author: SPAETH, Judge:

text:
    450 A.2d 681
    Carman STAIANO and Rita Staiano, his wife, Appellants, v. JOHNS MANVILLE CORP., and Johns Manville Sales Corp. and Raybesto Manhatten, Inc. and Owens-Corning Fiberglas Corp. and Forty-Eight Insulation, Inc., and Nicolet Industries, Inc., and Pittsburgh Corning Corporation and Celotex Corp., and Armstrong Cork Company and Unarco Industries, Inc., and H. K. Porter Co., Inc. and Southern Asbestos Company and J. P. Stevens, Inc., and Eagle-Picher Industries, Inc., and Amatex Corp., and Delaware Asbestos and Rubber Company and, Fibreboard Corporation and Pacor, Inc. and Keene Corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed Sept. 3, 1982.
    Petition for Allowance of Appeal Denied Feb. 7, 1983.

      Robert Paul, Philadelphia, for appellants.
    Barbara Markham and Jo Marjorie Fineman, Philadelphia, for appellees.
    Before SPAETH, BECK and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order entering summary judgment. The question is whether the lower court erred in finding appellants’ claims barred by the statute of limitations. We have concluded that the court did not err, and therefore affirm.

Appellants’ action is in trespass and assumpsit and is in four counts: negligence, breach of warranty, strict liability, fraud and conspiracy. Appellant-husband asks damages for personal injuries sustained as a result of occupational exposure to asbestos dust emanating from products manufactured by appellees, and appellant-wife asks damages for loss of consortium. The lower court held, and it is settled, that the two year statute of limitations for “injuries to the person,” 42 Pa.C.S. § 5524(2), applies to each of the four counts. See, Jones v. Boggs & Buhl, Inc., 355 Pa. 242, 49 A.2d 379 (1946); Shadle v. Pearce, 287 Pa.Superior Ct. 436, 430 A.2d 683 (1981); Salvador v. Atlantic Steel Boiler Co., 256 Pa.Superior Ct. 330, 389 A.2d 1148 (1978). It is also settled that appellant-wife’s consortium claim depends on her husband’s claim. Pa.R.Civ.P. 2228(a); Hopkins v. Blanco, 224 Pa.Superior Ct. 116, 302 A.2d 855 (1973), aff’d Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1973). What is not settled is when the two year statute of limitations started to run. Once that is decided, we must determine whether the record sufficiently demonstrates that appellants filed their action after the statute had run.

I

Although written in absolute terms—“the following actions and proceedings must be commenced within two years”—the period of the statute of limitations does not start to run until the tortious injury is discovered or reasonably discoverable by the plaintiff. See, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895). This rule has been applied to cases involving subterranean rights, see e.g., Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); Lewey v. Fricke Coke Co., supra, as well as internal bodily injuries, see e.g., Ayers v. Morgan, supra, Acker v. Palena, 260 Pa.Superior Ct. 214, 393 A.2d 1230 (1978); Grubb v. Albert Einstein Medical Center, 255 Pa.Superior Ct. 381, 387 A.2d 480 (1978); Barshady v. Schlosser, 226 Pa.Superior Ct. 260, 313 A.2d 296 (1973) (opinion in support of reversal).

In Anthony v. Koppers Co., 284 Pa.Superior Ct. 81, 425 A.2d 428 (1980), revers’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), we reviewed the application of the statute of limitations to cases in which the plaintiff has contracted a disease from a continuous exposure to a hazardous substance. We found that other jurisdictions have taken one of three approaches to these “creeping disease” cases:

A few jurisdictions have held that in a creeping disease case the statute starts to run with the plaintiff’s “first breath” of the hazardous substance, even though he does not discover his disease or its cause until many years later. See Schmidt v. Merchant’s Dispatch Trans. Co., 270 N.Y. 287, 200 N.E. 824 (1936); Cartledge v. Jopling, [1962] 1 Q.B. 189 (C.A.), aff’d, [1963] Appeal Cases 758 (H.L.). The first breath rule, however, has led to such harsh results that it has been widely repudiated. See Birnbaum, First Breath’s Last Gasp: The Discovery Rule in Products Liability Cases, 13 Forum 279 (1977) (criticizing Schmidt); Kelley, The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience, 24 Wayne L.Rev. 1641 (1978) (British reaction to first breath rule announced in Cartledge). Other jurisdictions have viewed subjecting the plaintiff to exposure as a continuing tort and have adopted what may be called the “last breath” rule, under which the statute of limitations starts to run at the last exposure, but neither has this rule proved satisfactory. See Garrett v. Raytheon Co., Ala., 368 So.2d 516 (1979) (statute of limitation barred suit for injuries from exposure to radiation where last exposure occurred in 1957, even though symptoms were not manifest until 1975). And see Note, 31 Ala.L.Rev. 509 (1980) (criticizing Garrett). Accordingly, a majority of the jurisdictions that have considered the issue, including the Supreme Court of the United States, have held that the discovery rule applies to creeping disease cases. See Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Karjala v. Johns-Manville Products Corp., 523 F.2d 155 (8th Cir. 1975); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973); R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir. 1963); Brush Beryllium Co. v. Meckley, 284 F.2d 797 (6th Cir. 1960); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809 (2d Cir. 1960); Strickland v. Johns-Manville International Corp., 461 F.Supp. 215 (S.D.Texas 1978); Velasquez v. Fibreboard Paper Products Corp., 97 Cal.App.3d 881, 159 Cal.Rptr. 113 (App.1979); Nolan v. Johns-Manville Asbestos & Magnesi um, 74 Ill.App.3d 778, 30 Ill.Dec. 307, 392 N.E.2d 1352 (1979); Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535 (1969); Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky.1979). Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978); Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978). And see Birnbaum, The Statute of Limitations in Environmental Suits: The Discovery Rule Approach, Trial Volume 16, No. 4, at 34 (April 1980); Comment, Asbestos Litigation: The Dust Has Yet To Settle, 7 Fordham Urban L.J. 55, 77-83 (1980).
Id., 284 Pa.Superior Ct. at 93, 425 A.2d at 434-35.

We further noted, id., 284 Pa.Superior Ct. at 94, 425 A.2d at 435, that while our Supreme Court had indicated that it might apply a “last breath” analysis, see Plazak v. Allegheny Steel Co., 324 Pa. 422, 188 A. 130 (1936), it had in fact subsequently applied the discovery rule. See Caibattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179, 125 A.2d 365 (1956).

Having determined that the “discovery rule” is applicable to creeping disease cases, we quoted with approval Judge TARIFF’S statement as to the level of knowledge a plaintiff must have before the statute of limitations starts to run. Id., 284 Pa.Superior Ct. at 96, 425 A.2d at 436. Judge TARIFF’S statement was:

Ayers’ progeny have struggled primarily with the question of the reasonableness of plaintiff’s conduct in attaining the appropriate level of cognitive knowledge which ultimately prompts a timely lawsuit. With the question of “reasonableness” as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injúry; and (3) knowledge of the causative relationship between the injury and the operative conduct. In the typical personal injury case, knowledge of the foregoing elements is gained contemporaneously with the occurrence of the liability creating events and little difficulty is presented in applying the commencement of the statute of limitations period. When time and space intervene between the several levels of knowledge, however, courts have struggled with the application of the articulated legal standard to the facts involved. An analysis of the case law compels the conclusion that when a plaintiff knows or has reason to know of his injury, its operative cause, and the causative relationship to independent occurrences, he possesses as a matter of law, the necessary information to herald a possible tort and hence commence the running of the statutory period. Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290, 295-96 (emphasis in original).

The present case was heard below by Judge TAKIFF, and applying the test that he had formulated, and that we later approved, he found that by June 1972 appellant-husband knew of his injury (asbestosis), its operative cause (inhalation of asbestos dust), and its causative relationship to asbestos products on the work site. Slip op. at 4. Since appellants did not file their action until January 1977, Judge TAKIFF held it barred.

Appellants argue that for an action to be barred it must also appear, in addition to the elements identified by Judge TAKIFF, that the plaintiff knew, or with reasonable diligence should have known, of “the culpability of [the] defendants,” “the proper parties to sue,” and “the identities of other potential defendants.” Brief for Appellants at 16-17. Appellants maintain that the record is silent as to these elements, and that summary judgment was therefore inappropriately entered.

In Anthony v. Koppers, supra, we specifically rejected the argument that a plaintiff must know that he has a cause of action—that someone is legally culpable—before the statute of limitations starts to run. Id., 284 Pa.Superior Ct. at 96, 425 A.2d at 436. We see no need to add to that discussion.

In support of their argument that the statute of limitations did not start to run until they knew “the proper parties to sue” and “the identities of other potential defendants,” appellants cite Grubb v. Albert Einstein Hospital, 255 Pa.Superior Ct. 381, 387 A.2d 480 (1978). However, we do not find Grubb in point.

In Grubb the plaintiff became paralyzed following surgery to her back. Within two years of her operation, she sued the three physicians she thought responsible for her injury as well as the hospital where the operation was performed. During the deposition of one of the physicians, the plaintiff learned for the first time that the manufacturer of a surgical instrument used during the operation might also be responsible for her injury. This deposition occurred more than two years after her operation. The manufacturer was then joined as an additional defendant. We held that this joinder was not barred by the statute of limitations because “[w]e [found] no evidence ... to indicate that [the plaintiff] was in a position . . . while still a paralyzed patient ... to determine the causal relationship between her injuries and the [surgical instrument].” Id., 255 Pa.Superior Ct. at 399, 387 A.2d at 489. This decision is consistent with the rule later announced by Judge TARIFF in Volpe v. Johns-Man-ville Corp., supra, and approved by us in Anthony v. Koppers Co., supra. It is true that the plaintiff in Grubb did not learn of the identity of the manufacturer of the surgical instrument as a potential defendant until she took the physician’s deposition, more than two years after her operation, but that was not what tolled the statute. What tolled the statute was that she did not know, and reasonably could not have known, that there was any causative relationship between a defective surgical instrument—of any manufacturer—and her injury.

We agree with Judge TARIFF’S analysis that “once [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim.” Volpe v. Johns-Manville, supra at 303. Here, it is enough that appellant-husband knew that his asbestosis was caused by the inhalation of asbestos dust emanating from asbestos products on the work site. We find no reason to postpone the commencement of the statute until a plaintiff has in addition discovered who manufactured the products that he knows have injured him. Indeed, to do so would “nullify the justifiable rationale of the statute of limitations and permit the prosecution of stale claims.” Id. at 324.

II

Appellants next argue that even when the foregoing test to determine when the statute started to run is applied, the record does not warrant entry of summary judgment.

Summary judgment should be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035. In deciding whether this is so, a court must view the evidence in the light most favorable to the non-moving party, and enter judgment only if the case is clear and free from doubt. Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Superior Ct. 198, 280 A.2d 570 (1971).

Here, the complaint alleges that appellant-husband was employed at the Philadelphia Naval Shipyard “from 1957 until the present time,” i.e., the date of the complaint, and that he was required “[tjhroughout” that time to work with appellees’ asbestos products. Complaint, para. 7.

The record also includes interrogatories and appellant-husband’s answers, as follows:

Q.29. Set forth the names and addresses of all doctors or physicians who treated plaintiff in the last ten years setting forth the dates of said treatment, the nature of plaintiff’s ailments or complaints and the nature of the treatment administered or prescribed by said doctor or doctors.
A.29. All of plaintiff’s medical treatment has been supplied by Dr. Brignola identified above, with the exception of regular check-ups and the asbestosis frequent check ups. Plaintiff’s only other medical problem was a hemorroidectomy which was performed in approximately the Spring of 1963 at St. Agnes Hospital.
Q.31. Set forth, to the best of your ability, the date when plaintiff first complained of any symptoms which you now believe to be related to the illness and describe the nature of his complaints.
A.31. Between 1968 and 1970, plaintiff started to experience increasing difficulty when being exposed to any fumes or dust. He would gag, become nauseous and sometimes actually throw up; he would have difficulty breathing, he would start to feel very nervous, very tense and also experience a build up of phlegm in the throat and in some manner also effects his speech in that he became hoarse.
Q.32. Set forth the name and address of the doctor or physician who first diagnosed plaintiff’s illness as being asbestosis or mesothelioma and set forth the date when this diagnosis was made.
A.32. Dr. Brignola, 1972.
Q.33. Set forth the names and addresses of all physicians who treated plaintiff for asbestosis or mesothelioma or conditions related to that illness, setting forth the dates of all treatment and describe the nature of said treatment. A.33. Dr. Brignola, regular check ups.
Q.37. Have you made a claim, in the nature of a Workmen’s Compensation proceeding. If so, set forth the identity of the Workmen’s Compensation carrier involved and if a claim has actually been filed with the Workmen’s Compensation authorities, set forth the caption and numbers identifying said actions.
A.37. A claim was filed in 1972 and never fully processed. Plaintiff is experiencing sufficient difficulty with his ability to request and is considering reactivating this claim for compensation and request that it be made permanent.

Finally, the lower court also had before it five exhibits. The first exhibit is a medical report by Dr. Brignola, dated June 3, 1972, concluding with the statement that “[t]he diaphragmatic pleural calcifications are indicative of asbestosis.” R. 9-10a. The second exhibit is a letter of June 15, 1972, from Dr. Brignola to Dr. Lytle of the Industrial Medical Department of the Philadelphia Naval Shipyard, stating that appellant’s X-rays revealed “bilateral diaphragmatic calcium deposits, pleural thickening and fibrosis especially of left 3-4 intercostal spaces and at the left base. The findings are indicative of asbestosis.” R. 11a. The letter also stated that appellant “is to avoid further exposure to asbestosis [sic].” Id. The third exhibit is a form from the United States Department of Labor’s Workplace Standards Administration. R. 12a. Appellees alleged in their motion for summary judgment that this form was a Federal Employees’ Notice of Injury or Occupational Disease, dated June 16, 1972, and signed by appellant, and that it gave notice that appellant was claiming he suffered from asbestosis because of his occupational exposure to asbestos fibers. R. 5a-6a, paras. 18 & 19. Appellant denied this allegation “for the reason that copy furnished plaintiff is not legible” and “has obviously been written over.” R. 22a, paras. 18 & 19. We find this response disingenuous. While the form is only partially legible, the lower court found, and we are satisfied, that appellant-husband “filed a Federal Employee’s Notice of Injury or Occupational Disease claiming that he suffered from asbestosis from exposure to asbestos fibers.” Slip op. at 2. The fourth exhibit is a letter dated December 4, 1972, from the United States Department of Labor’s Office of Federal Employees’ Compensation to the Commanding Officer of the Philadelphia Naval Shipyard. It states that “the occupational disease as claimed by subject, Carmen F. Staiano, ASBESTOSIS, has been accepted as job related.” R. 13a (emphasis in original). Appellant’s name and address appear in the lower left hand portion of this letter. The last exhibit is a letter dated January 10, 1976, from appellant’s counsel to Dr. Brignola. It states that counsel has been retained to represent appellant “for personal injuries suffered as a result of his exposure to asbestos while working at the Philadelphia Naval Shipyard,” and that appellant “advises that he has been under your care and treatment for this affliction for approximately four years.” R. 14a.

From these documents,—the complaint, appellant-husband’s answers to interrogatories, and the several exhibits— it is clear that appellant-husband knew in 1972 that he had asbestosis and that its cause was his exposure to asbestos on the work site. The conclusion follows that the lower court’s entry of summary judgment was supported by the record.

Appellants, however, resist this conclusion, arguing that the exhibits should not have been considered by the lower court because they were “unsworn exhibits.” Brief for Appellant at 9. We find no merit in this argument. It is true that the only affidavit attached to appellees’ motion for summary judgment was that of Thomas 0. Malcolm, attorney for appellee Celotex, R. 15a, and that he was not in a position to attest to the accuracy of documents he neither produced nor witnessed. It is also true that the exhibits should have been sworn exhibits. See Irrera v. SEPTA, 231 Pa.Superior Ct. 508, 331 A.2d 705 (1974); Toth v. Philadelphia, 213 Pa.Superior Ct. 282, 247 A.2d 629 (1968). However, appellants did not object to the lower court considering the documents, and only now argue that the Malcolm affidavit was insufficient (even now appellants do not challenge the authenticity of the documents). Their argument is therefore waived. Pa.R.App.P. 301(a).

Appellants acknowledge the general rule that an issue not argued below may not be argued on appeal, but nevertheless assert that their argument is not waived. They say:

The provisions of Rule 1035(a) & (b), Pennsylvania Rules of Civil Procedure, are mandatory concerning what may and may not be considered on a motion for summary judgment. This being the case, the ordinary rule that an issue not raised below may not be argued on appeal is inapplicable in this case. If a document or other piece of evidence outside of those listed in Rule 1035(a) & (b) comes improperly before the court, that defect is never cured, and it never is properly of the record notwithstanding any prior failure to argue its inadmissibility.

Reply Brief for Appellants at 5.

Waiver, however, never “cures” a defect; it merely precludes an appellant from arguing an issue not argued below. The rule that an issue not argued below may not be argued on appeal is designed to promote the orderly and efficient use of judicial resources. If the lower court is given an opportunity to address an issue, it “is more likely to reach a satisfactory result, thus obviating the need for appellate review . . . . ” Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 259, 322 A.2d 114, 117 (1974). Here, had appellants argued to the lower court that it should not consider unsworn exhibits, the court, we may assume, would have excluded the exhibits, Irrera v. SEPTA, supra, in which event appellees might have been able to cure the defect.

Finally, appellants argue that even when the exhibits are considered, they do not show that appellant-husband knew “the nature and extent of his individual affliction.” Brief for Appellants at 10. In their view, “the answer to interrogatory no. 32 . . . states only when the first diagnosis of asbestosis was made; it does not state what, if anything, was communicated to [appellant-husband] at that time.” Id. We find no merit in this argument either. It ignores the fact that following his examination by Dr. Brignola, appellant-husband filed a claim for compensation on the ground that he had asbestosis, and that on December 4, 1972, the Department of Labor notified him that his claim “has been accepted.” Furthermore, appellees did not have to show that appellant-husband knew that he had asbestosis as a result of his exposure to asbestos products on the work site, but only that he reasonably should have known. See Ayers v. Morgan, supra; Grubb v. Albert Einstein Medical Center, supra. The record demonstrates that appellant-husband attained that level of knowledge in 1972. The lower court was therefore correct in holding appellants’ action barred.

Ill

Appellants contend that even if the lower court properly dismissed the asbestosis claim, as we have held it did, two other claims remained unaffected, one, for the aggravating effects of inhaling asbestos dust two years before the filing of their complaint, and the other, for a “different disease of pleural thickening.” Brief for Appellants at 17.

Appellants reason that because appellant-husband worked at the shipyard “at least through 1975 and possibly even later . . . the tortious acts alleged in the Complaint continued to within 2 years of the date on which appellant filed his law suit, and at the very least, those injuries which occurred within 2 years of the filing of the suit would not be time-barred.” Brief for Appellants at 14.

There is some authority for this position. In Daniels v. Beryllium Corporation, 211 F.Supp. 452 (E.D.Pa.1962), the defendants contaminated the atmosphere in the vicinity of their manufacturing plant. Plaintiff-wife, who had lived in this vicinity for several years, contracted beryllium poisoning. Her illness was diagnosed in March 1958, but she did not bring suit until July 1, 1958. Applying Pennsylvania law, the Federal District Court concluded that a separate cause of action for aggravation of injuries would lie even though the action for the initial injury was barred by the statute of limitations. Said the court:

We conclude, therefore, that all claims for damages attributable to exposure to beryllium dust which occurred more than two years prior to July 1, 1958, the date of commencement of this suit, are barred by the statute of limitations. But the aggravation of the disease by additional poisoning since July 1, 1956, is an injury done to plaintiffs for which the suit was brought within the statutory two-year period. The statute therefore is not a bar, and plaintiffs may recover damages during that period and down to the date of trial. To hold otherwise would be to grant to the defendant a “prescriptive right to contaminate further” the wife plaintiffs lungs.
Id. at 456.

So far, no Pennsylvania appellate court has adopted, or rejected, the analysis in Daniels v. Beryllium, supra. We referred to the analysis in Shadle v. Pearce, 287 Pa. Superior Ct. 436, 430 A.2d 683 (1981), but declined to consider its validity because no aggravation since the statute had run was alleged. Id., 287 Pa.Superior Ct. n. 3, 430 A.2d at 686, n. 3. That is also the case here. In their complaint, appellants allege the following:

26. As a direct and proximate result of the aforesaid plaintiff was caused to contract diseases and injuries to his body systems, lungs, respiratory system, heart, and other body parts including but not limited to asbestosis, scarred lungs, emphysema, pneumonoconiosis, and the risk of mesothelioma and other cancers, some or all of which may be permanent.
27. As a direct and proximate result of the aforesaid, plaintiff has undergone great physical pain and mental anguish and may continue to do so, he has sustained a loss of earnings and earning capacity and he may continue to do so, he has been obliged to spend various sums of money to treat his diseases and inj[u]ries and he may be obliged to continue to do so; his enjoyment of life has been impaired and his life expectancy shortened; all to his great loss.

Complaint, paras. 26 & 27.

Appellants have not alleged that appellant-husband’s condition was aggravated by further exposure to asbestos during the two years prior to his suit. Since appellants have not alleged a claim within Daniels v. Beryllium, supra, we are not called upon to decide whether such a claim would have been valid. Even if it would have been, since it was not alleged it was not dismissed by the lower court’s entry of summary judgment.

Similarly, we do not read the complaint as alleging a claim for a “different disease of pleural thickening.” But if we assume that the complaint should read as alleging such a claim, the claim is nevertheless barred, for a new limitation period does not start each time a new disease develops from the same tortious conduct of the defendant. Thus, in Shadle v. Pearce, supra, the plaintiff learned on February 20, 1973, that an operation by his dentist on an abscessed tooth might have caused bacterial endocarditis, which in turn led to his having an aortic valve transplant. Following his recovery, the plaintiff was able to lead a normal life. He therefore decided to forgo any claim that he might have against his dentist. Three years later, in January 1976, the plaintiff developed an aortic aneurysm, which was secondary to the valve transplant. The aneurysm drastically affected his life, for he was left incapacitated and with a shorter life expectancy. On December 20, 1977, he brought suit against his dentist. We held this action barred by the statute of limitations because the possible negligence of the dentist had been known to the plaintiff for more than two years, and the discovery or development of a new complication from the injury caused by that negligence did not start a new statute of limitations period. Id., 287 Pa.Superior Ct. at 440, 430 A.2d at 685-86. Here, the record demonstrates that appellant-husband knew or at least reasonably should have known as early as 1972 that he had asbestosis. The fact that he later learned that his exposure to asbestos also resulted in “pleural thickening” did not begin a new statute of limitations period.

Affirmed.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    450 A.2d 689
    COMMONWEALTH of Pennsylvania v. Heidi MALLOY. Appeal of PAULA-ARLEN VENDING MACHINE CO., INC. (two cases). COMMONWEALTH of Pennsylvania v. James P. MICHENER, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued May 4, 1982.
    Filed Sept. 3, 1982.

      Gerald I. Roth, Allentown, for appellant.
    William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.
    Paul A. McGinley, Allentown, for Malloy and Michener, appellees.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

This case raises the novel issue of whether the victim of an alleged crime has standing to appeal, without the consent of the district attorney, a judicial determination dismissing a complaint for the prosecution’s failure to establish a prima facie case. For the reasons which follow, we conclude that a victim/complainant lacks the authority and power to appeal and, therefore, this appeal must be quashed.

On February 20, 1980, private criminal complaints were executed by David Rosen of the appellant corporation, Paula-Arlen Vending Machine Co. (hereinafter “appellant”), against James P. Michener and Heidi Malloy (hereinafter “defendants”). Each of the defendants was charged with theft by unlawful taking or disposition, theft by deception and criminal conspiracy. The complaints alleged that the defendants, former employees of appellant, drew and endorsed numerous checks on appellant’s account without authority, in an attempt to deprive the company of monies. On March 10, 1980, the District Attorney of Lehigh County approved the complaints.

The District Attorney allowed the appellant’s private counsel to represent the Commonwealth at the preliminary hearing held on April 17, 1980. After that hearing, District Justice Ralph Beck determined that a prima facie case had been established on all charges against both defendants. On June 4, 1980, informations were filed against the defendants on the charges alleged in the complaints.

Petitions for writs of habeas corpus were filed on behalf of both defendants, on June 5, 1980, in the Lehigh County Court of Common Pleas. The writs alleged a failure by the Commonwealth to establish a prima facie case at the preliminary hearing. Writs of habeas corpus ad subjiciendum were issued and a hearing was scheduled for June 30, 1980. The hearing was conducted by the Honorable Maxwell E. Davison, who reviewed the preliminary hearing transcript and the memorandum of law submitted by counsel. On July 28, 1980, the complaints against both defendants were dismissed because of the prosecution’s failure to prove a prima facie case.

On August 20, 1980, appellant privately filed notices of appeal from the order dismissing the complaints, because the district attorney refused to appeal or authorize appellant to do so on behalf of the Commonwealth. On October 29, 1980, the district attorney filed a motion to quash the appeals, challenging appellant’s standing to appeal. The motion was denied by our Court on February 10, 1981, “. . . without prejudice to the parties to address the standing issue in their briefs.”

Inquiry into the power of a private citizen to appeal in a criminal prosecution without the authorization or approval of the district attorney involves a consideration of the significance of the distinction between public and private wrongs and the role of the district attorney in conducting criminal prosecutions.

It is a well-settled principle of law that a crime is an offense against the sovereignty, a wrong which the government deems injurious not only to the victim but to the public at large, and which it punishes through a judicial proceeding in the Commonwealth’s name. 21 Am.Jur.2d 61, pp. 115-116. Though the same wrongful act may constitute both a crime and a tort, the tort is a private injury which is to be pursued by the injured party. Id., at § 2, p. 116. Criminal prosecutions are not to settle private grievances but are to rectify the injury done to the Commonwealth. The individual who is the victim of a crime only has recourse in a civil action for damages.

This special position which criminal prosecutions hold in our system has long been recognized by our courts, as evidenced in Hutchinson v. Bank of Wheeling, 41 Pa. 42, 45 (1861):

The private wrong was not merged in the public one, nor is the public prosecution intended to supersede the private action. Their purposes are entirely different. The person wronged is not chargeable with the conduct of the prosecution, and therefore not affected by an acquittal. Even a conviction and sentence do not discharge his right of action. . .

and more recently in Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976):

One of the purposes of the criminal law is to punish offenses against the Commonwealth, as defined by the Legislature, and it follows that, “[t]he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the individual who may, if entitled, obtain redress through a civil action...”

See also, Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979).

Though a victim may seek a complaint against an alleged criminal, the district attorney is charged with the responsibility for the investigation and prosecution of any complaint which he approves. The Act of July 5, 1957, P.L. 484, No. 275, § 1; 16 P.S. § 1402 provides that the district attorney is the one “. .. who shall sign all bills of indictment and conduct in court all criminal and other prosecutions, in the name of the Commonwealth...” In the performance of his duties, the district attorney is a quasi-judicial officer with the duty to seek justice, not just convictions. Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978). He is obligated to perform this task intelligently and impartially. Commonwealth v. Wiggins, 239 Pa.Super. 256, 361 A.2d 750 (1976). The prosecutor is under no compulsion to prosecute every alleged offender, and the decision to prosecute or not to prosecute is a matter within his discretion. United States ex rel. Miller v. Rundle, 270 F.Supp. 55 (E.D.1967), subject to review by the court of common pleas.

The seminal case of In re Petition of Piscanio, 235 Pa.Super. 490, 344 A.2d 658 (1975) discussed the extent and scope of the district attorney’s power to control criminal proceedings:

In considering the extent of the district attorney’s power, it is important to bear in mind that the district attorney’s function is to represent the Commonwealth in criminal prosecutions. In the capacity as the Commonwealth’s attorney, the district attorney has traditionally fulfilled the obligation of investigation and prosecution of crime by initially evaluating complaints to determine whether a charge should be brought against a suspect. “A District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case.”
. . . The attorney for the Commonwealth is acting in accordance with a recognized duty owed to the people of the Commonwealth in withdrawing approval of a complaint when investigation reveals a lack of legal basis for prosecution. If that office is to be given the obligation not only of overseeing the prosecution of crime but also determining when the charges should be brought, logic and efficiency require that the power to grant approval must be accompanied by the power to withdraw approval when additional facts newly brought to light indicate the wisdom of such a course.

Id., 235 Pa.Superior Ct. at 494, 344 A.2d at 660-661 (citations omitted) (emphasis added).

Thus, the district attorney is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he, in good faith, thinks that the prosecution would not serve the best interests of the state. This decision not to prosecute may be implemented by the district attorney’s refusal to approve the private criminal complaint at the outset, or, once the proceedings have commenced by withdrawing his approval and discontinuing the prosecution of the complaint.

Keeping the above principles of law in mind, we now turn to the central issue—whether a victim/complainant has standing to appeal, without the consent of the district attorney, a judicial determination dismissing his complaint. Though our courts have not resolved this issue, the subject has been indirectly addressed.

In the recent case of Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980), our Court assumed without deciding that appellate review was available to a private complainant/victim when the district attorney and Common Pleas judge refused to approve a private complaint. That court went on to note:

. . . Whether to charge a person with a criminal offense depends upon the exercise of prosecutorial discretion. This discretionary power of the District Attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence or nonexistence of probable cause. For this reason, the courts have been wary of interfering with or attempting to supervise the District Attorney in the exercise of his discretion in controlling criminal prosecutions.

Id., 276 Pa.Superior Ct. at 546, 419 A.2d at 592 (citations omitted).

The court continued, quoting with approval In re Petition of Piscanio:

. . . The [private] prosecutor .. . even as a victim . . . has no legitimate interest, other than as a member of the general public, in seeing a violator of the laws brought to justice by the Commonwealth and punished for his misdeeds. If a private prosecutor feels individually harmed his remedy is a civil suit for damages.

Id., 276 Pa.Superior Ct. at 546, 419 A.2d at 592, (quoting) Piscanio, 235 Pa.Super. at 495-496, 344 A.2d at 661-662.

The earlier case of Commonwealth v. Baroni, 159 Pa.Super. 518, 49 A.2d 188 (1946), determined that appellate review was not available to a private prosecutor who appealed without the consent of the district attorney. In that case, private counsel attempted to appeal, without the approval or authorization of the district attorney, an order granting the Commonwealth non prosequi of certain charges against the defendant. Our Court held that private counsel, by assisting in a criminal prosecution, did not attain the status equivalent to that of a district attorney and, therefore, had no standing to bring the appeal. The court declared:

. . . private counsel in these cases had no right or authority to represent the Commonwealth to the exclusion of the duly qualified district attorney. They were appointed to assist the district attorney in the trial of the cases but the conduct of the trials and the taking of appeals, if any were deemed necessary remained with the district attorney.

Id., 159 Pa.Superior Ct. at 520, 49 A.2d at 189-190 (emphasis added); see also, Commonwealth v. Peacock, 118 Pa.Super. 168, 179 A. 907 (1935); 24 C.J.S. Criminal Law § 1658, p. 1027.

We note that several jurisdictions have addressed this issue and support the proposition that the victim, as a non-party to a criminal prosecution, lacks standing to appeal.

The United States Supreme Court in Linda R.S. v. Richard D. & Texas, et al., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973) (citations omitted) stated:

. . . The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting attorney when he himself is neither prosecuted nor threatened with prosecution ... in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.

In a case procedurally similar to the one which now confronts our Court, the Massachusetts Supreme Court found that the victim/complainant lacked standing to appeal a judicial determination which forecloses further prosecution of that alleged crime. That court held, in Manning v. Municipal Court, 372 Mass. 315, 361 N.E.2d 1274 (1977):

The victim of an alleged crime has no right to challenge a judicial determination which forecloses further prosecution of that alleged crime. Although a victim may seek a complaint against an alleged criminal, the prosecution of any complaint, once issued, is conducted in the interests of the Commonwealth and not on behalf of the alleged victim. Thus, if a judge declines to issue a complaint, determines that there is no probable cause, or finds a defendant not guilty, the complainant has no constitutional right to challenge that determination.

Wharton’s Criminal Procedure, 12th Edition, Vol. IV, 6637, p. 321, states the fundamental rule which the above authorities rely on in denying a victim standing to appeal, “the right of appeal exists only by statute. Only a party to a criminal prosecution may appeal; since a witness is not a party, he has no standing to appeal.” See also, 24 C.J.S. Criminal Law § 1658, p. 1027.

The above discussion clearly illustrates that the state, represented by the District Attorney, is the party plaintiff in a criminal prosecution; the victim/complainant is not considered a party to the proceeding. The victim acts only as a prosecuting witness. Compare, Commonwealth v. Hayes, In re Petition of Pittsburgh Press, 489 Pa. 419, 414 A.2d 318, cert. denied, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980) (victim/complainant was allowed as a party in a criminal prosecution only after the lower court granted his petition to intervene as such). Since appellant, as victim or witness, lacks “party” status in this criminal prosecution, he has no standing to appeal and therefore, this appeal must be quashed.

Appeal quashed.

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 3921.

      . Id., 18 Pa.C.S.A. § 3922.

        . Id., 18 Pa.C.S.A. § 903(a)(l)(2).

      . Pa.R.Crim.P. 133(B)(1) provides:
      When the affiant is not a police officer ..., the complaint shall be submitted to the attorney for the Commonwealth, who shall approve or disapprove without unreasonable delay.

      . Counsel agreed at the habeas corpus hearing that the evidence should only consist of the preliminary hearing transcript.

      . The Commonwealth was represented by Assistant District Attorney William E. Ford.

      . August 20th is the date the notices of appeal were filed in the lower court; they were docketed in the Superior Court on August 26, 1980.

      . We note that numerous civil suits are pending between the various parties based on the same circumstances.

      . Pa.R.Crim.P. 133(B)(3)(ii) allows the complainant to file a complaint, disapproved by the district attorney, with a judge of the court of common pleas for approval or disapproval.

      . The court did not consider the issue because it had not been briefed by either party.

      . A prosecuting witness has been defined as:
      The private person upon whose complaint or information a criminal prosecution is founded and whose testimony is mainly relied on to secure a conviction at the trial. In a more particular sense, the person who was chiefly injured, in person or property, by the act constituting the alleged crime, ... and who instigates the prosecution and gives evidence.

        Black’s Law Dictionary, West Publishing Co., Fifth Edition, p. 1099 (1979).

      . Even if we were to assume that appellant had standing to appeal, we agree with the lower court’s opinion that the complaints were properly dismissed for the prosecution’s failure to establish a prima facie case.


author: POPOVICH, Judge. JOHNSON, Judge, dissenting:

text:
    450 A.2d 694
    COMMONWEALTH of Pennsylvania, Appellant, v. John IANNACCIO.
    Superior Court of Pennsylvania.
    Submitted April 12, 1982.
    Filed Sept. 3, 1982.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Allegheny County directing the Commonwealth to produce a confidential informant in camera. Based on the particular facts of this case, we reverse.

A review of the facts reveal the following: On August 15, 1978, Detectives Mullen and Butler secured a warrant to search the premises of the appellee, John Iannaccio, located at 5129 Roma Way, Pittsburgh, Pa. The probable cause section of the warrant read:

“Affiants received information from a confidential reliable informant that John Iannaccio Jr. aka Jack was dealing and concealing LSD from the above described premises. Informant stated that he was in the premises within the past 24 hours and did observe Jack sell LSD to an unknown white female, who appeared to be around 16 years old. Informant stated that Jack was charging $3.00 apiece for the LSD. Informant stated that he oberved [sic] several small tablets which Jack stated that he was going to sell for $3.00 apiece, but would sell them cheaper if the buyer bought in quantity. Informant has proven to be reliable by giving information which has led to the arrest and conviction of James Payne jr., Darryl Robinson and Gregory Beal all for VCSSDCA, [sic] The most recent conviction being that Beal [sic] in June of 1978.”

The warrant was executed the day it was issued, and, as a result thereof, drugs were seized on the premises searched. Also, appellee was arrested at the scene. Thereafter, following a preliminary arraignment, appellee was charged by Information with possession of controlled substances, possession with intent to deliver controlled substances, possession of a small amount of a controlled substance and former convict not to carry a firearm.

On November 13, 1978, appellee’s counsel served upon the Office of the District Attorney of Allegheny County a demand for discovery, pursuant to Pa.R.Crim.P. 305 A, which sought, inter alia, disclosure of the informant referred to in the application for a search warrant. The Commonwealth refused the request. Appellee then presented the lower court with a motion for relief under Pa.R.Crim.P. 305 E,7 seeking the court to apply the sanction of Rule 305 E, and prohibit the District Attorney from introducing at the time of trial, as evidence, the information not disclosed; or, in the alternative, such order as the court deemed just under the circumstances. Such motion was denied. Thereafter, appellee filed an omnibus pretrial motion seeking suppression of all the evidence seized pursuant to the warrant in question. A hearing on said motion was scheduled to be held on the date set for trial. However, before the case was listed for trial, appellee filed a motion for reconsideration under Rule 305 E, seeking the disclosure of the informant’s identity “not to aid him in his defense against [the] charges, but rather to afford him an adequate opportunity to challenge the veracity of the sworn statement included by the police in securing the search warrant.” By so doing, appellee sought “to establish that the evidence relied upon by the affiant included a material false statement that the affiant knowingly and deliberately or with reckless disregard for the truth acted upon said information[.]” A hearing on the reconsideration motion was held, and, at the completion of same, the court ordered the Commonwealth to produce the informant in camera. However, on oral motion by the Commonwealth, the court set January 4-5, 1979, as the time for a hearing to reconsider its order.

At the proceeding, Det. William Mullen testified that on August 15,1978, he received a phone call from an informant known to him for some SV2 years—this individual had supplied the officer with information leading to arrests and/or convictions in about eight cases. The caller requested that the two meet at approximately 9:00 a. m., near a back door to the Public Safety Building. At the scheduled time and place, the informant appeared and told the witness that he had been to the appellee’s residence within the last twenty-four hours in the company of a female, that the female knew the appellee and that she was observed buying drugs from the accused. Based on this information, the police, without any prior surveillance or observance of suspicious activity on the premises, secured and executed a search warrant of the appellee’s home, at approximately 10:45 a. m. During the course of the search, various types of drugs were seized and the appellee was arrested on the scene.

The appellee’s case consisted of a defense of “mistaken identity.” In support thereof, appellee’s father and mother, with whom the appellee had lived with all of his life, testified to his whereabouts during the 24-hour period immediately preceding his arrest. To explicate, the father recounted getting up at 10:30 a. m. on August 14, 1978, and not leaving the premises before 6:30 p. m., when he left to play bingo at a nearby church. The father stated he returned home at 10:45 p. m., but, before going to bed, he stayed up until 2:30 a. m. to watch television in the living room. Also, at this point in the evening, the father noted that his son had yet to return from a week-long trip to Atlantic City, New Jersey. In fact, it was not until 7:00 a. m. on the morning of the 15th of August, when the witness awoke to take some pills, that he went downstairs and noticed a set of luggage resting on the living room floor. The witness proceeded to the appellee’s room and found his son sleeping. Thereafter, the witness went back to bed and slept until the police arrived.

The next witness to appear for the defense was appellee’s mother. Mrs. Iannaccio testified that during the time that her husband went to play bingo, on the evening of the 14th of August, she remained home alone. She also recalled that when she went to bed at 2:00 a. m., her son had not yet returned from his trip to Atlantic City. Further, albeit the witness could not say for certain when her son returned home, she remembered hearing a vehicle and then a single set of footsteps in her home between 5:00 and 6:00 a. m. The witness went on to remark that she got up about 6:00 or 7:00 a. m. and “noticed a form” in her son’s bed. She then walked downstairs to read the newspaper, and, she stated, no one came to the house while she was up, save for the police.

At the conclusion of the hearing, the court reaffirmed its earlier order and, in addition, certified the case for appeal to this Court, which we granted. See note 1, supra.

In determining that the lower court erred regarding its finding of fact as to the Commonwealth’s case, we never reach the question which was specifically reserved by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 170, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), and as of yet not ruled upon in this jurisdiction—i.e., whether a reviewing court must ever require the disclosure of the identity of an informant once a substantial preliminary showing of falsity has been made. But see United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1971), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973); United States v. Swanson, 399 F.Supp. 441 (D.Nev.1975); United States v. Danesi, 342 F.Supp. 889 (D.Conn.1972); State v. Luciow, 308 Minn. 6, 240 N.W.2d 833 (1976).

To begin with, although the proceeding below was not captioned a suppression hearing, we will treat it as such, inasmuch as the lower court’s conclusion to discredit the affiant’s testimony, if upheld even after the production of the informant, would have rendered the warrant invalid and the evidence seized as a result thereof suppressible. (RR. 61A-62A) Having established the procedural posture of the case at bar, we next observe that in Pennsylvania it is well established that criminal defendants have a right to go beyond the “four corners” of the search warrant and challenge deliberate and material misstatements of the government affiant. Commonwealth v. Bradshaw, 290 Pa.Super. 162, 434 A.2d 181 (1981). However, it is the Commonwealth, and not the defendant, that has the initial burden of going forward with evidence and of establishing that the challenged evidence was not obtained in violation of defendant’s rights. The rationale for such a holding was set forth by this Court in Commonwealth v. Ryan, 296 Pa.Super. 222, 229-230, 442 A.2d 739, 743 (1982), wherein we stated, concerning the defendant’s right to test the veracity of the information contained in a search warrant:

“ 'The burden is on the Commonwealth to establish the validity of the search warrant and the burden is not carried by merely introducing the search warrant and affidavit with no supporting testimony because then the only way for the defendant to challenge the veracity of the information is to call witnesses himself and this effectively shifts onto him the burden of disproving the veracity of the information, an almost impossible burden. If the procedure followed by the Commonwealth in this case were upheld then policemen could recite in an affidavit as probable cause for the issuance of a search warrant any and all statements which they felt were of help in obtaining the warrant, irrespective of the truth or veracity of those statements, their legality or illegality, or constitutionality or unconstitutionality, realizing that such statements would be insulated from defendant’s right to cross-examination since the Commonwealth did not have to call witnesses who would be subject to cross-examination to establish the facts necessary to support the issuance of the search warrant. Therefore, we must hold that the Commonwealth failed to carry its burden of proof at the suppression hearing. To rule otherwise would permit police in every case to exaggerate or to expand on the facts given to the issuing authority merely for the purpose of meeting the probable cause requirement, thus precluding an objective determination of whether probable cause for the warrant existed.’ ” (Citation omitted) (Emphasis added)

Before examining the facts instantly, we observe that “[ujnder our standard of review of suppression court hearings, the findings of the trier of fact, supported by the record, may not be disturbed. Commonwealth v. Sparrow, 471 Pa. 490, 497, 370 A.2d 712, 715 (1977).” (Emphasis added) Commonwealth v. Martin, 481 Pa. 515, 520, 393 A.2d 23, 25 (1978). Where, as here, a suppression court has made a specific finding of fact (i.e., the affiant’s credibility,) and such finding is wholly lacking support in the record, we are not bound by it. See Commonwealth v. Wright, 474 Pa. 92, 376 A.2d 988 (1977). Accord Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) (“Where they[—the State courts—]have made explicit findings of fact, those findings conclude us and form the basis of our review—-with one caveat, necessarily, that we are not to be bound by findings wholly lacking in evidence. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 [(1960)].”); see also Schmidt v. Hewitt, 573 F.2d 794 (3rd Cir. 1978). In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Culombe v. Connecticut, supra, 367 U.S. at 604, 81 S.Ct. at 1880; Commonwealth v. Hamlin, 302 Pa.Super. 86, 448 A.2d 538.

With the basic principles delineated above in mind, a review of the record is necessary. In the case sub judice, the officer who received the information and conducted the search that produced the incriminating evidence, a veteran of five years with the Pittsburgh Police Department, testified: 1) that he had known the unpaid informant for approximately three, three and a half years; 2) that the informant had supplied information in the past leading to the arrests and/or convictions in some eight cases; and 3) that the informant witnessed the appellee sell LSD to a 16-year old white female at the premises ultimately searched.

Based on the information recited in the warrant reproduced supra, the neutral magistrate had sufficient information from which to conclude that the informant was “credible” and his information “reliable.” Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975); see also Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980). Moreover, as a general proposition, the legality of a search warrant depends upon the sufficiency of the underlying affidavit on its face and the question is whether the magistrate could determine the existence of probable cause upon the matter asserted in such affidavit. United States v. Bolton, 458 F.2d 377 (9th Cir. 1972). In light of the facts here, there is no reason to overturn the magistrate’s implicit finding that the officer reasonably believed the informant to be reliable and credible. See United States v. Valenzuela, 596 F.2d 824 (9th Cir. 1979), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071. The officer who testified, in open court, did so fully and in precise detail as to what the informer told him and as to why he had reason to believe the information was truthful. The officer was under oath, was subject to cross-examination and never wavered from his position as to the facts surrounding the securing of the warrant, nor did he alter his view as to the existence of the confidential informant. To substantiate such facts, the Commonwealth offered Det. Mullen’s partner (Det. Butler), who was present when the informant relayed his information concerning the appellee, to the defense for cross-examination. The prosecution felt “that his testimony would be corroborative and accumulative of that of Detective Mullen[,]” (RR. 94A), and saw no need to examine such witness. The defense did not accept the prosecution’s offer to question the witness, despite the opportunity to do so. This abstention was rather ill-advised since the issue of probable cause to execute the search warrant was predicated, at least in part, upon the credibility of the affiant.

Here, the defense had the opportunity to offer any evidence that may have been available to challenge the propriety of the warrant, and failed to exercise that right to its fullest potential; e.g., cross-examining all possible witnesses who would have shed light on the question of probable cause or attacking the informant as to the legitimacy (“existence”) of the prior arrests and/or convictions provided to the police as the basis for his reliability. On this exact point, we note some of the cogent observations made by LaFave, in his treatise on the Fourth Amendment, that bear repeating:

“The McCray[v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) ] case
specifies no standard to guide the judge’s discretion, other than that he be ‘satisfied’ of the informant’s reliability. Presumably this means that, if the .officer makes a good witness, his story will be accepted without scrutinizing the underpinnings. Perhaps the vagueness of the standard is not of great consequence if * * * his decision is unreviewable on appeal, like the discretion on sentencing. But does this give the moving party a fair hearing of his challenge to probable cause, especially if he has made a substantial preliminary challenge to the very existence of the informer? Such an issue is not like the determination of sentence, for which purpose the judge is entitled to roam outside the record and play his hunches. It is the kind of issue that traditionally is determined on a record and is reviewable on appeal.” (Footnote omitted) (Emphasis added) LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment, Vol. 1, § 3.3 at 575 (1978).

Thus, in considering only the prosecution’s evidence, and so much of the defense’s evidence which remains uncontradicted, see Culombe v. Connecticut, supra, we find that the lower court abused its discretion in finding as a fact that the Commonwealth failed to prove the existence of probable cause to justify the issuance of the warrant. See Commonwealth v. Hamlin, supra. Stated conversely, we conclude that, premised on the clear and uncontroverted record, the Commonwealth satisfied its burden of proving the propriety of the warrant. Commonwealth v. Ryan, 296 Pa.Super. 222, 442 A.2d 739 (1982). Additionally, assuming for the purpose of discussion that appellee made a substantial preliminary showing of intentional falsity or reckless disregard for the truth which was necessary to the finding of probable cause by offering the testimony of his parents, we conclude that appellee failed to establish his allegation of the affiant’s reckless disregard for the truth by a preponderance of the evidence. See United States v. House, 604 F.2d 1135 (8th Cir. 1979).

It must be conceded that “[rjesolution of questions of credibility is for the trier of fact, [but] where as here, that resolution is [not] based on credible evidence, it will ... be disturbed on appeal. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977).” Commonwealth v. Penn, 497 Pa. 232, 238, 439 A.2d 1154, 1157 (1982).

Based on the aforesaid, we determine that the lower court’s factual finding, as it pertains to the affiant’s credibility, is unsupported by the record, and, therefore, does not bind this Court. See Culombe v. Connecticut, supra; Commonwealth v. Martin, supra; Commonwealth v. Wright, supra; Commonwealth v. Hamlin, supra. Accordingly, we reverse the order of the lower court.

JOHNSON, J., files a dissenting statement.

JOHNSON, Judge, dissenting:

After a thorough review of both the record and the law, I must dissent. The lower court judge ordered the Commonwealth to produce its confidential informant in camera because the judge, after hearing and considering the evidence, determined that the existence of the informant was suspect. It is my belief that on the instant facts, this determination was justified. As our scope of review here is merely to decide whether the evidence supports the findings and legitimacy of conclusions drawn from these findings, Commonwealth v. Guinther, 290 Pa.Super. 441, 434 A.2d 834 (1981), I would affirm on the able Opinion of Judge McGregor below.

      . By Per Curiam order dated July 29, 1980, this Court granted the Commonwealth’s petition for permission to appeal from the lower court’s order. 42 Pa.C.S.A. § 702(b) (Interlocutory appeals by permission); Pa.R.App.P. 1311(b).

      . 35 P.S. § 780-113(a)(16).

      . Id at § 780-113(a)(30).

      . Id at § 780-113(a)(31).

      . 18 Pa.C.S.A. § 6105.

      . Rule 305 A reads:
      Before any disclosure or discovery can be sought under these rules by either party, counsel for the parties shall make a good faith effort to resolve all questions of discovery, and to provide information required or requested under these rules as to which there is no dispute. When there are items requested by one party which the other party has refused to disclose, the demanding party may make appropriate motion to the court. Such motion shall be made within fourteen (14) days after arraignment, unless the time for filing is extended by the court. In such motion the party must set forth the fact that a good faith effort to discuss the requested material has taken place and proved unsuccessful. Nothing in this provision shall delay the disclosure of any items agreed upon by the parties pending resolution of any motion for discovery.

      . Rule 305 E reads:
      If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

      . It is interesting to observe, despite the lower court’s initial determination on the issue of credibility, the opinion the trier of fact had regarding the officers in question; viz.:

      “THE COURT: Excuse me. May I interrupt right here?

        Detective Mullen, I know and most of the people in this courtroom know that you and your partner, Francis Butler, are two of the most able and effective police officers in the City; and you know an awful, awful lot of people; and you say to me that this informant meets with you in person somewhere but that person can’t meet with me. Is that what you are saying?” (Emphasis added) (RR. 73A)

      . We note for edification purposes, a determination by the lower court that the informant misrepresented the facts upon which the facially valid warrant was based would not be grounds to suppress the evidence; of course, to deny a motion to suppress, the information secured must have been obtained in good faith by the police on what appeared to be reliable information. Commonwealth v. Bradshaw, 290 Pa.Super. 162, 434 A.2d 181 (1981).


author: WATKINS, Judge:

text:
    450 A.2d 700
    COMMONWEALTH of Pennsylvania v. Karen Louise GIFFORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1981.
    Filed Sept. 3, 1982.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before CAVANAUGH, WATKINS and VAN der VOORT, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Lancaster County, Criminal Division, and involves the defendant-appellant’s appeal from a judgment of sentence imposed by the court below after the defendant pled guilty to twelve (12) counts of forgery which had been set forth in four (4) indictments. The defendant claims that the court below erred when it imposed separate sets of costs on the defendant for each indictment. The four indictments had been consolidated into one proceeding.

Defendant cites 19 P.S. 1294 in support of her contention that she should have been assessed costs on only one information since all twelve (12) counts of the forgery charges were consolidated into one guilty plea proceeding. That section made it unlawful to impose costs in and on more than one indictment where all the charges “might legally have been included in one complaint and in one indictment by the use of different counts”. However, this provision was repealed by the legislature, effective June 27, 1979. The successor statute, 42 Pa.C.S.A. 1726, deals with costs generally but does not contain the requirements of the former section. The defendant was sentenced on September 2, 1980, after the repeal of the former section. Thus, we find no reason to hold the court’s sentence invalid. See Footnote # 1 in Commonwealth v. Dorsey, 280 Pa.Superior Ct. 388, 421 A.2d 777 (1980).

Judgment of sentence affirmed.


author: CAVANAUGH, Judge:

text:
    450 A.2d 701
    COMMONWEALTH of Pennsylvania v. Robert F. McCORMICK, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 6, 1981.
    Filed Sept. 10, 1982.

      James J. Riley, Pottsville, for appellant.
    Richard B. RuSsell, District Attorney, Pottsville, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Appellant, Robert F. McCormick, Jr., was convicted by a Schuylkill County jury of burglary and theft by unlawful taking. After the denial of post-verdict motions, appellant was sentenced to 11 to 22 months imprisonment, and. to pay restitution to the victim, for burglary; sentence was suspended on the theft conviction. Appellant’s sole contention in this appeal is that the evidence was insufficient to sustain his convictions. We agree and, accordingly, vacate the judgments of sentence and discharge appellant.

In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Cannon, 297 Pa.Super. 106, 109, 443 A.2d 322, 323 (1982). It is settled law that while guilt may be proved by direct or circumstantial evidence, it may not rest upon mere suspicion or conjecture. Commonwealth v. Jones, 291 Pa.Super. 69, 72, 435 A.2d 223, 225 (1981); Commonwealth v. Beauford, 286 Pa.Super. 297, 300, 428 A.2d 1000, 1002 (1981). Using this standard, the facts adduced at appellant’s trial may be summarized as follows:

The victim, Mark Bevan, lived alone in a first floor apartment at 1441 Howard Avenue in Pottsville, Pennsylvania. On the evening of April 1, 1980, appellant, whom the victim has known for several years, dropped by for a visit. While talking to appellant, Bevan went to his bedroom closet and took some cash from a hiding place inside a pair of jeans. The evidence does not make clear whether appellant observed Bevan removing the money. Shortly thereafter, the two men left the victim’s apartment together and appellant drove away in his girlfriend’s cream-colored Plymouth. Bevan later returned to his apartment and placed $350 in his closet hiding place, leaving a total of approximately $450.

The following morning, the victim locked his apartment and left for work. At approximately 11:40 a.m., appellant called the victim’s place of employment and spoke to Brian Bevan, Mark’s brother. Appellant asked if the victim was at work and, when told that he was, asked that Mark call him at lunch time. At trial, Brian testified that he had spoken to appellant at a similar hour on five or six occasions in the past. Mark returned appellant’s phone call shortly after noon but received no answer.

At 11:45 a.m. on April 2nd, the victim’s upstairs neighbor, Ervin Bisel, looked outside his window and saw a woman, carrying a tan bag, leave the apartment building and enter a cream-colored Plymouth. At noon, Bisel saw appellant go into the main entrance of the building and exit running two to three minutes later. In his hands was a small tan package which he did not have upon entering the building. Appellant drove away in the same cream-colored Plymouth that Bisel saw earlier. Although suspicious, Bisel did not investigate whether anything amiss had occurred. He did glance at the front door of the victim’s apartment when he left the building at 2:30 p.m., but did not notice anything unusual.

Howard Rowan also testified for the Commonwealth that, between 11 a.m. and noon on April 2nd, he saw appellant walking casually in front of 1441 Howard Avenue. Appellant did not appear to be carrying anything when Rowan saw him.

Mark Bevan arrived at his apartment at approximately 3:30 p.m. and noticed that his front door and a living room window were open. He also found that the $450 was missing from his closet along with $50 in change that he kept in a jar on his dresser. After talking to Bisel, Bevan went to appellant’s home and confronted him with the break-in. Appellant denied the victim’s accusations but later, when he returned with Bevan to 1441 Howard Avenue and was identified by Bisel, admitted that he had been outside the apartment building that day. He continued to deny that he had been inside Bevan’s apartment.

Appellant remained with the victim until the arrival of the police. After an on-the-scene investigation revealed a popped lock on the living room window, police officer Robert Freiler concluded that a forced entry had been made through the window. The window was on the east side of the apartment building apparently not visible from Ervin Bisel’s observation point upstairs. There was no sign of forced entry at the front door of Bevan’s apartment. Appellant was then placed under arrest. No money was found on his person.

After the Commonwealth presented its case, appellant demurred to the evidence on the grounds that it was insufficient. That motion was denied. Appellant then presented no trial defense, instead asking for a directed verdict. That motion was also denied.

In this appeal, appellant again argues that the foregoing evidence proves only his presence at the crime scene and nothing more. Since mere presence, standing alone, is insufficient to prove appellant’s guilt, Commonwealth v. Goodman, 465 Pa. 367, 370, 350 A.2d 810, 811 (1976); Commonwealth v. Jones, 291 Pa.Super. at 72, 435 A.2d at 225, appellant contends that he is entitled to a discharge.

The lower court, in its opinion, considered the following evidence to support the jury’s guilty verdict:

In considering the facts set forth supra, the jury could have inferred that the defendant knew the exact location of the victim’s money; that he telephoned Bevan’s place of work to make certain that Bevan was not at home; that since he knew the location of Bevan’s money he was able to enter the apartment, disturb nothing therein except the clothing in the closet and, within a short period of time thereafter exited the apartment with a small package under his arm. Moreover, denying that he was at Bevan’s apartment that day, the defendant exhibited signs of guilt. . . (Opinion of Lower Court at 3-4).

While the scope of our review is limited, we are unable to conclude that this evidence raises anything more than conjecture that appellant committed the crimes with which he was charged.

First, we do not agree that the jury could have inferred, from the fact that appellant was in the victim’s bedroom on April 1st when the victim took money from his closet, that appellant knew the exact location of the money. The evidence does not establish that appellant saw Bevan go into his closet or, even assuming that he did, that appellant knew Bevan went there to remove money hidden inside. Second, the testimony of Brian Bevan indicates that it was not unusual for appellant to telephone the victim at work around the lunch hour. Thus, it cannot be inferred, from the fact that appellant phoned the victim near lunch time on April 2nd, that he did so in order to ascertain whether the victim was at home. Third, since no inference can be made that appellant knew where Bevan’s money was hidden, we similarly cannot infer guilt from Bisel’s testimony that appellant entered the building and exited a short time later with a package. In this regard, we note that Howard Rowan, who also observed appellant outside 1441 Howard Avenue, testified that appellant was not carrying a package. Finally, while appellant did not readily admit to being in the vicinity of the victim’s apartment, he was apparently willing to accompany the victim back to the crime scene and face his accuser, Bisel. Under these circumstances, we are reluctant to conclude, as does the court below, that appellant’s behavior exhibited signs of guilt.

We find other problems with the evidence presented by the prosecution as well. Most notably, we are troubled by Bisel’s testimony that he saw an unidentified woman leave the premises fifteen minutes before appellant’s arrival and that she, too, was carrying a package. This-evidence makes it plausible that she, and not appellant, committed the instant crimes. The Commonwealth’s failure to eliminate the possibility of another intruder makes this case distinguishable from Commonwealth v. Payne, 299 Pa.Super. 378, 445 A.2d 804 (1982) (Brosky, J. dissenting). Furthermore, in that case, it was proved that defendant knew the precise location of the item later discovered to be missing. Here, on the other hand, it is far from clear that appellant knew where Bevan’s money was hidden or that he knew money was hidden at all.

In short, the facts before us present a classic “mere presence” situation. We are persuaded that the Commonwealth was able to prove only that appellant was outside 1441 Howard Avenue on August 2nd. Defendants have been discharged on the basis of insufficient evidence in stronger factual cases. See, e.g., Commonwealth v. Goodman, supra; Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Jones, supra.

The possible scenarios which might have occurred here are endless and it is not within our province to guess which one is most likely. We must decide only if the evidence was sufficient to prove beyond a reasonable doubt that appellant burglarized the victim’s apartment. We find that it does not.

The judgments of sentence are, therefore, vacated and appellant is discharged.

      . The crime of burglary is defined as follows:
      A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
      18 Pa.C.S.A. § 3502(a).

      . The crime of theft by unlawful taking or disposition is defined as follows:
      (a) Movable property.—A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
      (b) Immovable property.—A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.
      18 Pa.C.S.A. § 3921.

      . Although not raised, and unnecessary to our disposition of this appeal, we note that 18 Pa.C.S.A. § 3502(d) precludes appellant’s conviction both for burglary and for the offense it was his intent to commit after the burglarious entry.


author: WICKERSHAM, Judge:

text:
    450 A.2d 704
    COMMONWEALTH of Pennsylvania v. James DEVEREAUX, Appellant.
    Superior Court of Pennsylvania.
    Argued June 21, 1982.
    Filed Sept. 10, 1982.

      George P. Noel, Media, for appellant.
    Joseph Carroll, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   WICKERSHAM, Judge:

The district attorney of Chester County, by information, charged James Devereaux, appellant herein, with having, on February 29,1980, driven a vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving.

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined.—A person shall not drive any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;

75 Pa.C.S. § 3731.

On May 29, 1980, James Devereaux went on trial before the Honorable Thomas A. Pitt, Jr. and a jury, following which trial Devereaux was found guilty. Post-trial motions were filed, argued and denied; on December 5, 1980, Devereaux was sentenced by the court to pay a fine of $100 plus costs. This appeal followed.

At trial, Anthony D. Minnis testified for the Commonwealth. He said he was twenty-two years of age and on February 29, 1980 he was a volunteer with the Berwyn Fire Company. At about 10:30 p. m. on that night he was in the driveway of his home about three-tenths of a mile from the intersection of Devon State Road and Spencer Road. It was a cold, clear and dry evening. He heard a crash and proceeded to the intersection, arriving in less than a minute. Mr. Minnis testified as follows:

A. ... a car off to the side of the road with the headlights on. I proceeded down to the scene to see if it had been an accident. At which time I determined that it was.
Q. Did you see anyone in the area of that car?
A. Only one person.
Q. And this person that you saw in the area of that car, where did you see him?
A. Outside the car.
Q. What was he doing?
A. He was attempting to get into the car and I would imagine to check on the person inside.
Q. Did he have anything in his hand?
A. Yes, sir. He had a flashlight.
Q. But he was standing outside the car?
A. Yes, sir.
A. I observed that he now had the door open, the person standing outside of the vehicle, and that upon my arrival, he was leaning into the car. I asked him to move and then I noticed another person seated in the passenger seat of the vehicle who appeared to be injured.
Q. Did you see anyone else in that car?
A. No, sir.
Q. Did you see anyone else standing around that car?
A. No, sir.
Q. What did you do after you moved this person with the flashlight out of the way?
A. I climbed into the driver’s side of the vehicle and checked the patient, the obvious things, like air-way breathing, anything of that nature, any obvious injuries.
Q. What, if any, damage to the car did you observe?
A. I noticed damage to the right-hand passenger door.
Q. And describe that damage for us, if you would.
A. It appeared that the door had been pushed in by some object. There was also glass on the floor of the vehicle, the door was pushed into the passenger compartment.
Q. Now, you say you observed glass in the car; did you observe glass outside the car?
A. No, sir.
Q. Now, where in the car did you see the glass?
A. On the floor of the passenger side.
Q. Anywhere else?
A. No, sir.
Q. Did you notice any odor at this time?
A. Yes, sir.
Q. What odor was that?
A. The odor of alcohol.
Q. And did it appear to be a strong or weak odor?
A. Strong odor.
Q.' All right. Did you talk to him?
A. Yes, I did. Upon arrival I asked if he could speak to me, at which time he did mumble. And I advised him that he had been in an auto accident, at which time he informed me that he hadn’t been. I once again told him that he had been in an auto accident, at which time he informed me once again that he hadn’t been, and that I was attempting to set him up.
Q. Did an ambulance person arrive?
A. Yes, they did.
Q. Did you observe the defendant get out of the vehicle? A. Yes, I did.
Q. Would you describe what happened?
A. When we got to the driver’s side of the vehicle, we attempted to assist him out of the vehicle. At which time he stated that he did not want any help. So we released him and he fell to the ground. At which time we picked him up again and then placed him on the litter.
A. I feel that due to his actions and the smell of his breath, that he was obviously drinking. And it seemed that he had had too much to drink.
Q. Is it your opinion that he was intoxicated?
A. Yes.

Record at 12-22.

Alan L. Singmaster of 406 Devon State Road, Chester County also testified for the Commonwealth.

Q. And do you remember something unusual happening that evening?
A. Yes, I do.
Q. And what did you hear?
A. I heard a crash, sounded like an automobile hitting something like a telephone pole, or a wall, or a tree.
A. After I called the police, I had to get dressed, because I was in pajamas, and it was a cold night. Got my coat on and then I went over.
Q. Did you see if anyone was in the car at that time?
A. I believe the other witness was in the car, as well as the defendant.
Q. And what condition did the car appear to be in when you saw it?
A. I didn’t observe the car that much. One side of the car looked like it was pushed in a bit from hitting something like the telephone pole.
Q. Did you stand near the car?
A. I was next to the car.
Q. Did you see—you saw Anthony Minnis inside the car?
A. As it turned out, yes.
Q. Did you hear him talking to the defendant?
A. From time to time, yes.
Q. Would you tell the Court what it was you heard the defendant say?
A. Well, to the best of my recollection, I heard Anthony Minnis trying to get the defendant to say something. Initially, he either—I couldn’t hear anything that he was saying, or some mumbles. And then at another time, I heard him responding to his questions. And at one point he did mention words to the effect that he was being set up, he wasn’t in an accident, he was being set up.

Record at 41-44.

The Commonwealth completed its case by calling John Howard Haggerty, a full-time police officer with the East-town Police Department, Chester County, who discussed his investigation of the accident. There were no other witnesses called and the jury returned a verdict of guilty as aforesaid.

In this appeal, Devereaux argues that the Commonwealth has not met its burden of proving beyond a reasonable doubt that he was driving the vehicle at the time of the alleged offense.

In Commonwealth v. Taylor, 237 Pa.Super. 212, 352 A.2d 137 (1975), we had before us a collision between two automobiles with no witnesses to the accident except for Taylor, the appellant, who did not testify. Witnesses arrived at the scene immediately after the accident (as in our factual situation) and testified as to the location and condition of the two cars. Witnesses testified that the appellant Taylor was the only occupant of the Ford Thunderbird vehicle involved and the other vehicle, a Ford Galaxie, contained the dead body of one Alfred J. Brion. No one else was in either vehicle.

Speaking through former President Judge Watkins, we said:

In Commonwealth v. Kallus, 212 Pa.Super. 504, 507, 508, 243 A.2d 483, 485 (1968), we held that ‘It is not necessary that the vehicle itself must be in motion but it is sufficient if the operator is in actual physical control of the movements of either the machinery of the motor vehicle or of the management of the movement of the vehicle itself.’ The word ‘operate’, therefore, does not mean the Commonwealth must prove the defendant was, in fact, operating the vehicle in motion but must only prove beyond a reasonable doubt that the defendant was in the vehicle, behind the wheel and had the control and management of it.
It seems illogical and unreasonable to permit the operator of a vehicle to be exonerated from the responsibility and liability for his actions simply because there were no witnesses except the appellant who saw the accident or the appellant driving. Under the circumstances of this case the trier of facts had sufficient circumstantial evidence to find that the defendant was in actual physical control of the vehicle.
In Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974), the appellant was seen seated behind the wheel of an automobile in which he was seated, the vehicle was parked mostly on the highway, the motor was running and the lights were on. This Court held that the appellant was driving and had driven to where he was found, stopped there without pulling completely off the highway, left the motor running to provide some warmth, left the lights on to provide some safety, and then had fallen asleep. In short, the trier of fact could reasonably infer that the car was where it was and was performing as it was because of appellant’s choice from which it followed that appellant was in ‘actual physical control’ of and so was ‘operating’ the car while he slept.
In the instant case, the actual driving of the automobile ended in a violent collision that sent his vehicle off the highway. He was seated on the driver’s side after the crash, and as in Commonwealth v. Kloch, supra, it could be inferred that the car was where it was and the condition in which it was because of appellant’s choice “from which it follows that appellant was in ‘actual physical control of’ and so ‘operating’ the car....” This ‘physical control’ continued in the appellant after the collision had immobilized his car.

Judgment of sentence affirmed.

Id. 237 Pa.Super. at 216-217, 352 A.2d at 139-40.

In Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980), Judge Spaeth set forth the burden resting upon the Commonwealth when he said’:

The test in determining whether the evidence is sufficient to sustain a jury verdict ‘is whether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, is it sufficient to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt?’ Commonwealth v. Cristina, 481 Pa. 44, 391 A.2d 1307, 1309 (1978), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979). Our inquiry is bound by two poles. While the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence, a conviction may not be based on mere conjecture or surmise. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979); Commonwealth v. Navarro, 251 Pa.Super. 125, 380 A.2d 409 (1977). Applying this test here we find the evidence sufficient.

Id. 277 Pa. Super, at 36-37, 419 A.2d at 648.

In Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981), we found that there was sufficient evidence for the jury to conclude that appellee was driving the truck and therefore we reversed the trial court’s order arresting judgment. When the arresting officer arrived at the scene, Slout was out of his vehicle and some distance from the scene staggering and swaying as he was attempting to cross the street. We said:

The fact that Officer Lowmiller did not actually see Slout driving the truck is not fatal to the Commonwealth’s case. In Commonwealth v. Palmer, 265 Pa.Super. 462, 402 A.2d 530 (1979) the defendant argued that the evidence was insufficient as a matter of law to convict him of driving under the influence because no one saw him actually driving the vehicle. The court rejected this argument because the defendant had admitted that he was the operator of the vehicle to the investigating police officer and such admission was admissible at trial as an exception to the hearsay rule.
Here, the officer testified that on three different occasions Donald Slout indicated that he was the driver. The fact that he was under the influence of alcohol when he initially made this admission does not affect the admissibility of these statements but rather goes to the weight which the jury may have given this testimony. At trial the appellee did not deny that he was the driver but only stated that he did not know if he was operating the truck.

Id. 288 Pa.Super. at 477, 432 A.2d at 612.

In Commonwealth v. Matsinger, 288 Pa.Super. 271, 431 A.2d 1043 (1981), we reversed the order of the lower court sustaining appellee’s demurrer because we found the evidence was sufficient to warrant an inference that appellee was driving while under the influence of alcohol. In Mat-singer, when the police officer, who did not witness the appellee actually driving, approached the scene he saw appellee sitting in the driver’s seat and leaning against the door. He noticed also that the engine was running, the transmission was in gear and the headlights were on.

We said:

In sustaining appellee’s demurrer the lower court reasoned that the legislature, in enacting the current Motor Vehicle Code, “altered the elements of conduct which constitute offenses under [sections 1543 and 3731] by replacing the word ‘operate’ with the word ‘drive,’ ” opinion of the Lower Court at 5, and thereby required the Commonwealth to present direct evidence that the vehicle was in motion at the time of the offenses charged, id. at 9-11. The lower court relied upon Commonwealth v. Brown, 268 Pa.Super. 206, 407 A.2d 1318 (1979), in which this Court, faced with comparable facts, held that the legislature had intended to restrict the range of conduct violative of section 3731 when it substituted the word ‘drive’ for the word ‘operate.’ Id., 268 Pa.Superior Ct. at 208, 407 A.2d at 1319. In Brown, the lower court had equated the term ‘driving’ with ‘operating’ in instructing the jury on the elements of driving while under the influence of alcohol. Id. Finding the instruction to be incorrect, this Court stated:
[T]he trial court’s instruction to the jury that the vehicle need not be in motion was error. In order to prove that a defendant charged with a violation of section 3731 ‘drove’ a motor vehicle, evidence must be adduced that the vehicle was (at the time in question), in fact, in motion. The jury in this case, under the instructions actually given by the trial court, were not afforded the opportunity to examine the evidence according to the law.

Id., 268 Pa.Superior Ct. at 211, 407 A.2d 1320 (emphasis in original). See also Commonwealth v. Wenzel, 13 Pa.D. & C.3d 576, 577-78 (C.P. Montgomery Co. 1979).

As the above-quoted passage indicates, Brown requires proof that a defendant’s vehicle was in motion in order for the defendant to be convicted of driving while under the influence of alcohol. Brown does not, however, require direct evidence of motion, as the lower court here concluded. The Commonwealth contends that it presented sufficient circumstantial evidence to warrant an inference that appellee’s van had been in motion, and therefore that appellee had violated sections 1543 and 3731. To avoid a demurrer on the facts of this case, the inferred fact must follow beyond a reasonable doubt from the evidence adduced at trial.

Id. 288 Pa.Super. at 275-76, 431 A.2d at 1045.

Here, it is proper to conclude beyond a reasonable doubt that defendant had been driving the vehicle when it crashed. This was a single car accident and less than a minute after it occurred, witnesses arrived on the scene. Mr. Minnis, the first witness, testified that when he arrived at the accident scene after hearing the crash, there was no one in the vicinity other than the appellant and a man whom he saw standing by the car. The man, with a flashlight in one hand, was reaching through the driver’s window with the other hand while leaning his head into the window. The jury could properly conclude that this man was not the driver because his motions were consistent with those of a man attempting to open the driver’s door to determine the condition of the car’s occupant, rather than those of a driver who had just exited from the vehicle following a substantial impact. The conclusion is further bolstered by Mr. Minnis’ testimony that this unknown man told him when he arrived that he had already called the police. Defendant Devereaux was intoxicated and was the only person in the car. He was sitting on the passenger side, bent over, with his hands on his head. The passenger side had hit a telephone pole. The passenger side door was smashed in, and the passenger window was shattered, yet defendant’s right side showed no signs of injury. His only apparent injury was a cut on his hand. There was glass all over the inside front section of the car, except for the driver’s seat. Defendant was sitting on glass on the passenger side of the car. The physical facts clearly prove that defendant was driving the car at the time of the accident. Record at 12-66.

Judgment of sentence affirmed and jurisdiction of the Superior Court of Pennsylvania relinquished. The lower court is directed to enforce the sentence.

      . Appellant frames the issues on this appeal in the following manner:

        I. Did the Commonwealth establish beyond a reasonable doubt that the appellant was the driver of the vehicle in which he was found, such that his convictions were [sic] violating 75 P.S. 3731 can be sustained? „
      II. Did the lower court err in admitting statements made by the appellant as being voluntary where the appellant was visibly intoxicated and suffering from injuries sustained in an automobile accident?
      Brief for Appellant at 2.

      . There is no merit to the second question raised in this appeal to the effect that the lower court erred in admitting certain statements made by the appellant in view of his intoxicated condition. As we pointed out in Commonwealth v. Slout, supra, “the fact that he was under the influence of alcohol when he initially made this admission does not affect the admissibility of these statements but rather goes to the weight which the jury may have given this testimony.” Id. 288 Pa.Super. at 477, 432 A.2d at 612.