanation implausible as he "figured [appellant] had some information for a narcotics officer." (N.T. 13).

      . When requested to stop placing his hands in and out of his pockets, appellant promptly obeyed. Cf. Commonwealth v. Watkins, 222 Pa.Super. 146, 292 A.2d 505 (1972).