author: BECK, Judge:

text:
    618 A.2d 1011
    COMMONWEALTH of Pennsylvania v. Juan ARRIAGA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1992.
    Filed Jan. 7, 1993.

      Willis W. Berry, Jr., Philadelphia for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, BECK and BROSKY, JJ.
   BECK, Judge:

Appellant raises a constitutional challenge to a sentencing provision for violation of the Controlled Substance, Drug, Device and Cosmetic Act which provides for heightened penalties for repeat offenders. See 18 Pa.C.S.A. § 7508(a)(3)(i). We find the provision constitutional and therefore affirm the judgment of sentence.

This is an appeal from a judgment of sentence imposed for delivery of a controlled substance (cocaine) and criminal conspiracy. The facts underlying appellant’s arrest and trial are irrelevant to this appeal as appellant’s sole issue is the constitutionality of the statute under which he was sentenced. Appellant objected to application of the statute at his sentencing hearing, as well as in his Motion to Reconsider Sentence; he claims that the statute violates the Double Jeopardy and Due Process Clauses of the United States Constitution. We find Appellant’s argument contrary to firmly established law.

Appellant was convicted for violating section (30) of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(30). He was sentenced pursuant to 18 Pa.C.S.A. § 7508(a)(3)(i), which provides for enhanced penalties for offenders who have previous convictions under Section ■ (30). The statute provides, in pertinent part:

[a] person who is convicted of violating Section 13(a)(14) or (30) of the Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation ... of coca leaves ... shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(i) upon the first conviction when the amount of the substance involved is at least 2.0 grams and less than ten grams; one year in prison ... and, upon conviction for another offense subject to sentencing from this section: three years in prison....

18 Pa.C.S.A. § 7508(a)(3)(i)

At sentencing, there was a stipulation between counsel that the amount of cocaine at issue was 2.76 grams and that appellant had two prior convictions for violating section (30). The trial court, in accordance with § 7508; sentenced appellant to three to six years on the delivery charge. Appellant maintains that consideration of his previous convictions in determining his sentence constitutes double jeopardy because it subjects him to punishment for crimes for which he was already sentenced.

Appellant bears a heavy burden in challenging the constitutionality of a statute; we are not permitted to refuse to enforce § 7508 unless it “clearly, palpably and plainly violates the Constitution.” Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339, 1340 (1983). '

The Double Jeopardy Clause protects against multiple punishments for the same offense and against a second prosecution for the same offense after acquittal or conviction. Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340, 346 (1988) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). In order for appellant to prevail on his claim, imposition of the sentence he received must constitute a second prosecution for either of his two prior offenses or an additional punishment for those convictions. The law is quite clear, however, that appellant’s sentence is not a reprosecution and punishes only his third offense.

The United States Supreme Court long ago considered enhanced sentence statutes and held that such statutes do not violate the Double Jeopardy Clause. In Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), the Supreme Court addressed the constitutionality of Pennsylvania’s Habitual Criminal Act, which provided that a defendant’s prior record be considered in determining the severity of his or her sentence. In Grijger, the defendant was given a life sentence because he had four prior convictions for violent crimes. He claimed that the Act was violative of Double Jeopardy as an additional penalty for an earlier crime. Id. at 732, 68 S.Ct. at 1258. The Court disagreed and explained that the sentence was “not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Id.

Consideration of an individual’s prior convictions to determine and, where appropriate, increase, his or her sentence not only survives a Double Jeopardy challenge, it is both logical and fair. The logic lies in the attempt to deter repeated criminal activity, while the fairness is obvious in the notion that a recidivist should receive a stiffer sentence than a first-time offender. See Commonwealth v. Grady, 337 Pa.Super 174, 486 A.2d 962, 965 (1984) (purposes of recidivist statutes reviewed).

Appellant also alleges a Due Process defect in § 7508; however, in his brief, he argues only a “double punishment” rationale. Although his failure to include argument on this issue generally would constitute a waiver of the issue, Commowealth v. Gonzalez, 415 Pa.Super. 65, 608 A.2d 528, 531 (1992), we note that this issue too has been addressed by the United States Supreme Court. The Court long has held that consideration of a defendant’s prior convictions in enhancing a sentence is not violative of Due Process nor a variety of other constitutional challenges. See Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (recidivist statute does not violate Due Process nor constitute cruel and unusual punishment); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (sentence enhancement for prior crimes does not violate Due Process, Equal Protection, Privileges and Immunities or Double Jeopardy clauses); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) (sentence enhancement provision is not an ex post facto law); Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895) (consideration of prior record does not violate Equal Protection, Cruel and Unusual Punishment or Double Jeopardy clauses). This court has relied on these Supreme Court cases to uphold other Pennsylvania statutes which provide for increased and/or mandatory sentences for repeat offenders. See e.g., Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962, 964 (1984) (Vehicle Code provision mandating imprisonment for second DUI offense constitutional).

While the particular statutory provision we address today previously has not been challenged as unconstitutional, many other, similar recidivist statutes have been reviewed and upheld on the very bases appellant asserts in his brief. We find, therefore, that 18 Pa.C.S.A. § 7508 is proper under the United States Constitution in that its operation does not constitute Double Jeopardy and does not violate Due Process.

Judgment of sentence affirmed.

      . The language of the statute was amended by the legislature in 1990. Instead of requiring a “previous conviction for another offense subject to sentencing from this section,” it now requires only that at the time of sentence, the defendant have a prior conviction for a drug trafficking offense. 18 Pa.C.S.A. § 7508 (Supp.1992). The amended statute has no application to the instant appeal.

        . Appellant based his claim on the protections afforded by the United States Constitution, not Pennsylvania’s. We note, however, that our Double Jeopardy Clause is coextensive with that of the federal clause and "involves the same meaning, purpose and end.” Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340, 346 n. 2 (1988).

      . In his brief, appellant argues that the timing of his earlier crimes, occurring four years before the sentencing in this case, contributes to the unfairness of his sentence. The Gryger court disposed of this argument and held the habitual offender statute constitutional even though one of the crimes the sentencing court considered occurred prior to the passage of the statute. Gryger, 334 U.S. at 732, 68 S.Ct. at 1258. See also Commonwealth v. Kopycinski, 353 Pa.Super. 387, 510 A.2d 365, 366 (1986), aff'd, 516 Pa. 15, 531 A.2d 1107 (1987) (court can consider convictions which occur before enactment of enhanced sentencing law).

      . In Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300, 302 n. 6, appeal denied, 528 Pa. 622, 597 A.2d 1151 (1991), this court noted that granting the prosecution sole authority to invoke the mandatory sentencing provisions of § 7508 did not violate constitutional principles of separation of powers.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    618 A.2d 1014
    Robert E. DOOLEY d/b/a Redo Industries, Appellant, v. Mark H. RUBIN, Individually and for First Edition, Appellee (Two Cases).
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1992.
    Filed Jan. 7, 1993.

      Michael H. Van Buskirk, Philadelphia, for appellant.
    Alvin Freiberg, Philadelphia, for appellee.
    Before CAVANAUGH, MCEWEN and KELLY, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether the trial court properly imposed Pennsylvania’s six percent judgment interest rate on two judgments after their transferral for collection from Florida, whose judgment interest rate is twelve percent. Additionally, we are also called upon to determine whether the trial court properly rejected the appellant’s request to recover the counsel fees he expended in defending against the appellee’s motion to strike judgment because Florida’s judgment interest rate was in excess of Pennsylvania’s judgment interest rate. We reverse in part and affirm in part.

The relevant facts and procedural history are as follows. The appellant, Robert E. Dooley, filed two breach of contract actions against the appellee, Mark H. Rubin, individually and for First Edition, for unpaid rents pursuant to a commercial lease agreement. The appellant obtained judgments against the appellee in both cases. The appellant subsequently transferred both Florida judgments to Pennsylvania for collection under the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306, on December 30, 1987.

After the judgments were transferred, the appellee offered to pay the face amounts of both judgments plus the six percent Pennsylvania judgment interest rate, in return for a general release of all claims and satisfaction of all judgments. The appellant rejected the appellee’s offer, insisting that he was entitled to receive the twelve percent Florida judgment interest rate on the transferred judgments.

The appellee then filed a “petition for relief from improper charges and to stay enforcement of and execution of the foreign judgments and to open and/or strike the judgments to the extent the judgments do not comply with Pennsylvania law and/or Rules of Court and/or exceed the monetary sums legally valid and collectible in Pennsylvania,” (the petition). The appellant answered the petition, alleging that the Florida judgment interest rate was applicable on the transferred judgments and raised a new matter requesting counsel fees pursuant to 42 Pa.C.S.A. § 2503 to recover his cost for defending his transferred judgments.

Upon consideration of the appellee’s petition and the appellant’s answer and new matter, the trial court entered an order directing that the twelve percent Florida judgment interest rate was applicable only from the dates the judgments were entered in Florida until their transferral to Pennsylvania, after which the judgment interest rate must switch to the six percent rate permitted under Pennsylvania law. The order further directed that the appellant was entitled to recover the reasonable attorney’s fees provided for under the commercial lease agreement that were contained in the transferred judgments. However, the trial court denied the appellant’s request for counsel fees, pursuant to 42 Pa.C.S.A. § 2503, for defending the transferred judgments against the appellee’s petition. This timely appeal followed.

On appeal, the appellant raises the following issues for our review:

1. DOES THE LEGAL RATE OF INTEREST OF THE ORIGINATING STATE, IN THIS CASE FLORIDA’S 12% RATE, GOVERN THE AMOUNT DUE UNDER JUDGMENTS OF PENNSYLVANIA TO WHICH THE FLORIDA JUDGMENTS WERE TRANSFERRED UNDER PENNSYLVANIA’S UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT, SUPRA? OTHERWISE STATED, DOES FLORIDA’S 12% RATE APPLY, OR, AS THE COURT BELOW DETERMINED, DOES PENNSYLVANIA’S 6% RATE APPLY FROM THE TIME OF THE TRANSFER OF THE JUDGMENTS?
2. IF THE ANSWER TO THE PREVIOUS QUESTION IS THAT PENNSYLVANIA’S 6% RATE APPLIES FROM THE TIME OF THE TRANSFER OF THE JUDGMENT TO PENNSYLVANIA, DOES THIS MEAN THAT APPELLANT LOSES THE HIGHER INTEREST WHICH CONTINUES TO ACCUMULATE UNDER FLORIDA LAW? IF NOT, WHAT HAPPENS?
3. DID THE MOTION COURT ERR IN DISALLOWING ATTORNEYS FEES FOR THIS CURRENT MOTION WHERE THE LEASE—WHICH IS THE FOUNDATION OF THE CLAIM—PROVIDES FOR ATTORNEYS FEES FOR COLLECTION EFFORTS, AND WHERE IF APPELLANT DOES NOT ANSWER DEFENDANT’S MOTION, APPELLANT WOULD LOSE THE ATTORNEYS FEES ULTIMATELY CONFIRMED BY THE MOTION COURT’S ORDER, AND WOULD LOSE THE HIGHER RATE OF INTEREST, AND WOULD HAVE HIS CASE DISMISSED?

Appellant’s Brief at 3.

In his first issue on appeal, the appellant contends that the trial court erred in holding that as a matter of law, the Pennsylvania’s six percent judgment interest must be applied to all judgments transferred here from sister states. The appellant argues that under the principle of Full Faith and Credit, he is entitled to the enforcement of his transferred judgment at the rate of interest applicable in the state where the judgments were originally rendered. Therefore, the appellant asserts that the trial court should have applied Florida’s twelve percent judgment interest rate to the transferred judgment.

It is well settled that under the Full Faith and Credit Clause of the United States Constitution, a judgment rendered by a sister state in which the sister state had jurisdiction over both the subject matter and parties, is entitled to the same faith and credit, validity and effect in Pennsylvania as the judgment has in the rendering sister state. United Carolina Bank v. Martocci, 416 Pa.Super. 16, 610 A.2d 484 (1992). The validity and effect of a judgment for the payment of money is determined by the law of the state where the judgment was rendered and, if valid and enforceable there, is equally so in all other states. Everson v. Everson, 494 Pa. 348, 431 A.2d 889 (1981).

The issue of whether the judgment interest rate of the rendering state or the judgment interest rate of the enforcing state is applicable to a transferred judgment has not been recently addressed by our Courts. “The Uniform Enforcement of Foreign Judgment Acts,” 42 Pa.C.S.A. § 4306, is also silent as to this issue. However, prior to our adoption of the 42 Pa.C.S.A. § 4306, this Court faced the same issue now before us in Ratterree v. Schonhardt, 105 Pa.Super. 321, 161 A. 461 (1932). In Ratterree, this Court applied Pennsylvania’s long standing rule that interest is payable “according to the law of the place where the contract is made unless payment is to be made elsewhere,” Ratterree v. Schonhardt, supra at 325-26, 161 A. at 462, citing Clark v. Searight, 135 Pa. 173, 19 A. 941 (1890); Campbell v. Hunt, 60 Pa.Super. 332 (1915); Parce v. Ely, 51 Pa.Super. 196 (1912), to foreign judgments transferred to Pennsylvania for enforcement. Using this rule, the Court held that Arkansas’ ten percent judgment interest rate, and not Pennsylvania’s six percent judgment interest rate, was applicable to a judgment that was transferred to Pennsylvania from Arkansas for enforcement. Id. See also 11 Pa.Std.Prac. § 69.11. Cf. Buswell v. Buswell, 377 Pa. 487, 105 A.2d 608 (1954) (Illinois judgment interest rate of five percent, rather than Pennsylvania’s six percent judgment interest rate, applied to arrearages pursuant to an Illinois divorce decree enforced here). Accordingly, we find that the trial court erred in ruling that upon transfer of the Florida judgments to Pennsylvania, the judgment interest rate automatically switched from Florida’s twelve percent rate to Pennsylvania’s six percent rate. Thus, in order for the transferred judgments to be fully satisfied, the appellee is required to pay the face amount of each judgment, plus Florida’s twelve percent judgment interest rate from the date of each transferred judgment’s entry in Florida.

The final issue raised by the appellant is whether the trial court improperly failed to grant his request for counsel fees pursuant to 42 Pa.C.S.A. § 2503(9) which he raised in his answer and new matter to the appellee’s petition. The appellant contends that the trial court’s order only rejected his claim for counsel fees on the grounds of vexatiousness or bad faith. The appellant argues that the trial court’s order did intend to allow him to recover the counsel fees he expended defending his transferred judgment against the appellee’s petition pursuant to the collection clause contained in the original commercial lease agreement. We disagree.

The trial court may, upon motion, require a party to pay another participant’s counsel fees if the party’s conduct in commencing the action was arbitrary, vexatious or in bad faith. Santillo v. Robinson, 383 Pa.Super. 604, 557 A.2d 416 (1989); Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983); 42 Pa.C.S.A. § 2503. However, the intent of the rule permitting the recovery of counsel fees is not to punish all of those who initiate actions which ultimately fail, as such a course of action would have a chilling effect upon the right to raise a claim. Santillo v. Robinson, supra. Rather, the aim of the rule is to sanction those who knowingly raise, in bad faith, frivolous claims which have no reasonable possibility of success, for the purpose of harassing, obstructing or delaying the opposing party. See Brenckle v. Arblaster, supra. Upon review, the denial of a request for counsel fees is a matter within the sound discretion of the trial court and will be reversed on appeal only when there is a clear abuse of that discretion. Szillery v. Wheaton, 382 Pa.Super. 394, 555 A.2d 237 (1989); American Mut. Liability Ins. v. Zion and Klein, 339 Pa.Super. 475, 489 A.2d 259 (1985).

Instantly, the trial court’s order clearly denied the appellant’s request for counsel fees expended in defending his transferred judgments against the appellee’s petition pursuant to 42 Pa.C.S.A. § 2503, while permitting the appellant to retain the counsel fees which were included in the transferred judgments. Our review of the appellant’s answer and new matter to the appellee’s petition reveals that the appellant only requested counsel fees pursuant to 42 Pa.C.S.A. § 2503 and did not additionally allege that he was also entitled to counsel fees under the collection clause of the original commercial lease agreement.

Moreover, the record indicates that the denial of counsel fees under 42 Pa.C.S.A. § 2503 was proper because the appellee did not bring his petition in bad faith for the purposes of obstructing or delaying the enforcement of the appellant’s transferred judgments. In fact, the appellee had offered in good faith to pay the face amounts of both judgments, plus Pennsylvania’s six percent judgment interest rate in exchange for a general release of all claims and satisfaction of all judgments. Only after this settlement offer was rejected by the appellant did the appellee bring his petition alleging that enforcement of Florida’s twelve percent judgment interest rate on the transferred judgments would be contrary to Pennsylvania law. Additionally, the appellee raised a highly credible claim concerning the applicable interest rate on a transferred judgment. This issue had not been addressed by our courts in many years and neither party relied in their briefs upon Pennsylvania case law in support of their respective positions. Thus, we are unable to say that the trial court in any way abused its discretion in denying the appellant’s request for counsel fees pursuant to 42 Pa.C.S.A. § 2503.

Based upon the foregoing, the portion of the trial court’s order directing that Pennsylvania’s six percent judgment interest rate be applicable from the dates of the transferred judgments entry in Pennsylvania is reversed. However, the portion of the trial court’s order denying the appellant’s request for counsel fees expended in defending his transferred judgments from the appellee’s petition is affirmed. .The case is remanded for calculation of judgment interest at Florida’s twelve percent judgment interest rate. Jurisdiction is relinquished.

Order reversed in part; affirmed in part. Jurisdiction relinquished.

      . On August 25, 1986, the County Court of Broward County, Florida entered a default and final judgment against the appellee in case No. 86-07095 for $4,251.09.
      Additionally, on April 6, 1987, the Circuit Court of Broward County, Florida, in case No. 86-026215, entered a final judgment against the appellee in the amount of $11,434.50. The Circuit Court also, in case No. 86-26215, awarded the appellant, an order taxing costs in the amount of $1,180.00.

      . 41 P.S. § 202
      Legal rate of interest
      Reference in any law or document enacted or executed heretofore or hereafter to “legal rate of interest” and reference in any document to an obligation to pay a sum of money "with interest” without specification of the applicable rate shall be construed to refer to the rate of interest of six per cent per annum.
      1974, Jan. 30, P.L. 13, No. 6, § 202, imd. effective.

      . Fla.Stat.Ann. § 55.03 (West 1991)
      55.03 Judgments; rate of interest, generally
      (1) A judgment or decree entered on or after October 1, 1981, shall bear interest at the rate of 12 percent a year unless the judgment or decree is rendered on a written contract or obligation providing for interest at a lesser rate, in which case the judgment or decree bears interest at the rate specified in such written contract or obligation.

      . Due to our disposition of the appellant's first issue on appeal, we need not address the second issue raised in this appeal.

      . 42 Pa.C.S.A. § 2503(9).
      The following participants shall be entitled to a reasonable counsel as part of the taxable costs of the matter:
      Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.

      . We note that generally an appeal does not lie from an order refusing counsel fees. Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981); Rutherford v. Rutherford, 152 Pa.Super. 517, 32 A.2d 921 (1943). However, because the denial of counsel fees is incorporated in an order terminating the underlying litigation the issue is appealable. See Santilo v. Robinson, 383 Pa.Super. 604, 557 A.2d 416 (1989); Szillery v. Wheaton, 382 Pa.Super. 394, 555 A.2d 237 (1989).


author: HOFFMAN, Judge:

text:
    618 A.2d 1019
    COMMONWEALTH of Pennsylvania v. Ronald BULL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 24, 1992.
    Filed Jan. 7, 1993.

      John G. McDougall, Media, for appellant.
    Dennis C. McAndrews, Asst. Dist. Atty., Media, for Com. appellee.
    Before KELLY, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence for possession of controlled substances with intent to deliver and conspiracy to possess controlled substances with intent to deliver. Appellant, Ronald Bull, presents the following claims:

I. The opinion testimony of the drug enforcement officer was insufficient to make out a case of possession with intent to deliver, when there was no other indicia of delivery capability.
II. The police violated Rule 2007 in waiting but one, or two seconds after knocking and announcing their identity, authority and purpose before breaking down appellant’s door. The belief that appellant might throw the contraband out of the window is not an exigent circumstance such as to relieve the police of the Rule’s requirements.
III. The issuance of a night time search warrant must be supported by more than the general assertion that an alleged dealer will sell his wares until they run out—without regard to time.

Appellant’s Brief at 7. For the reasons set forth below, we reverse the order of the trial court, vacate judgment of sentence and remand for a new trial.

On October 20, 1989. at 12:20 a.m., Detective James Frey of the Delaware County Drug Task Force obtained a search warrant authorizing a search of appellant’s apartment. The search warrant was executed approximately one hour after its issuance. During the search, the police seized 29.01 grams of phencyclidine, .45 grams of triazolan, numerous bottles of parsley flakes and mint leaves, a lemon extract bottle, $341.00 cash, a tally sheet, other items of drug paraphernalia, and mail addressed to appellant at the address searched.

As a result of the search, on October 20,1989, appellant was charged with possession of controlled substances,I. * possession with intent to deliver controlled substances, use of or possession with intent to use drug paraphernalia and criminal conspiracy. On March 16, 1990, appellant filed a pre-trial omnibus motion. Subsequently, a suppression hearing was held on April 2, 1990, following which appellant’s pre-trial motions were denied. On June 7,1990, appellant was convicted on all charges. Post-trial motions were filed and denied. On February 24, 1992, appellant was sentenced to five-to-ten-years imprisonment for possession with intent to deliver to be served concurrently with a five-to-ten-year term of imprisonment for conspiracy. Appellant’s timely appeal followed.

I.

Appellant first contends that the evidence produced at trial was insufficient to establish beyond a reasonable doubt that appellant had the intent to deliver controlled substances. This claim is without merit.

The standard applied in reviewing a sufficiency claim is well-settled:

We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of the evidence.

Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990), affirmed, 531 Pa. 42, 611 A.2d 175 (1992).

In the instant action, Detective Frey, a qualified expert in the field of drug distribution and investigation, rendered an opinion that appellant possessed controlled substances with an intent to distribute rather than for personal use. Such testimony, coupled with the presence of the various items discovered on the premises, is sufficient to support a finding of intent to deliver controlled substances. See Commonwealth v. Bruner, 388 Pa.Super. 82, 101, 564 A.2d 1277, 1286 (1989) (citation omitted) (the presence of drug paraphernalia combined with expert testimony from two detectives that the controlled substances were possessed with the intent to deliver was sufficient to establish the element of intent to deliver).

II.

Appellant next contends that the suppression court erred in failing to find that the police search violated Pa.R.Crim.P. 2007, commonly referred to as the “knock and announce” rule. We agree.

We first point out our standard of review of a suppression court’s determination:

[W]e must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985) (citations omitted), cert. denied, Cortez v. Pennsylvania, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

It has long been held that the Fourth Amendment to the United States Constitution requires the police to knock and identify themselves, announce their purpose and wait a reasonable period of time before forcible entry. Commonwealth v. Grubb, 407 Pa.Super 78, 83, 595 A.2d 133, 135 (1991). However, this requirement is not absolute. It is well-settled that there are exigencies which excuse compliance with the Fourth Amendment knock and announce requirement. Commonwealth v. Norris, 498 Pa. 308, 313, 446 A.2d 246, 248 (1982).

These principles are codified in Rule 2007 of Pennsylvania’s Rules of Criminal Procedure. Commonwealth v. Parsons, 391 Pa.Super 273, 278, 570 A.2d 1328, 1331 (1990); Commonwealth v. Golden, 277 Pa.Super. 180, 184, 419 A.2d 721, 723 (1980). Rule 2007 provides:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute a search.

Pa.R.Crim.P. 2007.

In the case at bar, the police failed to give appellant an opportunity to respond to their knock and announcement. Upon arriving at appellant’s residence, the police knocked on the door, and announced that they were police officers and that they had a search warrant for the premises. After approximately one or two seconds, the police forcibly entered appellant’s apartment. While the police did knock and announce their identity, authority and purpose before forcing entry, it is clear that they failed to wait a reasonable time for appellant to respond. See Commonwealth v. Means, 531 Pa. 504, 508, 614 A.2d 220, 223 (1992) (“A five to ten second delay is not a reasonable time for an occupant to respond to police officers’ knocking and announcing their purpose.”); Commonwealth v. McDonel, 411 Pa.Super 187, 196, 601 A.2d 302, 307 (1991) (A thirty second lapse between the first knock and the use of a battering ram and a five second lapse between announcement and entry was insufficient.). Hence, unless there were exigent circumstances, the search was in violation of Rule 2007.

Our Supreme Court has recognized four specific instances where exigent circumstances exist:

1) [where] the occupants remain silent after repeated knocking and announcing;
2) [where] the police are virtually certain that the occupants of the premises already know their purpose;
3) [where] the police have reason to believe that an announcement prior to entry would imperil their safety; and
4) [where] the police have reason to believe that evidence is about to be destroyed.

Commonwealth v. Means, 531 Pa. at 508, 614 A.2d at 222-23 (1992) (citations omitted). In the case at hand, the Commonwealth argues that the police had reason to believe that evidence was about to be destroyed and, therefore, exigent circumstances were present at the time of the search. We do not agree.

To establish that exigent circumstances existed in this instance, the Commonwealth must demonstrate that the police had reason to believe that appellant was destroying evidence at the time of the announcement. Grubb, 407 Pa.Super. at 83, 595 A.2d at 135. A mere presumption that the evidence would be destroyed is not enough. See id. at 84-85, 595 A.2d at 136 (citations omitted) (“[Tjhere must be more than the presumption that the evidence would be destroyed merely because it could be easily accomplished.... The fact that evidence may be destroyed ... does not justify the suspension of the fourth amendment.”).

The instant case is distinguishable from Commonwealth v. Pugh, 223 Pa.Super 112, 296 A.2d 864 (1972) and Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971), cases in which our courts have found the police justified in believing that evidence was being destroyed at the time of the knock and announcement. In Commonwealth v. Pugh, this court held that as the wife of appellant lied about being alone after the police rang the door bell and announced their identity and purpose, “the officers could reasonably conclude that she was stalling for time in order to destroy the narcotics.” Pugh, 223 Pa.Super. at 116, 296 A.2d at 866. In Commonwealth v. Dial, after the police announced that they had a warrant and requested that someone open the door, they heard the sound of running from inside the apartment. Dial, 445 Pa. at 254, 285 A.2d at 127. In affirming the judgment of sentence, the Supreme Court held that the sounds of running, after the door remained closed, substantiated the officers’ belief that an effort was underway to destroy the evidence. Id. at 255, 285 A.2d at 127.

In the case at bar, the police knocked on the door, announced that they were police officers and stated that they had a warrant. After a second or two, the police struck the door with a sledge hammer and gained entry into appellant’s apartment. Unlike the circumstances of Pugh and Dial, here the police had no communication with any individuals in the apartment and heard no sounds or movements from within. The police witnessed nothing during the actual execution of the search warrant to put them on notice of destruction of evidence.

Rather, the Commonwealth bases its assertion upon testimony regarding appellant’s actions during a prior search. Specifically, the police testified that in 1987 or 1988, a search warrant was executed upon the same residence as in the instant case. Approximately six months after the search, appellant’s wife told the police that before the police had entered the apartment, appellant threw a package of drugs out of the window. Appellant later retrieved the package. It is from this instance alone that the police substantiate their immediate entry into appellant’s apartment.

In Commonwealth v. McDonel, 411 Pa.Super 187, 601 A.2d 302 (1991), the Commonwealth provided a similar basis to justify the police’s failure to provide appellant with an opportunity to peacefully surrender the premises. Specifically, the Commonwealth argued that:

[T]he officers’ knowledge of appellant’s two-year-old weapons violation combined with their “assumptions” that drug dealers routinely “possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernalia” was sufficient to create the exigent circumstances necessary to permit forced entry without first affording appellant the opportunity to surrender the premises peaceably.

Id. at 194, 601 A.2d at 305.

This court found that the officers were not warranted in their belief that appellant was armed and dangerous at the time the search warrant was executed. We stated that:

[T]he present case was not one where ... the officers were poised to arrest an escaped convict who was recently seen with a handgun and who had previously been convicted of a murder which he committed with a firearm. In the case sub judice, all the officers knew was that appellant had pleaded. guilty to possession of an unlicensed weapon some two years earlier. Certainly, such information is stale at best.

Id. at 195, 601 A.2d at 306.

In the present action, the police merely had knowledge of a one-to-two year old search of appellant’s apartment where appellant allegedly abandoned evidence which he later retrieved. There was no contention that appellant actually destroyed any evidence during the prior search. Hence, the most the police could infer from the prior search is that appellant might attempt to conceal evidence during future searches.

Since the police failed to afford appellant a reasonable opportunity to respond and there were no exigent circumstances, we find that the police violated Rule 2007 in executing the search warrant. Hence, the search was unlawful and the evidence resulting from the search should have been suppressed. Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220 (Pa. Sept. 16, 1992). Accordingly, we reverse the order of the trial court, vacate judgment of sentence, and remand for a new trial.

Reversed; judgment vacated; and case remanded. Jurisdiction relinquished.

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 903.

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(32).

      . The charge of possession of controlled substances merged with the charge of possession with intent to deliver for sentencing purposes.

      . The charge of possession of drug paraphernalia merged with the charge of conspiracy for sentencing purposes.

      . In support of his opinion. Detective Frey testified to the following: the quantity of PCP seized by the police far exceeded the amount a user would keep for himself; the parsley and mint flakes, lemon and vanilla extract bottles, wax envelopes, plastic bags and tin foil found on the premises are frequently used to manufacture and package PCP for distribution; and the tally sheet retrieved from appellant’s rear pocket is a common method of recording drug sales.

      . Because we reverse the trial court and vacate judgment of sentence, we need not address appellant’s third claim.


author: JOHNSON, Judge:

text:
    618 A.2d 1024
    Leonard G. COY v. FORD MOTOR CREDIT COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Jan. 8, 1993.

      Gregory S. Olsavick, Altoona, for appellant.
    Peter J. O’Donnell, Lewistown, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

In this case, we are asked to determine whether proper notice can be given under the provisions of 69 P.S. § 623 D and under 13 Pa.C.S. § 9504(c), where the party claiming to have given notice provides no receipt of delivery. We conclude that a receipt of delivery is not required in order to effect notice under these statutes.

Here, Ford Motor Credit Company (Ford) appeals from an order denying summary judgment in favor of Ford, and granting summary judgment in favor of Leonard G. Coy. The trial court also awarded statutory damages, under 13 Pa.C.S. § 9507(a), in the amount of $5,205.60 to be paid by Ford to Coy. We reverse.

On April 27, 1987, Coy purchased a Ford truck from West-over Ford, Inc., of Mount Union, Pennsylvania, under a retail sales installment contract. Westover Ford subsequently assigned the retail sales installment contract to Ford Motor Credit Company. Coy defaulted on his duty to make timely payments under the installment contract. Ford then repossessed the truck on August 28, 1987.

On August 31, 1987, Ford sent a “Notice of Repossession and Right to Redeem” to Coy by certified mail. This notice conveyed the following information: Coy’s truck had been repossessed; the location of the truck; the amount of payment needed to redeem the truck; and the party to whom Coy should pay the amount due. The notice also informed Coy that after fifteen days, the truck would be sold at a private sale. Coy did not respond to the above notice nor did he try to reclaim the truck. On November 17, 1987, the truck was sold at the Ebensburg Auto Auction.

On July 31, 1990, Coy filed a Complaint against Ford seeking damages from Ford regarding the repossession and resale of the truck, alleging that he never received the notice of repossession. After discovery, both Ford and Coy filed motions for summary judgment. On January 2, 1992, the trial court denied Ford’s motion for summary judgment, granting summary judgment in favor of Coy. The trial court also imposed statutory damages, pursuant to 13 Pa.C.S. § 9507(a), against Ford. It is from this order that Ford now appeals.

When reviewing an order granting summary judgment, our standard of review is plenary. Briggs v. Erie Insurance Group, 406 Pa.Super. 560, 594 A.2d 761 (1991). In Tonkovic v. State Farm Mutual Automobile Insurance Company, 407 Pa.Super. 522, 523, 595 A.2d 1269, 1270 (1991), we stated:

Summary Judgment is to be granted only in the clearest of cases, where the right is free and clear from doubt. Under Pa.R.C.P. 1035(b) summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Furthermore, an appellate court will overturn entry of summary judgment by the trial court only if there has been an error of law. (citations omitted).

We will review Ford’s claims on appeal in light of this standard. Ford presents two issues for our review, contending that: (1) Ford provided proper notification to Coy under both 69 P.S. § 623 D and 13 Pa.C.S. § 9504(c), and that, (2) Ford sold the repossessed automobile at a private sale. We agree with both of these contentions.

First, Ford contends that the notice it provided satisfied the requirements of both the Motor Vehicle Sales Finance Act (MVSFA), 69 P.S. § 623 D, and 13 Pa.C.S. § 9504(c) (UCC). This court has held that the notice provisions of both the MVSFA and the UCC apply in cases of repossession and resale after default on a motor vehicle sales installment contract. Industrial Valley Bank & Trust Co. v. Nash, 349 Pa.Super. 27, 502 A.2d 1254 (1985).

When interpreting these statutes, the intent of' the legislature controls. Where the words of the statutes are clear and free from all ambiguity, we will not disregard the letter of the law under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921. The MVSFA, 69 P.S. § 623 D provides:

D. When repossession of a motor vehicle, which is the subject of an installment sale contract, is effected otherwise than by legal process, the holder shall immediately furnish the buyer with a written “notice of repossession” delivered in person, or sent by registered or certified mail directed to the last known address of the buyer. Such notice shall set forth the buyer’s right as to reinstatement of the contract, if the holder extends the privilege of reinstatement and redemption of the motor vehicle, shall contain an itemized statement of the total amount required to redeem the motor vehicle by reinstatement or payment of the contract in full, shall give notice to the buyer of the holder’s intent to re-sell the motor vehicle at the expiration of fifteen (15) days from the date of mailing such notice, shall disclose the place at which the motor vehicle is stored, and shall designate the name and address of the person to whom the buyer shall make payment, or upon whom he may serve notice.

The applicable section of the Uniform Commercial Code, codified in Pennsylvania as 13 Pa.C.S. § 9504(c) states in pertinent part:

(c) Manner of disposition.—Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods, no other notification need be sent.

The trial court found that the UCC imposes stricter requirements on a secured creditor than the MVSFA because the UCC requires that those carrying out its provisions do so in good faith. The trial court concluded that Ford did not satisfy the notice requirements under the UCC because no return receipt was provided by Ford as proof that Coy actually received the notice sent. Ford contends that the trial court erred, as a matter of law, in this conclusion. We agree.

Under 13 Pa.C.S. § 9504(c) a secured creditor is required to send reasonable notification to the debtor regarding the time and place of a public sale or the date after which a private sale will occur. “Send” is defined at 13 Pa.C.S. § 1201, which states, in pertinent part:

“Send.” In connection with any writing or notice, means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed and in the case of an instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances.

The term “notify” is also defined at 13 Pa.C.S. § 1201:

A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it.

In the present case, Ford sent the “Notice of Repossession and Right to Redeem” to Coy by certified mail at Coy’s last known address. This action fulfills the clear and unambiguous notice requirement under 13 Pa.C.S. § 9504(c). The sending of a certified letter to Coy informing him of the action taken against him and his right to regain possession of his vehicle, is a reasonable procedure to employ in order to inform another in the ordinary course, as is required under the UCC. The term “to notify,” under the UCC, does not include the notion that the person to whom notice is sent must receive it. On the contrary, the term “notify” under 13 Pa.C.S. § 1201 specifically contemplates the reasonable attempt to inform another regardless of whether that person actually comes to know of it.

The trial court and Coy rely upon our holding in Continental Bank v. Schaler, 362 Pa.Super. 610, 525 A.2d 388 (1987), for the proposition that in order for notice to be valid, there must be proof of receipt by the debtor. This reliance is misplaced. In Continental Bank, we reiterated the proposition put forth by our supreme court in Gerety v. Hiller, 349 Pa. 49, 36 A.2d 476 (1944), that notice, in order to be valid, need only be sent to the debtor’s last known place of business. Id., 362 Pa.Super. at 615, 525 A.2d at 390. In Continental Bank, however, the facts indicated that notice had, in fact, been received by someone in the debtor’s place of business. There, we held, not that receipt of notice is always necessary but, that such notice clearly fulfilled all requirements under the UCC. Id. at 616, 525 A.2d at 391.

In addition to fulfilling the general requirements under the UCC, Ford’s actions satisfy the more specific requirements of the MVSFA. Section 623 D of the MVSFA requires that a written notice of repossession be sent to the debtor either by personal delivery or by registered or certified mail directed to the debtor’s last known address. 69 P.S. § 623 D. Here, the notice was sent by certified mail to Coy’s last known address, with a sending receipt appearing in the certified record. The clear and unambiguous language of the statute does not indicate that a return receipt of mailing must be provided. Moreover, contrary to the assertions of the trial court, the delivery of a certified letter does not automatically include the return of a receipt of delivery. See United States Domestic Mail Manual, Issue 43, § 912.11, June 21, 1992. As the return of a receipt of delivery is not part of the statutory requirements for notice under the MVSFA or under the UCC, we are constrained to conclude that the trial court erred in its conclusion that the notice given by Ford was insufficient due to the lack of such a receipt.

The trial court also found that because there was no receipt showing delivery of the certified letter, Ford acted in bad faith. However, Coy makes no allegation of bad faith on the part of Ford and a review of the record reveals no indication that Ford acted in other than good faith. The determination of whether a party acts in good faith is usually a question for the finder of fact and an improper one for disposition through summary judgment. Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 585 A.2d 504 (1991), appeal denied, 529 Pa. 615, 600 A.2d 532 (1991). However, as we have concluded that under both the MVSFA and the UCC, a receipt of delivery is not required in order to effect notice of repossession, and as this is the sole basis for the trial court’s finding of the lack of Ford’s good faith, we conclude that the trial court erred in its finding as a matter of law. See American Express Co. v. Burgis, 328 Pa.Super. 167, 476 A.2d 944 (1986). We also conclude that since the issue of whether Ford acted in good faith is not one contested by the parties, it is not an issue of material fact which must be submitted to the fact-finder.

Second, Ford urges that the notice of repossession which it sent to Coy gave the required information about the resale of the truck, under the UCC, as the truck was sold at a private sale. We agree.

Under 13 Pa.C.S. § 9504(c), a secured creditor must give the debtor “reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made.... ” See also Industrial Valley Bank, supra. The notice given by Ford indicated that the repossessed truck would be sold at a private sale at some time fifteen days after the date of the notice or later. The question presented for our review is whether the Ebensburg Auto Auction qualifies as a private sale.

The terms “private sale” or “public sale” are not defined in the Uniform Commercial Code. The Restatement of Security § 48, comment c defines a public sale as, “one to which the public is invited by advertisement to appear and bid at auction for goods to be sold.”

In the present case, the record reveals that the Ebensburg Auto Auction is a sale open only to automobile dealers. It is uncontested that the sale of the repossessed truck was not advertised to the general public and that those other than automobile dealers were not permitted to attend the Ebensburg Auto Auction. While the courts in this jurisdiction have not addressed the issue of whether such an auction constitutes a private sale, the Seventh Circuit, in Ford Motor Credit Company v. Solway, 825 F.2d 1213 (7th Cir.1987), was faced with the identical issue now before us. There, the debtor was sent notice identical to the one sent by Ford in the present case, after his automobile was repossessed, due to a default on a retail sales installment contract. After receiving no response from the debtor, Ford sold the repossessed vehicle at an automobile auction open exclusively to automobile dealers. The Seventh Circuit held that an auction which was limited to automobile dealers was a private sale for the purposes of the UCC. Id. at 1218.

However, Coy maintains that since he could have sent an automobile dealer to buy his truck at the auto auction, the sale was public. In Fidelity Consumer Discount Co. v. Clark, 333 Pa.Super. 306, 482 A.2d 580 (1984), we had to determine whether a repossessed vehicle was sold at a public or private sale. There we stated, citing Gilmore, Security Interests in Personal Property 1242 (1965):

Presumably the essence of a ‘public sale’ is that the relevant public is not only invited to attend but is also informed, by whatever means of publicity may be appropriate, when and where the sale is to be held. If the sale has not been appropriately publicized, it would not be a public sale no matter where it was held or how it was conducted.

Id. at 310, 482 A.2d at 582-583. In that case, we held that sales of the vehicles, which were not advertised, were private sales despite the fact that the sales were open to anyone who wanted to look at the cars. Id. at 310, 482 A.2d at 583.

In this case, the cars were sold at an automobile auction, open only to automobile dealers. We are unable to conclude that such a sale can be termed a public sale as “the public” consists of more than automobile dealers. There is also no evidence in the certified record to establish that the sale of the repossessed truck was publicized, even among those dealers permitted to attend. We, therefore, hold that the sale of the truck in question was a private sale. The notice sent by Ford thus complies with the notice requirements for a private sale under 13 Pa.C.S. § 9504(c).

In light of the foregoing, we conclude that the trial court erred in granting summary judgment in favor of Coy. We, therefore, reverse and remand to the trial court for proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    618 A.2d 1029
    COMMONWEALTH of Pennsylvania v. Richard GOLDMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 24, 1992.
    Filed Jan. 8, 1993.

      Charles Kannebecker, Dingmans Ferry, for appellant.
    Alan B. Cooper, Asst. Dist. Atty., Hawley, for Com.
    Before KELLY, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence for receiving stolen property. Appellant asserts that the trial court erred in admitting into evidence an inculpatory declaration against interest. For the reasons that follow, we reverse judgment of sentence and remand the case for a new trial.

The relevant facts are as follows. On January 15, 1991, appellant purchased an IBM PS2 computer from two individuals who brought the computer to appellant’s house at 11:30 p.m. The computer had been stolen earlier that evening from the place of employment of one of the individuals. The next day, appellant paid for the computer with a check made out to cash.

Appellant was subsequently charged with and convicted of one count of receiving stolen property. Appellant filed post-trial motions which were denied, resulting in this timely appeal.

Appellant argues that the trial court improperly allowed the investigating police officer, Gary Williams, to testify that appellant’s wife had told him during a conversation that “I knew we shouldn’t have bought the computer because it was probably stolen.” Appellant’s wife, Pam Goldman, was in the courtroom during this testimony but had not been called as a witness. Appellant asserts that the statement should not have been admitted into evidence because (1) the hearsay exception for admissions requires that the declarant be unavailable, (2) a prior inconsistent statement of a witness cannot be introduced before the witness is called to testify, (3) the introduction of the statement was in violation of the confrontation clause of the United States Constitution, and (4) a declaration against penal interest is not admissible to inculpate the defendant. Because we find that the statement was inadmissible hearsay, we reverse.

The Commonwealth initially asserts that the statement was properly admitted as an admission against penal interest. An admission against penal interest is a recognized exception to the hearsay rule. Commonwealth v. Davis, 308 Pa.Super. 398, 402, 454 A.2d 595, 597 (1982). To satisfy that exception, the party seeking to have the testimony admitted must demonstrate that the statement was against the declarant’s penal interest at the time the statement was made and the declarant must be unavailable at the time of trial. Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). Movie Distributors Liquidating Trust v. Reliance Ins. Co., 407 Pa.Super. 588, 593, 595 A.2d 1302, 1305 (1991), appeal denied, 529 Pa. 658, 604 A.2d 249 (1992). Moreover, “ ‘[s]uch declarations must be made ‘under circumstances that provide considerable assurance of their reliability in order to be admissible....’” Commonwealth v. Davis, 308 Pa.Super. at 402, 454 A.2d at 597 (citations omitted).

Pennsylvania has no precise definition of “unavailable.” However, our courts have found unavailability where a witness is deceased, Rudisill v. Cordes, 333 Pa. 544, 5 A.2d 217 (1939), invokes the fifth amendment privilege not to testify, Commonwealth v. McCracken, 373 Pa.Super. 90, 540 A.2d 537 (1988), aff'd, 524 Pa. 332, 572 A.2d 2 (1990), or cannot be found, Movie Distributors Liquidating Trust, 407 Pa.Super. at 593, 595 A.2d at 1305. Here, the Commonwealth has failed to establish that Pam Goldman was unavailable.

To support its claim of unavailability, the Commonwealth points only to appellant’s statement in his brief that defense counsel called Ms. Goldman to testify only in response to the testimony of the police officer. The Commonwealth further argues that “it must be presumed that had she been called by the Commonwealth, she would have exercised her privilege not to testify against her husband pursuant to 42 Pa.C.S.A. § 5913.” Commonwealth Brief at 10. On this basis, the Commonwealth concludes that Ms. Goldman was unavailable to testify. We disagree. The Commonwealth offers absolutely no support for this assumption and we cannot speculate as to whether or not Ms. Goldman would have invoked the marital privilege. Accordingly, as Ms. Goldman was in the courtroom during trial, and was present when Officer Williams testified regarding her statement, we conclude that she was available to testify. Thus, the statement was not admissible as a statement against penal interest.

In the alternative, the Commonwealth argues that the statement is admissible as a prior inconsistent statement of a testifying witness pursuant to Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). In Brady, the Supreme Court held that “prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” Id. at 131, 507 A.2d at 70. However, the statement at issue does not meet the procedural requirements for admissibility set forth in Brady.

This court recently found Brady inapplicable to a case with facts similar to those of the instant matter. In Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991) (en banc), appeal denied, 528 Pa. 629, 598 A.2d 283 (1991), we held that a prior inconsistent statement was inadmissible hearsay in the prosecution’s case-in-chief where the witness did not testify, even though the witness subsequently testified in the defendant’s case. We stated that “the dictates of Brady were violated by the trial court’s allowance of [the witness’s] statement to be introduced for its substantive value prior to her taking the stand and recanting her testimony.” Id., 403 Pa.Super. at 11, 587 A.2d at 809 (emphasis added). Sopota also specifically rejected the Commonwealth’s argument that any error was cured when the defendant called the declarant as a witness.

Moreover, we note that the Supreme Court in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992) recently limited Brady, holding that a prior inconsistent statement may be used as substantive evidence “only when the statement is given under oath at a formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’s statements.” Id. at 465, 610 A.2d at 8. None of these prerequisites were satisfied by the unrecorded oral statement of Ms. Goldman in the instant case.

Having found Pam Goldman’s statement inadmissible, we must now determine whether, as the Commonwealth and trial court assert, any error was harmless. A trial error is considered harmless only if the appellate court is convinced beyond a reasonable doubt that the error was harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Appellant was found guilty of receiving stolen property which is defined as follows:

A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property has been received, retained, or disposed with intent to restore it to the owner.

18 Pa.C.S.A. § 3925 (emphasis added). We find that the improper introduction of a statement made by appellant’s wife that attributes to appellant possible knowledge or suspicion that he has been involved in criminal activity as defined above cannot be harmless error. Accordingly, we reverse judgment of sentence and remand the case for a new trial.

Judgment of sentence reversed. Remanded for new trial. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 3925.

      . Appellant presents eight issues for our review. However, in light of our disposition of the first claim, we need not consider the remaining issues.

      . Brady requires the declarant to be a witness at the time the prior inconsistency is present. Implicitly, Brady also requires that the indicia of reliability which make a prior statement of a non-party witness admissible for its substantive value must be present when that statement is presented. Therefore, it is of no consequence that that same witness is later placed on the stand as part of appellant’s defense. Thus, the Commonwealth’s error was not cured by appellant’s use of Ms. Kluk as a witness in his behalf.

        Sopota, 403 Pa.Super. at 11, 587 A.2d at 810.