author: HESTER, Judge.

text:
    627 A.2d 1219
    Paul J. McARDLE, Appellant, v. Michael TRONETTI, Regional Health Services, Inc., and Steven Reilly.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1993.
    Filed July 14, 1993.

      Paul J. McArdle, Pittsburgh, in pro. per.
    Francis J. Klemensic, Erie, for appellee Tronetti.
    Mark E. Mioduszewski, Erie, for appellee Reilly.
    Before KELLY, JOHNSON and HESTER, JJ.
   HESTER, Judge.

Paul J. McArdle appeals from the order entered in the Court of Common Pleas of Erie County on July 30, 1992, which sustained certain preliminary objections in the nature of a demurrer, dismissed his complaint, and directed him to pay $250 in counsel fees. For the reasons set forth below, we reverse that order and remand the matter for further proceedings.

The procedural history of this case may be summarized as follows. On April 28, 1992, appellant instituted this action by filing a complaint, which requested an award of both compensatory and punitive damages. The complaint asserted claims for professional malpractice, gross negligence, civil conspiracy, vicarious liability, and malicious use of process. In addition, it indicated that Michael Tronetti, a psychiatrist employed by Regional Health Services, conducted a court-ordered evaluation of appellant’s mental capacity after appellant was sentenced in connection with a disorderly conduct conviction. The complaint also indicated that Dr. Tronetti erroneously diagnosed appellant as a paranoid schizophrenic, incorrectly prescribed psychotropic medication to treat appellant’s condition, and improperly threatened to obtain a court order permitting the forcible injection of that medication when appellant refused to take it voluntarily. Furthermore, the complaint indicated that Steven Reilly, a prison social worker, filed a petition seeking appellant’s involuntary commitment and that this petition contained several false allegations. Finally, the complaint indicated that both Dr. Tronetti and Mr. Reilly committed perjury at a hearing conducted in connection with the latter’s petition and that the hearing led to appellant’s placement in Warren State Hospital, where another patient subsequently attacked him.

On May 19, 1992, following the effectuation of service, Mr. Reilly filed preliminary objections containing a motion to strike and various demurrers. In support of the demurrers, he set forth a number of claims. With respect to two of those claims, which related to res judicata and collateral estoppel, Mr. Reilly alleged that appellant unsuccessfully had attempted to obtain relief in a federal court for causes of action arising out of the same factual transaction and that disposition of that case both barred the maintenance of appellant’s suit and estopped him from litigating issues impacting upon the question of liability. In an attempt to buttress these allegations, Mr. Reilly appended to his preliminary objections a copy of the complaint from the federal action. That complaint, which requested awards of both compensatory and punitive damages, asserted federal claims for the intentional deprivation of constitutional rights by governmental officials and pendent state claims for professional malpractice, conspiracy, malicious use of process, and “tortious conduct per se.” Mr. Reilly also attached a copy of a district court opinion indicating that the court, while declining to exercise jurisdiction over the various pendent matters, relied upon principles of immunity to dismiss the federal claims for failure to state a cause of action. Furthermore, he appended a copy of a unanimous panel decision by the United States Court of Appeals for the Third Circuit, which affirmed the district court’s disposition.

On May 20,1992, Dr. Tronetti and Regional Health Services also filed preliminary objections, which included, inter alia, demurrers premised upon res judicata and collateral estoppel. Appellant subsequently responded to appellees’ preliminary objections by indicating that there had been no prior adjudication of his claims. However, on July 30, 1992, the trial court concluded that appellant’s claims were barred by application of both res judicata and collateral estoppel. See Trial court opinion at 4. Accordingly, it entered the contested order granting appellees’ preliminary objections, dismissing the complaint, and directing appellant to pay $250 in counsel fees. This timely appeal followed.

Appellant questions the propriety of the trial court’s disposition of appellees’ preliminary objections. Our standard for reviewing this claim is well-established.

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolf, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Greenspan v. United Services Automobile Assn., 324 Pa.Super. 315, 318, 471 A.2d 856, 857-58 (1984), quoting Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982). In the present case, the trial court premised its decision upon the determination that res judicata and collateral estoppel barred appellant’s causes of action.

We first consider res judicata. Pursuant to the doctrine of res judicata, a final judgment on the merits by a court of competent jurisdiction will bar any future suit between the parties or their privies in connection -with the same cause of action. Mintz v. Carlton House Partners, Ltd., 407 Pa.Super. 464, 595 A.2d 1240 (1991). The purposes behind the doctrine, which bars the relitigation of issues that either were raised or could have been raised in the prior proceeding, Dyer v. Travelers, 392 Pa.Super. 202, 572 A.2d 762 (1990), is to conserve limited judicial resources, establish certainty and respect for court judgments, and protect the party relying upon the judgment from vexatious litigation. See Mintz v. Carlton House Partners, Ltd., supra. In keeping with these purposes, the doctrine must be liberally construed and applied without technical restriction. Id. Furthermore, we note that its application requires the concurrence of four conditions between the present and prior actions: 1) identity of issues; 2) identity of causes of action; 3) identity of parties or their privies; and 4) identity of the quality or capacity of the parties suing or being sued. Id.

In the present case, there is no question that the disposition of the federal claims by the district court, a court of competent jurisdiction, constituted a final judgment on the merits. Accordingly, we must determine whether this judgment may be applied to bar appellant’s action, which involves several state claims premised upon the same set of operative facts. Even if we assumed that the two actions raised identical issues and satisfied criteria regarding the identities of both the parties and their capacities, this assumption would not end our analysis since it includes no discussion of the identity between the various causes of action.

As to the identity of cause[s] of action, rather than resting upon the specific legal theory invoked, res judicata generally is thought to turn on the essential similarity of the underlying events giving rise to the various legal claims. Whatever the conceptual difficulties inherent in the definition of a “cause of action” often the presence of a single cause of action is clear. Davis v. United States Steel Supply, 688 F.2d 166 (1982), cert. denied, 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (applying Pennsylvania law). The Davis court recognized that in determining whether a single cause of action is present one may consider the identity of the acts complained of, the demand for recovery, the identity of witnesses, documents, and facts alleged. A lack of identity of these facets would, of course, support the conclusion that there is no identity of cause of action.

In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 450-51, 477 A.2d 527, 531 (1984) (emphasis in original).

In the present case, our examination of the two complaints reveals that the claims set forth therein arose out of same set of factual circumstances. In addition, it establishes that appellant demanded both compensatory and punitive relief in connection with each set of claims. However, despite these similarities, we find that the two sets of claims lack the identity necessary to support the application of res judicata.

The federal claims asserted by appellant challenged the intentional deprivation of his constitutional rights by Dr. Tronetti and Mr. Reilly while they were working on behalf of Erie County. Consequently, those claims were supported by allegations that Dr. Tronetti and Mr. Reilly engaged in improper conduct and that this conduct amounted to an intentional deprivation of appellant’s constitutional rights. By contrast, the claims dismissed by the trial court, which merely challenged the tortious nature of appellees’ conduct, contained no allegations regarding the deprivation of constitutional rights. Instead, they were supported by, among other things, allegations that Dr. Tronetti and Mr. Reilly engaged in conspiratorial activity designed to harm appellant and committed improper conduct either willfully or with gross negligence and recklessness. These differences in factual allegations, along with the disparity in proof that they render necessary, clearly demonstrate the distinct nature of the two sets of claims. Thus, in light of our determination regarding a lack of identity of causes of action, we conclude that the trial court erroneously utilized res judicata to bar appellant’s claims.

We note that our ultimate conclusion regarding the applicability of res judicata is consistent with the position espoused in the Restatement (Second) of Judgments § 25, Comment e. In part, that comment provides:

A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If, however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should not be held precluded.

Restatement (Second) of Judgments § 25, Comment e. Although the comment specifically refers to theories not raised in an initial action, we fail to discern any logical difference between that factual scenario and a situation where the theory of relief actually is raised and the court, despite possessing jurisdiction, declines to exercise it as a matter of discretion. Keeping these principles in mind, we turn to the situation presently before us.

In the federal action, appellant raised pendent state claims regarding conspiracy, professional malpractice, malicious use of process, and “tortious conduct per se.” However, the district court declined to exercise its discretion and consider them. Thus, pursuant to the Restatement, the court’s disposition of the federal claims should not affect appellant’s ability to present claims in common pleas court regarding conspiracy, professional malpractice, gross negligence, and malicious use of process.

We now consider matters relating to the doctrine of collateral estoppel.

Collateral estoppel seeks to preclude a litigant from raising an issue which has previously been determined and applies if (1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the' plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to judgment.

Melat v. Melat, 411 Pa.Super. 647, 653-54, 602 A.2d 380, 384 (1992).

In the present case, appellant asserted a number of state claims against appellees in connection with their allegedly tortious conduct. Appellant’s claims encompassed Dr. Tronetti’s diagnosis of him as a paranoid schizophrenic. They also related to an alleged conspiracy between the doctor and Mr. Reilly to harm appellant and involved assertions that the two men perjured themselves at the involuntary commitment proceedings. In addition, one of the claims indicated that Mr. Reilly committed the tort of malicious use of process by filing a false commitment petition. Finally, we note that another claim sought relief against Regional Health Services for vicarious liability.

In the prior federal case, which related to Dr. Tronetti and Mr. Reilly, appellant utilized the same set of operative facts to raise federal claims for the deprivation of his constitutional rights. While our examination of the appellate court opinion disposing of that case reveals that the court of appeals determined that the doctor and Mr. Reilly possessed absolute immunity for claims relating to the diagnosis, testimony, and conspiracy and that appellant failed to plead sufficient facts to demonstrate the malicious use of process in violation of his constitutional rights, these determinations resolved issues limited to federal law. Since appellant’s present claims, while premised upon the same set of factual transactions, raise issues involving only state law, it is clear that they are distinct from those asserted in the federal action. Accordingly, we find that the determinations of the court of appeals can have no impact upon them and conclude that the trial court improperly applied collateral estoppel to bar appellant’s claims for relief.

Having determined that the trial court improperly applied both res judicata and collateral estoppel to bar appellant’s claims for relief, it is clear that the trial court erroneously sustained appellees’ preliminary objections on these bases. Consequently, we turn to the propriety of the court’s award of attorney fees. Pursuant to 42 Pa.C.S. § 2503, a trial court may award attorney fees to any party as a sanction against another party’s dilatory, obdurate or vexatious conduct. Although the record contains no discussion of the matter, the court unquestionably believed that appellant’s conduct in filing a complaint which raised claims barred by both res judicata and collateral estoppel was vexatious. However, since we previously have determined that neither doctrine prevents the litigation of the matters raised in the complaint, the court’s award of attorney fees may not stand.

Order reversed and case remanded for further proceedings. Jurisdiction relinquished.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    627 A.2d 1224
    COMMONWEALTH of Pennsylvania, Appellant, v. Eugene K. HENDRIX, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 13, 1993.
    Filed July 14, 1993.

      Kemal A. Mericli, James R. Gilmoore, Asst. Dist. Attys., Pittsburgh, for Com., appellant.
    Rosalyn L. Guy, Pittsburgh, for appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Allegheny County which suppressed a handgun seized from appellee’s car. The Commonwealth contends that the lower court erred in suppressing the evidence given the facts of this case. Having reviewed the record, we reverse the order suppressing the handgun and remand for trial.

When passing on a challenge to a decision of a suppression court, we may consider only the evidence of defense witnesses and so much of the Commonwealth’s evidence that, read in the context of the record as a whole, remains uncontradicted. We are limited primarily to questions of law, and we are bound by the suppression court’s findings of fact, provided those findings are supported by the record. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Marconi, 408 Pa.Super. 601, 607, 597 A.2d 616, 619 (1991) appeal denied 531 Pa. 638, 611 A.2d 711 (1992); Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-63 (1989). Governed by the foregoing standard, our review of the record reveals the following facts: On April 18, 1991, during the early afternoon hours, a caller, identified as Mrs. Milbern of 134 Central Street, telephoned the police. She informed the dispatcher that seven black males were at her residence, that they were “after” her nephew and that one of the males had a gun. She also provided the license plate numbers of the two automobiles which the men were driving.

Upon their arrival approximately ten minutes after the call, two uniformed police officers observed three or four cars “parked in the middle of the street” and a group of black males gathered in front of the house in question. A woman flagged down the officers and told them that the men were looking for her nephew who was not there and she wanted the men to leave her property. The homeowner’s son also spoke to police and indicated that the dispute involved a drug transaction and that they “were out to hurt him.”. The woman also informed the police that she believed one of the men had a gun — although she had not personally seen a weapon — since one of the men had indicated that another possessed a weapon.

While continuing to discuss this matter with the parties at the scene, the officers attempted to observe any “bulges” on the persons of the black males who were milling about the yard. Officer Haywood testified that during this time, appellee and another male walked over to a yellow Oldsmobile Delta 88, the license plate of which matched one of the two given in the original report. The car was parked in the middle of the street. Officer Haywood approached appellee as he was entering the car and told him to move his vehicle from the middle of the street. Appellee then pulled his car onto the berm. While appellee was moving his car, Officer Haywood inspected the interiors of the other vehicles in the area. When appellee stopped his car and began to exit the vehicle, Officer Haywood looked inside the car. He observed a blue bag marked with the “Smith & Wesson” logo lying on the front seat. Officer Haywood recognized this bag as a standard handgun case. As soon as appellee exited the car, the officer then reached into the vehicle to seize the handgun bag. Before the officer actually touched the bag, appellee stated, “Hey man, there’s a gun in the bag.” Officer Haywood then grabbed the bag and opened it, revealing its contents — a “Brownie high powered semi-automatic handgun” with a round in the chamber, a loaded clip in the gun and another loaded clip in the bag. Appellee was then arrested and charged with a single violation of 18 Pa.C.S.A § 6106, firearm not to be carried without a license.

Following a suppression hearing, the lower court ordered the weapon suppressed. The court reasoned that the police “arrested the defendant and searched his vehicle without probable cause and without a warrant, and thereby violated his rights as protected by the Constitutions of the Commonwealth of Pennsylvania and the United States.” Trial Court Opinion, p. 2. The court further stated that there was no basis for the existence of exigent circumstances which would justify the warrantless search of appellee’s vehicle. The court also rejected the Commonwealth’s assertion that the “plain view” exception to the exclusionary rule validates the warrant-less seizure of the weapon from appellee. The Commonwealth reasserts herein its “plain view” argument.

Before addressing the merits of the Commonwealth’s argument, we recite the discussion of the plain view doctrine and the plain view exception to the warrant requirement as set forth in Commonwealth v. Ferrari, 376 Pa.Super. 307, 325-326, 545 A.2d 1372, 1381 (1988):

Generally, a subjective expectation of privacy as to that which is located in an area of common access will be deemed to be unreasonable; and therefore, visual observation of evidence located in open view in an unprotected area does not constitute a search so as to trigger Fourth Amendment protections. Commonwealth v. Chiesa, 329 Pa.Super. 401, 406-407, 478 A.2d 850, 853 (1984) (no search when police officer shined flashlight and looked into car which was parked unattended in a driveway shared with visitors and fellow tenants); see also I LaFave, Search and Seizure, § 2.2(a) at 322-23 (2nd Ed.1987); Moylan, The Plain View Doctrine, 26 Mercer L.Rev. 1047, 1097-98 (1975). Because there is no search, there is no need for an exception to permit admission of testimony relating to the observation. Hence, such cases may properly be distinguished as relying on an open view or plain view doctrine, rather than the plain view exception as formulated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality) reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), and refined in its progeny. See I LaFave, Search and Seizure § 2.2(a) at 320-23; Moylan, supra, at 1097-98; Note, “Plain View” — Anything But Plain, 7 Loyola L.Rev. 489, 489 n. 3 (1974).
The plain view exception is ordinarily applicable where there has been a physical intrusion into a protected area prior to the observation of the evidence, or where physical intrusion for a search and seizure follows an initial (non-search) observation from outside a protected area. The orthodox statement of the plain view exception is that before the police may conduct a warrantless search or seizure of evidence in plain view: the police must be lawfully present at the vantage point from which the evidence is discovered; the discovery must be inadvertent; and, the probable evidentiary value of the evidence must be immediately apparent. See generally I LaFave, Search and Sei zure § 2.2 at 320-350; Hall Search and Seizure, §§ 3.9-3.16 at 62-71 (1982 & 1987 Cumm.Supp.).

We note that the United States Supreme Court in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d. 112 (1990), eliminated the “inadvertence” requirement as unnecessary to insure the protection of Fourth Amendment rights. See also, Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992).

Thus, in performing the plain view analysis, we must first discern whether the police were lawfully in a position to view the evidence in question. Ferrari, supra; Commonwealth v. Merkt, 411 Pa.Super. 127, 130-131, 600 A.2d 1297, 1299 (1992). Instantly, Officer Haywood was responding to a crime report which indicated a group of black males were “after” Mrs. Milbern’s nephew and that one of the males had a gun. Upon arriving at the scene, Officer Haywood was informed by the homeowner and her son that one of the males had indicated that another member of the group had a gun, although neither were able to identify which black male, if any, actually had a weapon. In an effort to ascertain whether a weapon was present, Officer Haywood observed the black males’ demeanor and appearance, checking for any bulge in their clothing which might indicate the presence of a weapon.

Further, he visually inspected the interiors of the automobiles at the scene. Prior to looking into the passenger compartment of appellee’s vehicle, Officer Haywood asked appellee to move his Oldsmobile (the license plate number of which was given to the police dispatcher as one of the vehicles in which the group of black males were travelling) out of the middle of the street where it was parked.' After appellee moved the vehicle, Officer Haywood eyed the interior of the Oldsmobile at which time he spotted the Smith & Wesson handgun bag lying on the front seat of the automobile.

Undoubtedly, Officer Haywood was lawfully at the vantage point from which he observed the handgun bag, i.e., he was outside of the car when it was parked along a public road and he had not detained the car and its driver. It was proper for Officer Haywood to look in the vehicle to see if there were any weapons visually apparent given the nature of the police call and his additional discussions with the homeowner and her son which indicated a gun might be present at the scene. Further, the fact that he had asked appellee to move his vehicle does not render Officer Haywood’s vantage point improper, since it was entirely appropriate for him to ask appellee to move his parked Oldsmobile from the middle of the street. Cf., Ferrari, supra (police officer lawfully in position to observe incriminating evidence when looking in window of vehicle which was parked in public lot); Chiesa, supra (no search when police looked into car which was parked unattended in common driveway).

Second, we must determine whether the evidentiary value of the evidence was immediately apparent. Ferrari, supra; Merkt, supra. Although the contents of the gun case were not observable from outside of the vehicle, we find that the evidentiary value of the gun case and its contents was immediately apparent. Officer Haywood testified that he immediately recognized the bag as a handgun case from its size, shape and Smith & Wesson insignia. As was stated by the United States Supreme Court in Arkansas v. Sanders, 442 U.S. 753, 764-765 n. 13, 99 S.Ct. 2586, 2593-94 n. 13, 61 L.Ed.2d 235, 245 n. 13 (1979):

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example ... a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.

Given the fact that the officer was responding to a call which involved the alleged threat of the use of a handgun, we conclude that the evidentiary value of the gun case and, consequently, its contents were immediately apparent, despite the fact that the contents of the case were not visible. Cf., Oregon v. McGregor, 57 Or.App. 78, 84, 643 P.2d 1315, 1318 (1982) (defendant did not have a reasonable expectation of privacy with respect to pistol case which, by its distinctive configuration, indicated its contents; therefore, after it was seized from automobile, it was reasonable to open it without a warrant); United States v. Bonitz, 826 F.2d 954, 956 (10th Cir.1987) (refusing to employ Sanders given the particular characteristics of the hard plastic rifle case therein which did not reveal its contents by its outward appearance; however, noting the Sanders dicta remains applicable to the “well known soft zippered gun cases”). Simply put, appellee had no reasonable expectation of privacy in the Smith & Wesson handgun case — the distinctive configuration of the pistol case itself proclaimed its contents.

We are certain that Officer Haywood had probable cause to seize the handgun bag and its contents given that the officer was responding to a report allegedly involving the threatened use of a gun, that the officer recognized the case in question as a Smith & Wesson handgun case, and that the case was located in a vehicle known to be driven by one of the black males at the scene. While “the view of evidence located in plain view "within a protected area does not ordinarily justify an intrusion into the protected area to conduct a further search or seizure of the evidence [without a search warrant], the mobility of a motor vehicle is deemed to provide sufficient exigency to warrant such an intrusion even when the accused is in police custody. See Commonwealth v. Baker, [518] Pa. [145], [148-150], 541 A.2d 1381, 1383-84 (1988), aff'ing 347 Pa.Super. 213, 215-18, 500 A.2d 483, 484-85 (1985); Commonwealth v. Milyak, 508 Pa. 2, 7-9, 493 A.2d 1346, 1349-50 (1985).” Ferrari, 545 A.2d at 1382. Accordingly, Officer Haywood, having observed the incriminating evidence in plain view, was authorized to seize the gun case without a search warrant under the automobile exception to the Fourth Amendment.

Moreover, appellee admitted the handgun bag contained a gun before Officer Haywood had seized the bag and before he was either detained or arrested. Thus, appellee himself, by revealing the contents of the handgun case, relinquished any expectation of privacy he had in the bag. Cf., Commonwealth v. Cardona-Rivera, 904 F.2d 1149 (7th Cir.1990) (when arrested defendant was asked what packages in briefcase contained and he responded “coke”, he “stripped the cloak of secrecy from the package”, and warrantless search was proper); U.S. v. Veatch, 596 F.Supp. 1327 (D.C.Pa.1984) (officer had probable cause to believe car contained concealed weapon and warrantless search was proper where defendant blurted out he had a gun in the car during a weapons frisk at the arrest scene); State v. Ludtke, 306 N.W.2d 111 (Minn.1981) (when defendant said satchel in car contained hashish and guns, search without warrant proper since, by volunteering what the contents of the package were, defendant implicitly signaled that he no longer had any expectation of privacy in the satchel).

In sum, we reverse the decision of the court below and remand for trial. The Commonwealth is permitted to offer the handgun bag, the pistol, and the shells at trial.

Order reversed. Case remanded for trial. Jurisdiction relinquished.

      . The Commonwealth has stated in its brief that the suppression order in question terminates or substantially handicaps its prosecution of appellee, and, therefore, this appeal is properly before us. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . The lower court in its recitation of the facts appears to indicate that appellee made this statement after the bag was seized. However, the record clearly reveals that the statement was made before the handgun bag was secured by Officer Haywood, albeit only moments before the seizure. N.T., 6/12/92, pp. 9-10. Further, the record clearly reveals that appellee had neither been arrested or detained until after he stated there was a gun in the Smith & Wesson gun bag and the officer secured the bag. N.T., 6/12/92, p. 11. To the extent that the lower court’s findings of the facts are contradicted by the record, we are not bound by those findings. Griscavage, supra.

      . Even though Sanders, supra, has been overruled, in United States v. Donnes, 947 F.2d 1430, 1437 (10th Cir.1991), the Court of Appeals stated the plain view container exception to the warrant requirement set forth in footnote 13 of Sanders, supra, remains valid, when a container is “not closed,” or “transparent,” or when its "distinctive configuration ... proclaims its contents,” and thus, the container supports no reasonable expectation of privacy.


author: HOFFMAN, Judge.

text:
    627 A.2d 1229
    COMMONWEALTH of Pennsylvania, v. Sandra Grisel LOPEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued April 15, 1993.
    Filed July 14, 1993.

      Theresa Hogan, Easton, for appellant.
    John F. Spirk, Asst. Dist. Atty., Easton, for Com., appellee.
    Before DEL SOLE, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is from the judgment of sentence following appellant’s conviction for aggravated assault and involuntary manslaughter. Appellant contends that the sentencing court erred in not finding that the conviction for aggravated assault merged with the conviction for involuntary manslaughter; the court abused its discretion in sentencing appellant in the aggravated range; and the sentence imposed was excessive in that the court ignored the mitigating circumstances and failed to consider other sentencing alternatives. For the following reasons, we affirm.

On June 23, 1992, after a non-jury trial, appellant Sandra Lopez was convicted of involuntary manslaughter and aggravated assault in connection with the “shaking” death of her four month old child. Following the denial of her post-trial motions, appellant was sentenced to a term of imprisonment of not less than five years nor more than fifteen years for the charge of aggravated assault and a concurrent term of not less than one year nor more than two years for the charge of involuntary manslaughter. Appellant filed a motion for reconsideration of sentence which the court denied on November 10, 1992. This timely appeal followed.

Appellant first contends that the sentencing court erred in not finding that the conviction for aggravated assault merged with the conviction for involuntary manslaughter. We disagree.

Our Supreme Court set forth the test for determining whether two convictions merge for the purposes of sentencing in Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) in which the court held that only lesser included offenses merge for the purposes of sentencing. This court subsequently summarized the test as follows:

In order for offenses to merge, one offense must be a “lesser included offense” of the other, i.e. the elements of the lesser offense must be identical to and capable of being wholly subsumed within the elements of the greater offense, and the factual predicate for the lesser included offense must also be part of the factual predicate required to establish the greater offense.

Commonwealth v. Yates, 386 Pa.Super. 282, 287, 562 A.2d 908, 911 (1989) (emphasis in original). Thus, we must determine whether the crime of aggravated assault is a lesser included offense of the crime of involuntary manslaughter.

The relevant statutory provisions of these two crimes are as follows: Section 2702(a)(1) provides that a person is guilty of aggravated assault if she: “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1). Section 2504(a) provides that “a person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, [s]he causes the death of another person.” 18 Pa.C.S. § 2504(a).

Malice is a required element of aggravated assault but not involuntary manslaughter. Malice “‘exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.’ ” Commonwealth v. Hickson, 402 Pa.Super. 53, 60, 586 A.2d 393, 396 (1990) (quoting Commonwealth v. Hornberger, 441 Pa. 57, 61, 270 A.2d 195, 197 (1970)), appeal denied, 527 Pa. 663, 593 A.2d 838 (1991). Aggravated assault, pursuant to 18 Pa.C.S. § 2702(a)(1), requires an act done “recklessly under circumstances manifesting extreme indifference to the value of human life”. The commission of such an act requires malice. See, e.g., Commonwealth v. Scofield, 360 Pa.Super. 552, 556, 521 A.2d 40, 42 (1987) (“facts raised legal implication of malice though defendant was not actuated by express malice ... ”) (quoting Commonwealth v. Raspa, 138 Pa.Super. 26, 29, 9 A.2d 925, 927 (1939), appeal denied, 517 Pa. 593, 535 A.2d 82 (1987).

A conviction for involuntary manslaughter, on the other hand, does not require proof of malice. See In Interest of Smith, 396 Pa.Super. 624, 637, 579 A.2d 889, 895 (1990), appeal denied, 527 Pa. 610, 590 A.2d 296 (1991); Commonwealth v. Moore, 463 Pa. 317, 322, 344 A.2d 850, 853 (1975). Thus, although both crimes may involve a degree of recklessness, the reckless conduct involved in aggravated assault, unlike that included in the definition of involuntary manslaughter, is of such a degree that it gives rise to an inference of malice. As the element of malice is absent in involuntary manslaughter, aggravated assault under 18 Pa.C.S. § 2702(a)(1) cannot be a lesser included offense of involuntary manslaughter.

Moreover, in Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) (en banc), this court held that the crimes of attempted murder and aggravated assault do not merge for sentencing purposes. In reaching that decision, the majority stated that “[a]n additional, independent basis for finding that the two crimes do not merge is the fact that ‘a lesser included offense’ cannot be a higher-graded felony than the crime in which it is supposedly included.” Id. at 225, 610 A.2d at 1053. Applying that rationale to the instant matter, we must likewise conclude that aggravated assault, here a felony of the first degree, is not a lesser included offense of involuntary manslaughter, a misdemeanor of the first degree. Hence, they do not merge for sentencing purposes.

Appellant next contends that the court improperly imposed a sentence in the aggravated range where there are no aggravating factors and where the court failed to state any aggravating factors at the time of sentencing. This claim is meritless.

Appellant was sentenced to a period of incarceration of not less than sixty (60) months nor more than one hundred eighty (180) months. Under the guidelines, the standard range is thirty to sixty months and the aggravated range is sixty to seventy-five months. Thus, appellant’s sentence (sixty months) falls on the cusp of the standard and aggravated ranges. Unless the trial court states to the contrary, this court will presume that a sentence at the bound of the standard and aggravated ranges falls in the aggravated range. Commonwealth v. Hoover, 342 Pa.Super. 163, 166, 492 A.2d 443, 444 (1985). Here, however, the trial court explicitly stated that the sentence was in the standard range. N.T., 10/20/92, at 13. As appellant was sentenced in the standard range, the court was not required to state reasons for sentencing her in the aggravated range. Accordingly, appellant’s arguments pertaining to the propriety of a sentence in the aggravated range must fail.

Appellant’s final contention concerns discretionary aspects of her sentence. We first note that appellant has complied with the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and proceed to determine whether appellant presents a substantial question requiring us to review the discretionary aspects of sentence. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). Appellant contends that the sentencing court abused its discretion when it ignored the mitigating circumstances in the record and failed to address factors weighing in favor of probation and other sentencing alternatives. Appellant does not allege that the trial court was unaware of these mitigating circumstances. Instead, she argues that the court did not attach sufficient weight to these factors and expresses her disagreement with the conclusion reached by the sentencing court. This type of claim, which asks us to substitute our judgment for that of the sentencing court, does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole. See Commonwealth v. Hobson, 413 Pa.Super. 29, 604 A.2d 717 (1992); Commonwealth v. Rogers, 386 Pa.Super. 476, 563 A.2d 165 (1989). Accordingly, we disallow the appeal as to this claim.

For the foregoing reasons, we affirm judgment of sentence.

Affirmed.

      . 18 Pa.C.S. § 2702(a)(1).

      . 18 Pa.C.S. § 2504.

      . See 18 Pa.C.S. §§ 2702(b), 2504(b).