author: TAMILIA, Judge: BECK, Judge,

text:
    589 A.2d 721
    Linda A. BURKHOLDER, Appellant, v. William HUTCHISON, Robert Scott, St. Thomas Township and the Board of Supervisors of St. Thomas Township.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1991.
    Filed April 10, 1991.

      Richard B. Swartz, Harrisburg, for appellant.
    Karl R. Hildabrand, Harrisburg, for appellees.

      Before OLSZEWSKI, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This appeal comes to us from the judgment entered following the Order of January 2, 1990, sustaining defendants’ preliminary objections in the nature of a demurrer. We are now called upon by appellant to consider extending the scope of the public policy exception to the at-will employment doctrine.

Appellant commenced this action by writ of summons issued December 30, 1988. On or about March 2, 1989, appellant filed a complaint averring that she was employed as secretary/treasurer for St. Thomas Township and in 1986 and 1987, defendants Hutchison and Scott were two of the three supervisors on the Board of Supervisors for that Township. Appellant alleged that on several occasions in 1986, defendants Hutchison and Scott advised her that her position with the township was in jeopardy if she did not prevent her husband from speaking out on township issues. On January 6, 1987, the township, through the board, allegedly discharged appellant because she was unable to prevent her husband from speaking out on public issues. Appellant alleges the discharge was a violation of her and her husband’s rights of free speech and participation. On or about March 10, 1989, defendants filed preliminary objections in the nature of a demurrer and a motion to strike. The preliminary objections were briefed and argued before the trial court on May 4, 1989, and by Order dated June 15, 1989, the preliminary objections were sustained and appellant was granted leave to file an amended complaint within twenty days thereof. On or about July 5, 1989, appellant filed an amended complaint, further alleging defendants’ warnings to her and eventual discharge had a chilling effect on her exercise of free speech and participation rights, as guaranteed by the United States and Pennsylvania Constitutions. On or about July 12, 1989, defendants again filed preliminary objections in the nature of a demurrer and a motion to strike, again asserting, inter alia, that appellant’s complaint was insufficient as a matter of law to support a cause of action for wrongful discharge. The trial court sustained defendants’ preliminary objections by Order dated January 2, 1990, and this appeal followed.

On an appeal from the sustaining of preliminary objections in the nature of a demurrer, “we accept as true all well-pleaded material facts set forth in the complaint as well as all inferences reasonably deducible therefrom.” DiMarco v. Lynch Homes, 525 Pa. 558, 561, 583 A.2d 422, 424 (1990), quoting Dercoli v. Pennsylvania National Mutual Insurance Co., 520 Pa. 471, 476, 554 A.2d 906, 908 (1989).

As an initial matter, we note both parties appear to concede appellant’s position as secretary/treasurer was that of an at-will employee. In that light, the law in Pennsylvania has long held that “[ajbsent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.” Geary v. United States Steel Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974). Geary continues to shine brightly as a polestar for the rule that where there exists “a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.” Id., 456 Pa. at 184-85, 319 A.2d at 180. As a general rule, this Court will not review terminations of at-will employment relationships. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 537 A.2d 814 (1987), app. den., 520 Pa. 590, 551 A.2d 216 (1988). However, when a review is undertaken, it must be done in light of the attendant circumstances of the case at bar. It first must be determined whether any public policy is threatened thereby; and even when an important public policy is involved, an employer may discharge an employee if he has separate, plausible and legitimate reasons for doing so. Cisco v. United Parcel Services, Inc., 328 Pa.Super. 300, 476 A.2d 1340 (1984).

Since its enunciation in Geary, the public policy exception to the rule precluding wrongful discharge claims in at-will employment situations had been developed further, but still remains an extremely narrow exception in the courts of Pennsylvania. Geary stated the underlying tenets of the public policy exception:

It may be granted that there are areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened. The notion that substantive due process elevates an employer’s privilege of hiring and discharging his employees to an absolute constitutional right has long since been discredited.

Geary, supra, 456 Pa. at 184, 319 A.2d at 180 (footnote omitted). To come within the exception, “the employee must show a violation of a clearly mandated public policy which ‘strikes at the heart of a citizen’s social right, duties and responsibilities.’ ” Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 55, 505 A.2d 259, 261 (1985), quoting Novosel v. Nationwide Insurance Company, 721 F.2d 894, 899 (3rd Cir.1983).

Exemplifying their reluctance to intrude unnecessarily in the realm of employer independence, to date, the courts of this Commonwealth have recognized only two instances in which a discharge contravenes a stated public policy so as to support a cause of action for wrongful discharge. Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (employee could not be discharged for performing jury duty); Hunter v. Port Author ity of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980) (employer could not deny employment on the basis of a former conviction for which the offender had been pardoned). Appellant now urges this Court to broaden the public policy exception, in effect transferring to the judicial forum the duty of evaluating the propriety of management decisions. Neither prior decisions by the courts of Pennsylvania in this area nor the facts of the instant case warrant providing this extension of the public policy exception.

To support this argument, appellant relies primarily upon Novosel, supra. In Novosel, the plaintiff employee alleged that he was discharged for his refusal to participate in the employer’s legislative lobbying efforts and for his opposition to the political stance of the company. The Third Circuit held that “the concern for the rights of political expression and association” is a significant and recognized public policy that will support a cause of action for wrongful discharge. Id. at 900. This Court is not bound by the decision of the Third Circuit in Novosel, which merely anticipated the direction of Pennsylvania jurisprudence, and in any event we find Novosel to be distinguishable from the facts of the case at bar.

Instantly, we do not find appellant’s allegations of curtailed free speech and association rights equal to those of the plaintiff in Novosel. At best, appellant has alleged that the defendants herein infringed upon the rights of a third party, appellant’s husband, to voice his political opinions. The public policy exception, however, is not applicable to third parties who have not been themselves the victim of an alleged wrongful discharge. Appellant’s conclusory allegations that defendants’ actions violated or had a “chilling effect” on her constitutionally protected rights of free speech and participation do not constitute well-pleaded material facts, nor inferences reasonably deducible therefrom, which we may accept as true. Therefore, as no constitutionally safeguarded right of appellant’s was violated by defendants’ actions, the extension by this Court of the public policy exception to the at-will employee doctrine, beyond the narrow limits already established, must await another day and a factual scenario more closely approximating that of Novosel.

Instead, we base our decision in this case on the fact that defendants herein, within statutory mandates, did not discharge appellant, but merely failed to reappoint her as secretary/treasurer of St. Thomas Township.

The Second Class Township Code, under which St. Thomas Township was governed, provides in pertinent part:

The supervisors of each township shall meet, at a convenient time and place, on the first Monday in January of each year____ At such time the township supervisors shall organize as a board____ The board shall appoint a treasurer and a secretary____ [T]he board may appoint one individual to serve as both secretary and treasurer____

53 P.S. § 65511.

Moreover, as appellees correctly note, the Pennsylvania Constitution states: “Appointed civil officers, other than judges of courts of records, may be removed at the pleasure of the power by which they shall have been appointed.” Art. 6, § 7. This traditional discretion to remove is incident to the power of appointment, and where the power to remove is discretionary, the courts will not inquire into the grounds for removal. Borough of Blawnox Council v. Olszewski, 505 Pa. 176, 477 A.2d 1322 (1984).

It appears clear to us that at the time of their required annual meeting in January, 1987, the board of supervisors of St. Thomas Township chose not to reappoint appellant to the position of secretary/treasurer for the township. This Court need not further scrutinize the board's reasons for exercising its discretionary power to remove, except to state that as a means of promoting the efficient governance of the township, the board was free to appoint as officers those with whom they felt comfortable. While effective management does not require like-mindedness from all workers on all issues, it would be unrealistic to expect that those charged with running government and implementing policy decisions should, or even do, appoint officers with differing agenda. Thus, we find the defendants’ actions plausible and legitimate, whether appellant is termed a discretionary appointee or an at-will employee, within the strictures of Geary and its progeny.

Judgment affirmed.

BECK, J., concurs.

BECK, Judge,

concurring:

Although I agree with the majority’s ultimate disposition of this case, I write separately to clarify the precise basis for the panel’s affirming the trial court’s demurrer in favor of the St. Thomas Township Board of Supervisors (the Board). Simply stated, this case involves the decision by the Board not to reappoint appellant Burkholder as the Board’s secretary/treasurer. The Board’s decision was in complete accordance with the Township Code, 53 P.S. § 65511. As such, this case need not, and should not, involve a consideration of public policy exceptions to the general rule of discharge of at-will employees.

The facts show that Burkholder was appointed in 1986 to be the secretary/treasurer for the Board. Her appointment was made pursuant to 53 P.S. § 65511, which provides in pertinent part:

[t]he supervisors of each township shall meet, at a convenient time and place, on the first Monday in January of each year____ At such time the township supervisors shall organize as a board by electing one of their number as chairman and another member as vice-chairman. The board shall appoint a treasurer and a secretary[, or] may appoint one individual to serve as both secretary and treasurer.

53 P.S. § 65511 (Purdon Supp.1990). Therefore, by statute, the Board is authorized each January to appoint whomever it selects as secretary/treasurer.

Burkholder alleges that on January 6, 1987, she was informed by the Board that she was being discharged. A review of the record, however, indicates that at its annual meeting the Board decided to appoint someone other than appellant to the position of secretary/treasurer for the 1987 calendar year. The record therefore shows Burkholder was not discharged, but was not reappointed. The Board’s action taken on January 6, 1987, not to reappoint Burkholder was within its legitimate statutory authority. Appellant has presented no allegations suggesting that the Board acted outside of its authority.

The majority agrees that the above rationale is the basis for its decision. As the majority states, “[ijnstead, we base our decision in this case on the fact that defendants herein, within statutory mandates, did not discharge appellant, but merely failed to reappoint her as secretary/treasurer of St. Thomas Township.” See Majority Opinion, at 504. As such, the precise holding in this case is that an employee-at-will can not maintain a cause of action for wrongful discharge where her employer acting pursuant to statutory authority fails to reappoint her. Therefore, the majority’s lengthy discussion addressing public policy exceptions to at-will employment is dicta.

It is unfortunate that the majority addressed such an important issue where the issue was not properly before it. Other appellate courts have recognized the difficulty of the issue and have instructed us that decisions must be considered on a case-by-case basis. Field v. Philadelphia Elec. Co., 388 Pa.Super. 400, 418-19, 565 A.2d 1170, 1179 (1989); Rinehimer v. Luzerne County Community College, 372 Pa.Super. 480, 490-91, 539 A.2d 1298, 1303 (1988), appeal denied, 521 Pa. 606, 555 A.2d 116 (1988); Yaindl v. Ingersoll-Rand Co. Standard Pump Aldrich Div., 281 Pa.Super. 560, 572, 422 A.2d 611, 617 (1980). Unlike the majority, in this case I would abstain from analyzing or discussing the substantive merits of free speech and free association as public policy exceptions. The majority’s discussion of the public policy issues at any rate is merely dicta.

      . This appeal is properly before the Superior Court rather than Commonwealth Court because although St. Thomas Township is named as a defendant in the underlying action, the complaint alleges wrongful discharge against public policy, a civil action applying common law principles, and not the traditional bases of Commonwealth Court jurisdiction in cases involving municipalities. See 42 Pa.C.S. §§ 762(a)(4) and (a)(7).

      . Following the appellant’s rationale, we begin our review denominating her termination as a discharge, which, as discussed below, is in reality a failure to reappoint.


source: Caselaw Access Project

author:
WIEAND, Judge:
      DEL SOLE, Judge,

license: Public Domain

text:
    589 A.2d 726
    COMMONWEALTH of Pennsylvania v. David DOTTER, II, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 21, 1990.
    Filed April 12, 1991.

      Michael R. Muth, Public Defender, Stroudsburg, for appellant.
    E. David Christine, Dist. Atty., Stroudsburg, for Com.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   WIEAND, Judge:

David W. Dotter, II, was tried by jury and was found guilty of rape, aggravated assault and involuntary deviate sexual intercourse. Post-trial motions were denied, and Dotter was sentenced to serve a term of imprisonment for not less than ten (10) years nor more than twenty (20) years for rape and to a consecutive term of imprisonment for not less than five (5) years nor more than ten (10) years for aggravated assault. The sentencing court did not impose a separate sentence for involuntary deviate sexual intercourse. A motion to modify sentence was denied. This appeal followed, in which appellant raises several alleged trial errors and complains of the severity of the sentence.

On March 10, 1989, at or about 9:20 p.m., Barbara Senchak had left her part-time job as a ski instructor at Blue Mountain Ski Area and was traveling south on Route 145 in the direction of Allentown. When the car in front of her stopped suddenly, Senchak executed a quick stop and avoided hitting the car. The car behind Senchak, however, failed to stop and hit the rear of Senchak’s automobile. Senchak drove her car to a nearby service station, where she spoke with David Dotter, the driver of the automobile which had struck her vehicle. Dotter admitted responsibility for the accident, and the parties exchanged identification and relevant information.

Dotter’s vehicle was not driveable following the accident and when his passenger was unable to find a ride for the men, Senchak offered to take them home. After Dotter’s passenger had been taken home, Senchak proceeded northwardly on Route 145, with Dotter giving directions. They proceeded past the turn for Northampton where Senchak had been told Dotter lived. At the traffic light in Daniels-ville, Dotter instructed Senchak to turn right. She did so and thereafter she was directed through numerous turns, onto dirt roads and ultimately into a wooded area. Senchak recalled a road sign indicating that they had entered Eldred Township, Monroe County. After driving only a little further, Dotter instructed her to stop in a dark wooded area. When she applied the brakes, Dotter grabbed the steering wheel with one hand and shifted the car into park with the other hand. Senchak then tried to get out of the ear, but Dotter grabbed her by the neck and ordered her into the passenger’s seat. When she complied, Dotter locked the car doors. Senchak again tried to exit the car from the passenger side, but Dotter grabbed her neck in a “headlock”, instructed her that if she did not cooperate “this is what’s going to happen to you”, and squeezed her neck tightly. He ripped off Senchak’s glasses and sweater, tore her bra and ski pants and ordered her to remove her clothing. Dotter then drove the car to another spot, where he ordered Senchak into the back seat and removed his own clothing. Then, with Ms arms around her body and his hands forcibly clenching her breasts, Dotter performed anal intercourse. When Senchak lost control of her bowels and bladder, Dotter became enraged and hit her in the left eye. He also tied her up, left her naked in the back seat and began driving again toward Allentown. He untied Senchak in a wooded area where he had stopped the car and allowed her to dress after she promised that she would return to him the written accident information and not contact the police. Dotter then returned to Route 145 and, after driving awhile, stopped at a Jiffy Lube to make a telephone call. It was then that Senchak was able to drive away.

She drove home immediately and, on the following morning, called Rape Crisis and was sent to the Allentown General Hospital for examination. She was there interviewed for the first time by the police, but she later went to the State Police criminal investigation unit, Bethlehem, Pennsylvania, where she gave an official statement to Trooper Powell. Powell suggested that she write her version of the incident before giving an oral statement. He said that this was a technique used by police in assisting victims of sensitive sexual crimes. After she had made an oral statement, which police recorded, the notes prepared by Senchak were returned to her and not retained by the police.

When this procedure became known at trial, defense counsel moved for a mistrial because a copy of the victim’s original notes had not been provided to the defense during informal, pre-trial discovery. An evidentiary hearing was held, but the motion for mistrial was denied when it became apparent that such notes were not in the possession of the Commonwealth when discovery requests were made. On appeal, Dotter contends that this was error. He argues that he was able neither to prepare adequately nor cross-examine Senchak fully because of the absence of this information.

“It is well established that where the Commonwealth has in its possession pretrial statements of its witnesses which have been reduced to writing and relate to the witness’ testimony at trial, it must, if requested, furnish copies of these statements to the defense.” Commonwealth v. Brinkley, 505 Pa. 442, 449, 480 A.2d 980, 984 (1984), citing Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977); Commonwealth v. Wright, 289 Pa.Super. 399, 404, 433 A.2d 511, 513 (1981). In the instant case, however, the victim’s initial notes were not in the possession of the Commonwealth at the time of the discovery request. They had been returned to Senchak after she made a formal statement. Whether they were still in existence at the time of the trial and, if so, their whereabouts at that time does not appear from the record. Under these circumstances, the trial court did not err in denying a defense motion for mistrial.

At trial, the Commonwealth introduced, over defense objection, a series of colored photographs taken of bruises on Senchak’s hands, legs, face and breasts on the day following the alleged rape. Appellant contends that it was error to allow the jury to examine photographs of Senchak’s naked and bruised breasts because of the inflammatory effect thereof. We reject this argument.

“The question of admissibility of photographs ... is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error.” Commonwealth v. Stein, 378 Pa.Super. 339, 345, 548 A.2d 1230, 1233 (1988), allocatur denied, 521 Pa. 620, 557 A.2d 723 (1989), quoting Commonwealth v. Buehl, 510 Pa. 363, 392, 508 A.2d 1167, 1181-1182 (1986). See also: Commonwealth v. Nauman, 345 Pa.Super. 457, 459-460, 498 A.2d 913, 914 (1985). The admissibility of photographs is based on a two-tiered analysis.

The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors. Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980).

Commonwealth v. Strong, 522 Pa. 445, 453, 563 A.2d 479, 483 (1989), cert. denied, — U.S. —, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990). See also: Commonwealth v. Miller, 490 Pa. 457, 468-469, 417 A.2d 128, 134 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981). To be inflammatory “the depiction must be of such a gruesome nature or be cast in such an unfair light that it would tend to cloud an objective assessment of the guilt or innocence of the defendant.” Commonwealth v. Hubbard, 472 Pa. 259, 281, 372 A.2d 687, 697 (1977).

The photographs in the instant case were neither gruesome nor inflammatory. The testimony was that they were fair and accurate depictions of Senchak’s physical condition on the morning after the incident for which appellant was on trial. As such, they were relevant evidence and tended to corroborate Senchak’s testimony that appellant had exercised forcible compulsion to achieve sexual satisfaction. See: Commonwealth v. Nauman, supra.

At trial, Senehak testified over objection that during her ordeal she had believed that appellant was looking for a place to kill her and wondered what her boys would do when she was not home in the morning. Appellant contends that this testimony was irrelevant and prejudicial.

Issues of relevancy must necessarily be left in the first instance to the discretion of the trial court, whose rulings thereon will not be disturbed unless there has been an abuse of that discretion. Commonwealth v. Gibbs, 387 Pa.Super. 181, 186-187, 563 A.2d 1244, 1247 (1989), allocatur denied, 524 Pa. 625, 574 A.2d 67 (1990); Commonwealth v. Jackson, 336 Pa.Super. 609, 619-620, 486 A.2d 431, 437 (1984). Although the issue in the instent case is close, we cannot say that the trial court abused its discretion. Senchak, according to the testimony, was tied up in the back seat of the car while naked as appellant drove her car. Her fears that she might be killed were a part of the ordeal to which she was subjected, and it was not error to permit the jury to know the full nature of appellant’s acts or his victim’s terror.

Appellant’s contention that the crime of aggravated assault merged in the crime of rape for sentencing purposes must fail.

[I]f a'person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.

Commonwealth v. Weakland, 521 Pa. 353, 364, 555 A.2d 1228, 1233 (1989).

A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

18 Pa.C.S. § 2702(a)(1). Rape, however, is defined as follows:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

18 Pa.C.S.A. § 3121(1), (2).

In the instant case, the evidence was that appellant had committed multiple crimes. The crime of rape had been committed when appellant, by threatening Senchak and grabbing her by the neck, ripping her clothing from her and clenching her breasts, had effected anal penetration. It was after this crime had been committed that appellant punched his victim in the left eye. This assault was not an essential part of the crime of rape but constituted a separate criminal act, for which a separate punishment could properly be imposed.

The final issue raised by appellant implicates the discretionary aspects of sentencing. In a separate statement complying with Pa.R.A.P. 2119(f), appellant alleges that the trial court abused its discretion in sentencing appellant outside the aggravated range recommended by the Sentencing Guidelines. Specifically, appellant contends that it was error for the court to rely solely on his prior criminal record when sentencing outside the guidelines. Because we deem this a substantial challenge to the appropriateness of the sentence, we will allow his appeal from the discretionary aspects of sentencing.

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of that discretion.” Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988), allocatur denied, 524 Pa. 616, 571 A.2d 379 (1989). However, the sentencing court must state its reasons for the sentence on the record, which in turn aids in determining “whether the sentence imposed was based upon accurate, sufficient and proper information.” Commonwealth v. Riggins, 474 Pa. 115, 131, 377 A.2d 140, 148 (1977). When the sentence imposed is outside the sentencing guidelines, the court must “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S.A. § 9721(b). This requirement is satisfied “when the judge states his reasons for the sentence on the record and in the defendant’s presence.” Commonwealth v. Smith, 369 Pa.Super. 1, 6, 534 A.2d 836, 838 (1987). When imposing sentence, a court is required to consider “the particular circumstances of the offense and the character of the defendant.” Commonwealth v. Frazier, 347 Pa.Super. 64, 67, 500 A.2d 158, 159 (1985). In considering these factors, the court should refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation. Commonwealth v. Phillips, 342 Pa.Super. 45, 51, 492 A.2d 55, 58 (1985). “It must be demonstrated that the court considered the statutory factors enunciated for determination of sentencing alternatives, and the sentencing guidelines.” Commonwealth v. Hainsey, 379 Pa.Super. 376, 382, 550 A.2d 207, 209 (1988). Additionally, the court must impose a sentence which is “consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.” Commonwealth v. Frazier, supra. Where the sentencing judge had the benefit of a pre-sentence report, however, it will be presumed that he “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988).

It is correct, as appellant contends, that a sentencing court may not justify a deviation from the sentencing guidelines solely because of a defendant’s prior record score. See: Commonwealth v. Bartlow, 354 Pa.Super. 444, 512 A.2d 34 (1986); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985). This is because the prior record score has already been incorporated into the guidelines. Commonwealth v. Darden, 366 Pa.Super. 597, 606-607, 531 A.2d 1144, 1148-1149 (1987).

In the instant case, however, appellant’s prior criminal record was not the sole basis for sentencing outside the guidelines. The transcript of the sentencing hearing makes it clear that the sentencing court considered all necessary statutory sentencing factors, the sentencing guidelines, appellant’s character and rehabilitative needs, as well as the seriousness of the offenses and their impact on the community. Moreover, the court had the benefit of and fully considered a pre-sentence report. In deciding to deviate from the sentencing guidelines, the court considered the nature of the criminal acts committed on the victim and the resulting physical harm to her. The court emphasized that the crime had been perpetrated without provocation upon a person who had been acting as a good Samaritan in providing transportation for appellant to his home. The reference to appellant’s prior criminal record was to emphasize the failure of prior rehabilitative efforts, since a prior sentence for the same crime of rape had ended only three and one-half (3V2) months before the instant offenses. Finally, the sentencing court viewed appellant as a threat which placed women of the community at risk. In deciding to deviate from the guidelines, therefore, the court emphasized that the female community needed protection from appellant.

The Supreme Court has made it abundantly clear that a sentencing court’s discretion is broad, and that a reviewing court should not disturb the exercise of that discretion except for substantial reasons. See, e.g.: Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242 (1990); Commonwealth v. Jones, 523 Pa. 138, 565 A.2d 732 (1989). Commonwealth v. Devers, supra. Our review discloses no reason to disturb the sentence in this case. The sentencing court considered all necessary factors and adequately explained its reasons for deviating from the guidelines.

The judgment of sentence is affirmed.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring.

I join the Majority in its analysis of all issues in this case save one. I believe that the admission of the victim’s testimony wherein she stated that she was thinking about her children, she was wondering what they were going to think in the morning if she was not home, how long it would be before her body was found, and thinking about her family and friends was incorrectly admitted during the trial of this case. However, I believe that any error occasioned by the admission of that testimony was harmless. Therefore, I agree that the judgment of sentence should be affirmed.

      . 18 Pa.C.S.A. § 3121(1) & (2).

      . 18 Pa.C.S.A. § 2702(a)(1).

      . 18 Pa.C.S.A. § 3123(1) & (2).


author: WIEAND, Judge:

text:
    589 A.2d 731
    Henry F. SCHUSTER and Joan K. Schuster and Henry F. Schuster, Administrator of the Estate of Keith C. Schuster, Appellants, v. Walter REEVES and Jane Reeves, his Wife, d/b/a Wagon Wheel Tavern, Appellees. Henry F. SCHUSTER and Joan K. Schuster and Henry F. Schuster, Administrator of the Estate of Keith C. Schuster, Appellants, v. Donna A. DICKINSON and David Dickinson, her Husband, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed April 15, 1991.

      Frank J. Bolock, Jr., Scranton, for appellants.
    Robert J. Kunec, Wilkes-Barre, for Dickinson, appellees.
    Before WIEAND, KELLY and CERCONE, JJ.
   WIEAND, Judge:

Keith Schuster, age 16, died as a result of injuries sustained when, on May 24, 1979, he was struck while walking along Route 29, Tunkhannock, Lackawanna County, by a vehicle operated by Donna A. Dickinson and owned by her husband, David K. Dickinson. While represented by counsel, the decedent’s parents, Henry and Joan Schuster, negotiated a settlement in the amount of thirty thousand ($30,-000) dollars. They subsequently executed a release absolving the Dickinsons of all further liability and were paid the amount accepted in settlement by the Dickinsons’ liability insurance carrier. No part of the settlement was approved by any court.

Subsequently, Henry Schuster took out letters of administration in his deceased son’s estate and commenced wrongful death and survival actions against Donna and David Dickinson to recover for his son’s death. An answer was filed which contained, as New Matter, averments of the earlier settlement and release. In a Reply, the plaintiff alleged, inter alia, that the prior settlement had not received court approval. Thereafter, a defense motion for summary judgment was filed and granted by the court because of the prior settlement and release. This appeal followed.

The law pertaining to the need for court approval of death actions was recently reviewed in Moore v. Gates, 398 Pa.Super. 211, 580 A.2d 1138 (1990) (en banc). The Court there said:

In Pantazis v. Fidelity & Deposit Co. of Maryland, 369 Pa. 221, 85 A.2d 421 (1952), the plaintiff, individually and as administratrix of her deceased husband’s estate, brought an action alleging wrongful death and survival claims for damages arising from the death of her husband in an automobile accident. At trial, the court dismissed the wrongful death action because the wife, for a valuable consideration, had executed a release in favor of the tortfeasor. The survival action was allowed to go to the jury and resulted in a verdict in favor of the decedent’s estate. Judgment was entered on the verdict, but when the administratrix sought to enforce the judgment the defendant argued that, since the wife was the sole heir, her release had the effect of releasing not only her individual claim for the wrongful death of her husband but also any interest which she had in the damages awarded to her husband’s estate in the survival action. Although the Court noted that the doctrine of res judicata rendered the defense spurious, the Court said the following about the substantive law.
All that plaintiff released was her claim as an individual in the death action. As administratrix of her husband’s estate, she lacked authority, as fiduciary, to release her deceased husband’s estate. To do so required leave of the orphans’ court, upon proper cause shown. Furthermore, she could not effectively stipulate, as fiduciary in her husband’s estate, that there were no debts or taxes due. Only an audit and adjudication could determine that. Nor can plaintiff’s release in the death action of her individual rights be regarded in the survival action as a release and assignment of her distributive share under the intestate laws in her deceased husband’s estate. What the plaintiff receives in distribution in settlement of her husband’s estate is what the law directs shall be paid to her as her distributive share, (emphasis in original).
Id., 369 Pa. at 226, 85 A.2d at 424.
The Pantazis decision was viewed as a judicious statement of policy necessary to protect the interests of the Commonwealth, possible creditors, and other parties interested in the decedent’s estate. It was procedurally troubling, however, because it required approval of the settlement of a pending action by the orphans’ court rather than by the common pleas court in which the action was pending. See, e.g.: Pa.Bar Assoc. Quarterly, October, 1952, at 16, cited in Trigg Estate, 86 D. & C. 76, 77 (1953); Fiduciary Review, September, 1953. Because of this perceived procedural shortcoming, the legislature enacted the Act of July 28, 1953, No. 198, §§ 1-3, 20 P.S. §§ 1151-1153, which provided that any Court in which an action was pending could approve the proposed compromise and settlement of a survival action. In adopting this provision in 1953, the legislature specifically rejected a recommendation that a personal representative be permitted to compromise or settle a survival action without prior court approval. See: Fiduciary Review, supra at 4, citing Legal Intelligencer, June 9, 1953.
The 1953 statute was substantially reenacted as Section 3323 of the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, 20 Pa.C.S. § 3323. This section provides in pertinent part as follows:
§ 3323. Compromise of controversies
(a) In general. — Whenever it shall be proposed to compromise or settle any claim, whether in suit or not, by or against an estate, or to compromise or settle any question or dispute concerning the validity or construction of any governing instrument, or the distribution of all or any part of any estate, or any other controversy affecting any estate, the court, on petition by the personal representative or by any party in interest setting forth all the facts and circumstances, and after such notice as the court shall direct, aided if necessary by the report of a master, may enter a decree authorizing the compromise or settlement to be made.
(b) Pending court action.—
(1) Court order. Whenever it is desired to compromise or settle an action in which damages are sought to be recovered on behalf of an estate, any court or division thereof in which such action is pending and which has jurisdiction thereof may, upon oral motion by plaintiffs counsel of record in such action, or upon petition by the personal representative of such decedent, make an order approving such compromise or settlement. Such order may approve an agreement for the payment of counsel fees and other proper expenses incident to such action.
The necessity for court approval of a survival action is not determined by the amount of the settlement Section 3323 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 3323, provides for court approval “[w]henever it shall be proposed to compromise or settle any claim ... by or against an estate.” The requirement for court approval of survival actions is intended to protect the estate, as well as the creditors and beneficiaries thereof. Thus, a court may refuse to approve a settlement of a survival action which is inadequate. Court approval was particularly necessary here, where it was proposed to apportion a total settlement so that the major part thereof would be paid to the heirs of the decedent in settlement of the wrongful death action and only a small portion of the settlement would be paid to the decedent’s estate in settlement of the survival action.
The law is clear. Where the only heirs entitled to recover for the wrongful death of a decedent are competent adults, they may settle their claims without court approval. This is not altered because the decedent was a juvenile at the time of his or her death. Before a survival claim can be settled on behalf of a decedent’s estate, however, such a settlement must be judicially approved. Where there is no action pending, the statute requires that the settlement be approved by the orphans’ court having jurisdiction of the decedent’s estate. Where a survival action is pending, however, a settlement thereof may be approved by the court in which it is pending; and it is then unnecessary to obtain approval from the orphans’ court which has jurisdiction of the decedent’s estate. This is the view which has been consistently followed by the trial courts in this Commonwealth. See, e.g.: Brooks v. Philadelphia, 63 Pa.D. & C.2d 249 (1973); Wexler v. Philadelphia Transportation Co., 3 Pa.D. & C.2d 122 (1955). See also: Olson Estate, 25 Pa.D. & C.2d 622 (1961); Annotation, Power and Responsibility of Executor or Administrator to Compromise Claim Due Estate, 72 A.L.R.2d 191, 215, 296.

Id., 398 Pa.Superior Ct. at 217-218, 580 A.2d at 1140-1141 (footnote omitted).

In Moore v. Gates, supra, there had been an oral agreement to accept a lump sum in settlement of both a wrongful death and survival action, but the settlement amount had not been apportioned between the two actions and the amount to be paid in settlement of the survival action had not been approved by a court of competent jurisdiction. The Superior Court held, therefore, that a final and binding settlement had not been concluded, and the oral agreement did not bar later wrongful death and survival actions.

In the instant case, there is a written release which has been executed by the claimants. That release is supported by adequate consideration and is also under seal. It releases the appellee-defendants “from any, all and every obligation and any and all actions, claims and demands which they had or might have had ... arising out of the accident of May 24, 1979____” Because the releasors were competent adults, the release is a bar to the assertion of additional claims by the individual releasors. The claims asserted in the wrongful death action were individual claims, and they could be settled validly and released without court approval.

The survival action, however, was a claim on behalf of the decedent’s estate, and it could not be settled without court approval. Without such approval, the attempt to settle and release the estate’s claim was ineffective. The same factual situation was before the Supreme Court in Pantazis v. Fidelity & Deposit Co. of Maryland, supra, and its decision is controlling in the instant case. It follows that while the release executed by the plaintiff-appellants in the instant case is a bar to the wrongful death action, the same release does not bar further proceedings in the survival action because settlement of the survival action was not approved by a court of competent jurisdiction.

Appellees complain that the consideration for the release was paid to the individual claimants and has not been repaid. This sum, however, was the consideration paid for the release of individual claims. It was paid to the individual claimants who could and did execute, in exchange, a release of their claims. However, they could not settle, without court approval, the survival action brought on behalf of the decedent’s estate. It is trite but true to say that appellees’ ignorance of the law does not excuse their missteps. When the defendant-appellees paid money to the claimants, they may have believed they were settling the survival action as well as the wrongful death action. In fact, however, the statutory law of this Commonwealth prevented their settling the survival action without court approval. When they paid to the individual claimants the sum of thirty thousand ($30,000) dollars, they took in exchange a release which was effective to bar any further, individual claim for damages. The release, however, had no additional effect. It was ineffective to bar a further claim on behalf of the estate of the decedent. With respect to the survival action, therefore, appellees are not entitled to a set off for moneys paid to obtain a release of individual claims.

The order entering summary judgment in the wrongful death action is affirmed. The order entering summary judgment in the survival action is reversed, and that action is remanded for further proceedings. Jurisdiction is not retained.

      . An action was also filed against Walter and Jane Reeves, t/a the Wagon Wheel Tavern, which allegedly had served alcoholic beverages to Donna Dickinson prior to the accident, but that action is not implicated in the present appeal.


text:
    589 A.2d 735
    In re COMMONWEALTH of Pennsylvania, $803 CASH, U.S. CURRENCY. Appeal of Charles WARREN, Lawful Proprietor.
    Superior Court of Pennsylvania.
    Submitted Jan. 28, 1991.
    Filed April 15, 1991.

      Charles Warren, pro se.
    William R. Cunningham, Dist. Atty., Erie, Mark Sindler, Deputy Atty. Gen., Harrisburg, for Com.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

This appeal from an order forfeiting eight hundred and three ($808.00) dollars, United States currency, pursuant to the Controlled Substances Forfeitures Act, 42 Pa.C.S. §§ 6801 and 6802, requires that we review the type of notice which must be given to an owner of property who is incarcerated.

The currency in this case was seized from Charles Warren as an incident of his arrest for a technical violation of parole. He was thereafter confined at the Huntingdon State Correctional Institution, where he remained when the Attorney General’s forfeiture petition was heard by the trial court. Although Warren was given notice of the hearing, he was not told that he was entitled to be transported from prison in order to attend the hearing. As a consequence, he made no request to prison authorities for arrangements to be made which would allow him to be present, and the hearing proceeded in his absence. At the hearing, the Attorney General attempted to show that Warren had been engaged in the sale of controlled substances. There was also testimony that an odor of a controlled substance had been detected on the money by a dog from a state police canine unit and that a subsequent chemical analysis had revealed the presence of a cocaine residue on the currency.

“The Due Process clause of the Fourteenth Amendment to the Federal Constitution requires at a minimum that the deprivation of life, liberty or property by adjudication must be preceded by notice and opportunity for hearing appropriate to the nature of the case.” In re Upset Sale, Tax Claims Bureau of Berks Co., 505 Pa. 327, 333, 479 A.2d 940, 943 (1984). See also: Parham v. Cortese, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); West Penn Power Co. v. Train, 522 F.2d 302, 312 (3d Cir.1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183 (1976). The Constitution of Pennsylvania contains a similar guarantee. Commonwealth v. One 1988 Ford Coupe, 393 Pa.Super. 320, 331, 574 A.2d 631, 637 (1990).

Where the owner of property subject to forfeiture proceedings is incarcerated, the notice must inform him or her that proper steps will be taken to aid such person in appearing and defending if that is his or her wish. The notice should also advise the owner as to the steps to be taken to obtain temporary release to attend the hearing. Such additional notice has been required to be given incarcerated defendants in divorce actions, see: 5A GoodrichAmram, Procedural Rule Service, § 1920.51:8, and an equivalent notice must be given in actions by the Commonwealth to forfeit the property of an interested party who is incarcerated. To require nothing more than a bare notice of the time and place of hearing is to settle for what in many cases may be a meaningless formality. Unless the incarcerated owner is made aware that arrangements can and will be made for him to be present at the hearing, a bare notice of the time and place of hearing will be of little value.

The Forfeiture Law contains, at 42 Pa.C.S. § 6802, relevant procedural protections. It directs that notice be given to all owners and possessors of property, and it provides for an opportunity to respond, both in writing and at a hearing on the petition. It also establishes the respective burdens of proof for the parties. 42 Pa.C.S. § 6802(a)-(k). See: Commonwealth v. One 1988 Ford Coupe, supra at 332, 574 A.2d at 637; Commonwealth v. Crosby, 390 Pa.Super. 140, 153, 568 A.2d 233, 240 (1990).

Here, the Commonwealth had the initial burden of showing, by a preponderance of the evidence, the existence of a nexus between the currency and an illegal drug transaction. See: Commonwealth v. One 1988 Ford Coupe, supra, 393 Pa.Super. at 332-333, 574 A.2d at 638, citing Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985). The Commonwealth’s evidence that a cocaine residue was found on some of the money taken from Warren was sufficient to allow the factfinder to infer that the money had been part of an illegal drug transaction and, therefore, subject to forfeiture. See: 42 Pa.C.S. § 6801(a)(6)(ii); Commonwealth v. Tate, 371 Pa.Super. 611, 617, 538 A.2d 903, 906 (1988). However, appellant had a right to contest the Commonwealth’s evidence and challenge the inference to be drawn therefrom. He could explain, if possible, the presence of the cocaine residue on the currency or demonstrate his own lawful acquisition and innocent possession thereof. Because he was not present, he was deprived of this right to respond to and explain the Commonwealth’s evidence.

Warren did not waive his right to attend the hearing by failing to request the court or prison authorities to make provision for his presence. He was incarcerated, and we will not assume that he was knowledgeable of his right to require release to attend the hearing. Indeed, it is the likelihood that an incarcerated prisoner will not be aware of his rights with respect to the attendance at judicial hearings which has prompted our decision to require that notice of such right be given. The record in this case is entirely inadequate to permit a finding that Warren knew his rights and voluntarily and intentionally surrendered them.

Warren is entitled to a real opportunity, not merely an illusory one, to attend the forfeiture hearing and defend against the Commonwealth’s attempt to forfeit property removed from his person. Because the notice of the hearing was inadequate to guarantee that right, we will reverse the trial court’s forfeiture order and remand for another hearing.

Reversed and remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained meanwhile.

      . The trial court originally attempted to hold a hearing by telephone, and Warren was given notice that he could participate by calling a designated number at the time of hearing. This hearing was not conducted, however, and a subsequent notice was given of a hearing to be held April 25, 1990. The record discloses that notice of this hearing was mailed to Warren by first class mail, but the brief which he has filed in this Court does not concede actual receipt thereof. For purposes of our decision, we have presumed that the notice, having been duly sent by U.S. Mail, was received by Warren. See: Pa.R.C.P. 440(b). See also: Cody v. Cody, 408 Pa. 301, 183 A.2d 534 (1962) (applying Pa.R.C.P. 1027 which was rescinded and replaced by Rule 440).


author: OLSZEWSKI, Judge:

text:
    589 A.2d 737
    COMMONWEALTH of Pennsylvania v. Kenneth William HOFFMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1991.
    Filed April 18, 1991.

      Vincent J. Quinn, Chief Public Defender, Lancaster, for appellant.
    James J. Karl, Asst. Dist. Atty., Lancaster, for Com.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lancaster County on July 24, 1990. On April 7, 1989, appellant was charged with possession with intent to deliver cocaine and marijuana in violation of the Controlled Substance, Drug, Device and Cosmetic Act. Appellant proceeded to a non-jury trial and was found guilty of possession with intent to deliver cocaine and possession of marijuana. The facts of this case, as summarized by the trial court, are as follows:

... On April 7, 1989, at approximately 6:40 o’clock P.M., Troopers Craig H. Wolf and John Evanco and Detectives Clyde Brown and Joyce Blatt of the Lancaster County Drug Task Force (hereafter “Task Force”), as well as police officers from Pequea Township, executed a search warrant at a farmhouse situated at 61-A Herrsville Road, Pequea Township, Lancaster County, Pennsylvania, the residence of Henry Troupe. (N.S.H. pp. 4-6, 24, 36). The farmhouse is owned by an adjoining property owner and leased to Mr. Troupe. (N.S.H. pp. 33-34).
At approximately 6:55 o’clock P.M., Trooper Wolf observed through the kitchen window a gray 1988 Chevrolet automobile arrive at the farmhouse and driven by Defendant. (N.S.H. pp. 6-7, 17). The automobile was registered to a David Faul. (N.S.H. pp. 66). Defendant had been the target of nurne~ one police investigations. (N.S.H. p. 33). Trooper Wolf recognized Defendant, knew that he had fokmerly resided at that sddreee end that he had kecently moved. (N.S.H. pp. 5, 16, 17, 20, 21). Defendant parked the automobile approximately thirty to fifty feet fi em the farmhouse in a grassy area between the farmhouse and a driveway which services the farmhouse and the landlord~s adjoining nroperty. (N.S.H. pp. 6, 22, 33-34). The property upon which Defendant parked is part of the Troupe leasehold and is used by the occupants and visitok s of the Troupe residence for parkiing. (N.S.H. pp. 6, 29-30, 33-34).
Defendant and an unidentified white female exited the automobile, approached the Troupe reeidence and knocked on the front door. (N.S.H. p. 7, 24). Trooper Wolf opened the front door, grabbed Defendant by the arm and brought him into the residence, (N.S.H. pp. 7, 15-16, 24, 30). Trooper Wolf told Defendant that police officers were executing a search warrant for the residence. (N.S.H. pp. 7, 15). Trooper Wolf took Defendant to the kitchen and conducted a pat down search of Defendant's person which produced no weapons. (N.S.H. pp. 7, 24-25, 80).
Trooper Wolf immediately turned Defendant over to the cuotody of Trooper Evanco, exited the recidence and approached the gray 1988 Chevrolet. (N.S.H. pp. 7-8, 24-25, 30). Through the pacoenger window, Trooper Wolf oboerved an open box on the conoole area between the two front oeato and a waterpipe or "bong" protruding from the inoide box. (N.S.H. pp. 8-9, Commonwealth Exhibit S.H. No, 1)~ Baoed on hic twenty~one yeare of experience in drug law enforcement, Trooper Wolf con~ cluded that the waterpipe wee aced to ingeet controlled ~ubstance~. (N.S.H. pp. 8-9)
Trooper Wolf un~ucceeefu~lly attempted to opexi the locked automobile door. (Nil~H~ p. ~). Trooper Wolf entered the recideuce and, in the presence of Trooper Evanco, asked Defendant for keys to the automobile. (N.S.H. pp. 9, 32). The keys were lying on the kitchen counter. (N.S.H. pp. 27, 32). Defendant showed Trooper Wolf which keys opened the automobile and handed them to Trooper Wolf. (N.S.H. pp. 9, 27, 32). Trooper Wolf exited the residence, unlocked the automobile door and conducted a full search of the passenger compartment and trunk. (N.S.H. p. 10).
The vehicle search produced the following evidence: the aforementioned waterpipe or “bong” (N.S.H. p. 10, Commonwealth Exhibit S.H. No. 1); a man’s green army style field jacket found on the console between the two front seats (N.S.H. pp. 9, 10, 23, Commonwealth Exhibit S.H. No. 2); a shotgun ammunition box found inside the right front jacket pocket containing cocaine (N.S.H. p. 11, N.T. p. 59, Commonwealth Exhibit S.H. No. 3); five plastic bags found inside the right front jacket pocket containing 27.3 grams of marijuana (N.S.H. p. 11, N.T. p. 59, Commonwealth Exhibit S.H. No. 4); two small plastic “Tupperware” containers found inside the left front jacket pocket containing cocaine having a street value of approximately three thousand eight hundred dollars ($3,800.00) if sold by the ounce or ten thousand, five hundred dollars ($10,500.00) if sold by the gram (N.S.H. p. 11, N.T. pp. 60, 62, 65, Commonwealth Exhibit S.H. Nos. 5, 6); a small notebook and an address book found inside the breast jacket pocket (N.S.H. p. 12, Commonwealth Exhibit S.H. Nos. 7, 8).
While Trooper Wolf was outside the residence, Trooper Evanco conducted a full search of Defendant’s person in the kitchen of the residence. (N.S.H. p. 25). The search produced the following evidence: a small black knife taken from Defendant’s right front pants pocket (N.S.H. pp. 25, 26, Commonwealth Exhibit S.H. No. 9); a package of cigarette rolling papers (N.S.H. p. 26, Commonwealth Exhibit S.H. No. 10); and a man’s wallet containing fifteen hundred twenty-five dollars ($1,525.00) in U.S. currency, primarily consisting of fifteen one hundred dollar bills (N.S.H. p. 26, Commonwealth Exhibit S.H. No. 11).
Trooper Wolf reentered the residence, informed Trooper Evanco that he had found alleged controlled substances in the automobile, informed Defendant that he would be charged with possession with intent to deliver controlled substances and advised Defendant of his constitutional rights under Miranda v. Arizona, 383 [384] U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (N.S.H. pp. 12-13). Police did not question Defendant nor did Defendant give any statements at the residence. (N.S.H. pp. 13, 14). After executing the search warrant, the officers handcuffed Defendant and transported Defendant and several other individuals arrested at the scene to the Pennsylvania State Police barracks at Lancaster, Pennsylvania (hereafter “State Police barracks”). (N.S.H. pp. 13, 14, 27).
At 8:45 o’clock P.M., Trooper Evanco advised Defendant of his Miranda rights at the State Police barracks. (N.S.H. pp. 28-29). Defendant was not questioned by Trooper Evanco. (N.S.H. p. 29). Detective Brown was seated at a desk in the detective division of the State Police barracks when Defendant approached him and sat in a chair approximately three feet away. (N.S.H. pp. 37-38). Detective Brown and Defendant were acquainted through prior drug investigations and Defendant referred to Detective Brown by his nickname “Brownie.” (N.S.H. p. 38). The following conversation ensued:
A. ... At that point he says to me, hi Brownie, how are you. I says okay. He says, what’s up. I says, you’re in big trouble.
******
A. Kenny says, can’t you cut me a break. And I says, why, Kenny, I said, you don’t stop dealing. And he says, I’m not dealing. And I said, what’s with the coke, weren’t you bringing it to Henry. And he says, no, it’s mine. And I said, well how much is there. He said, three and a half ounces.
At this point I had seen what was seized and I saw there were some bags of marijuana. I said to Kenny, what about the grass. I said, where is that from. And he nodded to Trooper Evaneo and he said, from his neighbor.
(N.S.H. pp. 38-39). Detective Brown’s supervisor asked him to make some telephone calls and Detective Brown had no further contact with Defendant. (N.S.H. p. 39).

Trial court opinion at 3-7.

Appellant filed an omnibus pre-trial motion in the nature of motion to suppress. On September 11, 1989, an evidentiary hearing was held on the motion to suppress, and the omnibus pre-trial motion was dismissed. On September 14, 1989, appellant filed post-verdict motions in arrest of judgment and for a new trial, which were denied and this timely appeal followed.

Appellant raises the following issues for our consideration:

[I.] Whether the lower court erred in dismissing the Defendant’s motion to suppress the $1525 in currency and other items seized from the person of the defendant?
[II.] Whether the court erred in refusing to suppress the cocaine, marijuana, notebook, jacket, water pipe and other items seized from the automobile being operated by the defendant?
[III.] Whether the court erred in refusing to suppress the statements allegedly made by the defendant?
[IV.] Whether the Defendant was denied the effective assistance of counsel?

Appellant’s brief at 3. As we find no merit to the issues raised in this appeal, we affirm the lower court’s order dismissing appellant’s motions in arrest of judgment and for a new trial.

Appellant’s first issue concerns whether the lower court erred in dismissing appellant’s motion to suppress $1,525.00 in currency and other items seized from his person. This Court enunciated, in Commonwealth v. Rodriguez, 330 Pa.Super. 295, 479 A.2d 558 (1984), the scope of review from an order suppressing evidence:

[W]e must determine whether the evidence supports the court’s factual findings and whether the legal conclusions drawn from those findings were legitimate. This determination is made considering only the evidence of the prosecution’s witnesses and so much of the defense evidence as, fairly read in the context of the record as a whole, remains uncontradicted. Findings supported by the record and legitimate legal conclusions drawn therefrom will not be disturbed, [internal citations omitted]

Rodriguez, supra, 330 Pa.Superior Ct. at 298, 479 A.2d at 560, citing, Commonwealth v. Williams, 317 Pa.Super. 456, 463-64, 464 A.2d 411, 414 (1983). See also, Commonwealth v. Webb, 491 Pa. 329, 332, 421 A.2d 161, 163 (1980) (citation omitted).

Appellant contends that the $1,525.00 in currency and other items seized from his person flowed from his arrest, which appellant argues was illegal and the items seized were the fruits of an illegal and unconstitutional arrest. We find that police did have probable cause to detain appellant, conduct a pat down search of his person and arrest appellant; the arrest was legal and his argument for suppression of the evidence must fail.

We will review appellant’s arguments in a chronological order. First, we must address whether the police had a right to detain appellant during the execution of a search warrant. Appellant argues that he was placed under arrest after he knocked on the front door and was brought into the house by Trooper Wolf. (N.T. p. 21.) We find no merit to appellant’s contention, since it is well established that during the execution of a search warrant, police may properly detain persons who are found on the premises in order to minimize the possibility of harm to the officers and to prevent the concealment or destruction of evidence. Commonwealth v. Markovitch, 388 Pa.Super. 244, 250, 565 A.2d 468, 471 (1989), citing Commonwealth v. Carr, 334 Pa.Super. 459, 483 A.2d 542 (1984). This temporary detention of appellant was not, an arrest.

Oar United States Supreme Court in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), held that the detention of a, suspect during the execution of a, valid search warrant aid noil, violate the: suspect's Fourth Amendment light to fee secare against unreasonable seizure of his person, since the warrant implicitly carried with it the limited authority to detain persons on the premises while a search warramt was being executed. Id. at 705, 101 S.Ct. at 2595, 69 L.Ed.2d at 351. The Snprenie Court in Summers reasoned that this limited authority to detain persons on the premises was based on the desire to protect the safety of the police officers on the scene of the search. Justice Stevens, writing for the majority stated:

Although no special danger to the police Is suggested in this record, the execution of a warrant to search for narcotic:: is the kind of transaction that may give rise to sudden violence or iT,antic efforts to conceal or destroy evidence. The risk of harm to both the police and the: occupants is minimised if the officers routinely exercise unquestioned command of the situation.

Id at 702-703, 101 S.Ct. at 2594, 69 L.Ed.2d at 349-350. In the instant case, after appellant knocked, on the front door of the residence being searched, police were justified in (cringing appellant, hito the residence and detaining Mm. The police officers5 right to detain appellant was based on the police officers5 ooncuiii for their own safety and the safety of others. W c find that the police properly detained appellant while exeentln,g a search warrant of the premises.

Next, it is well settled that police officers, after detaining an individual on the premises during the execution of a valid search warrant, may conduct a pat down search of the Individual for weapons If they reasonably believe that person lias, a weapon in his possession. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), which was based on the United States Supreme Court case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Pennsylvania Supreme Court enunciated the standard for Terry stops and frisks in Pennsylvania:

... even if probable cause to arrest is absent, the police officer may still legitimately seize a person ..., and conduct a limited search of the individual’s outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous.

Id. 434 Pa. at 158-59, 253 A.2d at 279. The Terry search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may be characterized as something less than a ‘full’ search, even though it remains a serious intrusion.” Commonwealth v. Davidson, 389 Pa.Super. 166, 171, 566 A.2d 897, 899 (1989), alloc. denied in 525 Pa. 624, 578 A.2d 412 (1990), quoting Terry, 392 U.S. at 26, 88 S.Ct. at 1882.

In the instant case, upon review of the record, the trial court found and we agree that Trooper Wolf was justified in conducting a pat down search of appellant. Trooper Wolf recognized appellant and knew he formerly resided at the address being searched but had recently moved. (N.S.H. pp. 5, 16, 17, 10, 21.) Appellant knocked on the front door of the residence during the execution of a search warrant for narcotics at the house. Appellant had been the subject of numerous police investigations in the past, the trooper recognized appellant and reasonably believed that this person could be armed and dangerous. We find that Trooper Wolf was justified in conducting a pat down search of appellant.

The evidence in question, however, was not discovered during the pat down search conducted by Trooper Wolf but was discovered during a full search conducted by Trooper Evanco. Trooper Wolf conducted a pat down of appellant’s person which produced no weapons. (N.S.H. pp. 7, 24-25, 30.) Then Trooper Wolf turned appellant over to Trooper Evanco (N.S.H. pp. 7-8, 24-25), at which time Trooper Evanco conducted a full search of appellant. (N.S.H. p. 25.) After Trooper Wolf conducted the Terry search and found no weapons, Trooper Evanco was not justified in conducting a full search of appellant. The Terry search was exceeded by Trooper Evanco, since it was not limited to the discovery of weapons. Now this Court must determine whether the exclusionary rule will apply to the instant case.

When the scope of a Terry search is exceeded, this alone does not automatically exclude the evidence seized from the illegal search. The United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct 2501, 81 L.Ed.2d 377 (1984), stated:

It is clear that the cases implementing the exclusionary rule “begin with the premise that the challenged evidence is in some sense the product of illegal government activity.” United States v. Crews, 445 U.S. 463, 63 L.Ed.2d 537, 100 S.Ct. 1244 (1980) (emphasis added). Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means — -here the volunteers’ search — then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.

Williams, supra at 444, 104 S.Ct. at 2509, 81 L.Ed.2d at 388. Our Pennsylvania courts have also recognized the inevitable discovery doctrine. In Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), our Supreme Court held evidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence. The burden of proving such inevitable discovery rests with the prosecution.

In the instant case, the suppression court ruled that the money and other items found on appellant would have inevitably been discovered after appellant's arrest and the officers conducted a search incident to a lawful arrest In reviewing this finding, we must consider only the (Commonwealth's evidence and the uncontradicted evidence of appellant, and determine whether the lower court's finding is supported by the evidence. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). Applying this standard of review to the present finding, we find sufficient evidence to support the suppression court's finding of facts and conclu~ sions of law.

At the suppression hearing, Trooper Wolf testified that appellant was arrested for possession of controlled sub~ stances found in his automobile, (N~S~H. p. 26~) Although Trooper Evanco was not justified at that time to conduct a full search of appellant, a full search would have been conducted after Trooper Wolf found the controlled sub~ stances in appellant's car and arrested him, Upon review of the record, it was established by a preponderance of the evidence that Trooper Wolf would have conducted a full search of appellant prior ~o transporting him to the State Police barracks. The evidence in question would have been hevitably discovered when police conducted a full search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 28 L.Ed.2d 685 (1969); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978). We find that the evidence found on appellant's person, specifically one thou~ sand five hundred and twenty~five dollars (~1,525~00) and cigarette rolling papers, were properly admitted into evi~ dence. We find appellant's argument to be devoid of merit

Appellant's second issue concerns whether the trial court erred in denying appellant's motion to suppress evi~ deuce seimd from his automobile. Ai~pellant contends that the fact that the water pipe or "bong'" was present in the automobile, alone, did not establish independent probable cause to believe that other items were present in the car. Our Supreme Court in Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971), enunciated the following:

To justify ... a [warrantless] search ... an officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons contained therein which are accessible to the occupants.

Id., 442 Pa. at 101, 275 A.2d at 52. “Thus, where there exists probable cause related to the vehicle or its occupants, a search of the vehicle is permissible.” Commonwealth v. Milyak, 508 Pa. 2, 8, 493 A.2d 1346, 1349 (1985). Probable cause is a common sense standard which “merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime.” Commonwealth v. Rodriguez, 379 Pa.Super 24, 28, 549 A.2d 578, 580 (1988), quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 514 (1983) (citation omitted). In the instant case, Trooper Wolf, with his twenty years’ experience as a trooper, observed what he believed to be a waterpipe or “bong” in the interior of appellant’s car, from a lawful vantage point. Trooper Wolf’s observations gave rise to independent probable cause that contraband may be found in the vehicle. Independent probable cause can be based on evidence which the officer observes in plain view through an automobile window. Commonwealth v. Ferrari, 376 Pa.Super. 307, 326, 545 A.2d 1372, 1381 (1988).

The scope of a warrantless automobile search is controlled by the object of the search and the possible places in which the object may be found. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Commonwealth v. Bailey, 376 Pa.Super. 291, 545 A.2d 942 (1988), alloc. denied in 521 Pa. 609, 557 A.2d 341. Applying this standard to the present case, it is clear that Trooper Wolf had probable cause to search the passenger compartment of the vehicle, the field jacket and containers therein, as possible places where drugs may be found. We find no merit to the issue raised by appellant, and the motion to suppress cocaine, marijuana and drug paraphernalia was properly denied by the lower court.

Appellant’s third issue concerns whether the lower court erred in denying appellant’s motion to suppress statements made by appellant subsequent to his arrest. Appellant contends that certain statements made at the State Police barracks were the product of the prior illegal conduct of the police. The following conversation ensued, as testified by Detective Brown:

A. ... At that point he says to me, hi Brownie, how are you. I says okay. He says, what’s up. I says, you’re in big trouble.
* >Jt * He * *
A. Kenny says, can’t you cut me a break. And I says, why, Kenny, I said, you don’t stop dealing. And he says, I’m not dealing. And I said, what’s with the coke, weren’t you bringing it to Henry. And he says, no, it’s mine. And I said well, how much is there. He said, three and a half ounces.

(N.S.H. pp. 38-39). Since we have previously found that the detainment and automobile search of appellant’s car was lawful, the statements made by appellant were not the fruit of the poisonous tree, and were properly admitted into evidence.

Appellant also contends, however, that the statements must be suppressed since appellant never explicitly waived his Miranda rights. In Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979), the Pennsylvania Supreme Court held that an explicit waiver to the Miranda warnings is a mandatory requirement. At the suppression hearing, the Commonwealth conceded this point; the lower court found, and we agree, that there was no explicit waiver prior to the admission of the statements. Although the lower court found there was no explicit waiver, it found no error admitting the statements as volunteered and gratuitous statements, and not part of the police interrogation.

Custodial interrogation has been defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” Commonwealth v. Johnson, 373 Pa.Super. 312, 319, 541 A.2d 332, 336 (1988), alloc. denied in 520 Pa. 596, 552 A.2d 250, quoting Commonwealth v. Sites, 427 Pa. 486, 492, 235 A.2d 387, 390 (1967) (emphasis supplied). “ ‘Interrogation’ is police conduct ‘calculated to, expected to or likely to evoke admission.’ ” Johnson, supra 373 Pa.Super. at 320, 541 A.2d at 336, quoting Commonwealth v. Brantner, 486 Pa. 518, 527, 406 A.2d 1011, 1016 (1979) (quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969)). An inculpatory statement which is not made in response to police interrogation, then, “is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings.” Johnson, supra 373 Pa.Super. at 320, 541 A.2d at 336, quoting Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983) (citations omitted). In the instant case, appellant asked Detective Brown, whom he had known previously, “What’s up?” Detective Brown replied, “You’re in big trouble.” Detective Brown’s response was not likely to, nor expected to, evoke admission. Detective Brown simply made a comment which was not of an inquisitive nature. Appellant’s reply, “Can’t you cut me a break?”, was a volunteered statement and not the result of police interrogation. The trial court found, and we agree, that the remainder of Detective Brown’s question, “why, Kenny, I said, you don’t stop dealing” was suppressible since it was of an inquisitive nature and likely to evoke an admission from appellant.

Now our Court must determine whether the trial court, by admitting the statements, committed reversible error. In order to reverse a lower court decision, the error complained of must constitute reversible error. Reversible error will be found where the evidence ruling is shown by the complaining party to be not only erroneous but harmful to the final outcome. Hart v. W.H. Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989) (citation omitted). On the other .hand, the Pennsylvania Supreme Court stated that a harmless error occurs when, “the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.” Commonwealth v. Story, 476 Pa. 391, 412, 383 A.2d 155, 166 (1978), citing Commonwealth v. Davis, 452 Pa. 171, 178-179, 305 A.2d 715, 719 (1973) (citation omitted).

The lower court found the properly admitted and uncontradicted facts of this case to be, as follows:

(1) that defendant was the driver and only male occupant of the vehicle from which the man’s jacket containing the cocaine and marijuana was seized; (2) that the nearly four ounces of cocaine found in the jacket had a resale value of between approximately $3,800.00 if sold by the ounce or $10,500.00 if sold by the gram; (3) that Trooper Evanco testified on the basis of his twenty years in drug law enforcement that the additional half-gram bag of cocaine found in the jacket was packaged in a manner and quantity ready for resale (N.T. pp. 60-61); (4) that the notations in the notebook found in the jacket were consistent and highly indicative of the records of drug sales (N.S.H. pp. 62-64); (5) that defendant possessed the above-mentioned controlled substances, notebook and $1,525.00 in cash upon his arrival at a residence for which police had obtained a search warrant based on probable cause to believe that drug sales were taking place; and (6) that after his arrest defendant requested Detective Brown to “cut him a break”____

Tmi court omniua at 22. This evdence which was properly admitted and a» so oves whebiung of fgapellunttj guilt ot possession oí ¡Marijuana, and possession with intent to deliver cocaine. AtpdlantA sistemo!,it, admitting the drugs to bo ids, is so instgvfwane by ooi ap: visen to the overwhelm" ing evidence establishing' guilt beyond a reasonable doubt that a.ppAiuni was not prejudiced by the error nor did tlio error eoiitribufe to the verdict. ‘i'hc error complained of by appellant is harmless error wad the lower court decision will not be overturned. We find no merit to the issue raised by afipeilaat,

Note., appellant contends ¡hat trial counsel was Ineffecolve S# jailing to call a witness. As a general principle, trial counsel is, presumís! co Pe (Afectivo mid sppellnfii lias the burilen oí’ ¡'«roving otherwise. Our cupieuie Cocui enunciated the follow lug' appellate standard Nr reviewing a cMiunt of inefNoth'eness of counsel;

Vliere are three Wmmnts to a valid claim of ineffectiveness. We Intpure Amt «ehether día underlying' claim Is of avguabie ,merit; that Is, vr/bethcr lie disputed action or emission by counsel ws of ouostionsbA legal soundness. If so, we eat whelm counsel bail any reasonable basis Nr tl>e mies item AN action or omission which urn: designed to eíteotastr bis ohentA intercut. if be did, oui’ linpuhT ends. If ¡'lot, die appellant will ho granted rehef If be so demo,, Arates ¡that conuseFa improper course of conduct woibed in his prejudicio, s.u, bad mi adverse (Aibci upon the outcome of flic proceedings.

Cimi.'mfm't'Xxiiih u. iterar, &N ta„ 77, Ni, Jyü a,.2d 3!ii, Sib (1928), tPi’wii, fP?mmic¿«tcai¿k r Pierce, old 'Wo 193, 527 cited 973 (1987); Ccer niom,>caJJc!t r„ Pcil/ve-vi, 472 'da. 128, 371 A.2d 438 (1977), íPeeei¡;mrmfíJ!lk es reí Wadehwím ii Mütiyfí.&tí¡, 427 Iba. 399, 239 te,did 349 (1937),,

3/Love ripe* ificcily, with respecs, 0« appelkntA allegations cte IneAecdve asiistnnce of conniví In like content of iaiai counseFs failure te cull a, «dtaess, this Court lias stated that, appellant must demonstrate die billowing:

(i) the Idvatte of die witnmsa ,,
(2) that counsel knew of the existence of the witnesses,
(3) the material evidence that the witnesses would have provided and,
(4) that manner in which the witnesses would have been helpful to his cause.

Commonwealth v. Polk, 347 Pa.Super. 265, 500 A.2d 825 (1987).

Appellant argues that trial counsel failed to call Sara Lafeld, who was prepared to testify that she did not notice a waterpipe or “bong” in the front seat of the car. The Commonwealth contends that the testimony of Sara Lafeld would have been given little weight. Appellant has shown by affidavit, Exhibit A, that Sara Lafeld was willing and available to testify and trial counsel knew of the existence of the witness. “Assuming appellant’s counsel knew of the witnesses, failure to call possible ... witnesses is not per se ineffective assistance of counsel.” Commonwealth v. Robinson, 487 Pa. 541, 546, 410 A.2d 744, 746 (1980), quoting Commonwealth v. Owens, 454 Pa. 268, 274, 312 A.2d 378, 381-382 (1973). The decision of whether to call a witness is a matter of trial strategy. Robinson, supra.

In the present case, it is unlikely that the testimony of Sara Lafeld regarding the waterpipe or “bong” would have been helpful to appellant’s case, as the credibility of this witness would be seriously questioned by a jury due to the nature of the relationship between appellant and the witness. Commonwealth v. Porter, 524 Pa. 162, 569 A.2d 942 (1990) (Defense counsel’s decision not to call witnesses cannot be faulted when their testimony could be easily subverted.). Therefore, appellant has failed to meet his burden of proving that trial counsel acted unreasonably and hence, trial counsel was not ineffective for failing to call the witness.

As we find no merit to the issues raised in this appeal, we affirm the lower court order and judgment of sentence. Judgment of sentence affirmed.

      . Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 1, as amended; 35 P.S. 780-113(a)(30), supplement.

      . In Bussey, the Supreme Court stated, "By explicit waiver, we mean an outward manifestation of a waiver such as an oral, written or physical manifestation." Id. 486 Pa. at 231 n. 11, 404 A.2d at 1314 n. 11.

      . Sara Lafeld was the unidentified female in the automobile with Kenneth Hoffman on April 7, 1989.. Appellant’s brief at 29.