author: HOFFMAN, Judge: KELLY, Judge,

text:
    599 A.2d 1321
    COMMONWEALTH of Pennsylvania v. George HENRY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1991.
    Filed Oct. 21, 1991.
    Reargument Denied Dec. 27, 1991.

      Marc Ira Rickies, Newton, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for appellee.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for possession and possession with intent to deliver a controlled substance (cocaine), and possession of drug paraphernalia. Appellant contends that the trial court erred in refusing to suppress statements he made to police following his arrest. For the reasons set forth below, we agree with appellant that his first oral statement was improperly admitted; we nevertheless find that this error was constitutionally harmless. Accordingly, we affirm the judgment of sentence.

At approximately 5:10 p.m. on April 13, 1989, appellant was stopped and arrested in Ambler, Montgomery County, Pennsylvania. The warrantless arrest was premised upon information police had received from two confidential informants concerning appellant’s alleged drug activity. Appellant was transported in a police cruiser to the Upper Dublin Township Police Department. Police searched the vehicle after appellant had exited it, and cocaine was found in the back seat. As a result, appellant was charged in Montgomery County with various drug offenses. He was arraigned at approximately 9 p.m. Thereafter, appellant gave an oral and written confession to police while he was in custody in Montgomery County. On April 14, police executed a search warrant at appellant’s home in Bensalem, Bucks County, which resulted in the seizure of cocaine and related paraphernalia. Appellant was transported to Bucks County, and the instant charges were filed. While in custody in Bucks County, appellant gave another oral confession to police.

Appellant filed a motion to suppress his statements to the police. These motions were denied. Appellant then agreed to incorporate the suppression testimony into the record, and to proceed to a non-jury trial. The Commonwealth presented additional evidence at the bench trial, and on January 8, 1990, appellant was found guilty of all charges. In timely-filed post-verdict motions, appellant alleged error in the disposition of pre-trial motions. The motions were denied, and on August 27, 1990, appellant was sentenced to a three-to-six-year term of imprisonment. This appeal followed.

Our Supreme Court has summarized our standard of review in appeals from the denial of suppression motions as follows:

As we stated in Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976),
... In reviewing this ruling our initial task is to determine whether the factual findings are supported by the record. “In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are in error ...[.]
See also, Commonwealth v. Berkheimer, 505 Pa. 506, 481 A.2d 851 (1984); Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980); Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977).

Commonwealth v. Fahy, 512 Pa. 298, 309, 516 A.2d 689, 694-95 (1986). See also Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986) (Opinion Announcing the Judgment of the Court), cert. denied, 477 U.S. 904, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986).

Appellant contends that the court erred in refusing to exclude incriminating statements he made to police. This argument focuses on the oral confession appellant made in Montgomery County. Appellant argues that the statement taken from him while in police custody was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, appellant submits that his statement should have been suppressed because it was made after he had invoked his right to remain silent. The Commonwealth, on the other hand, argues that appellant waived his Miranda rights. Under Miranda, if a suspect,

indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his-’privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

384 U.S. at 473-74, 86 S.Ct. at 1627-28 (footnote omitted). See also Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Mignogna, 401 Pa.Super. 188, 585 A.2d 1 (1990); Commonwealth v. Carbaugh, 356 Pa.Super. 42, 514 A.2d 133 (1986), allocatur denied, 515 Pa. 573, 527 A.2d 535 (1986); Commonwealth v. Hackney, 353 Pa.Super. 552, 510 A.2d 800 (1986). If this rule is violated, the prosecution may not use a suspect’s responses to the custodial interrogation in its case-in-chief. Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612. See also Nelson v. Fulcomer, 911 F.2d 928, 933 (3d Cir.1990).

Here, the facts are undisputed concerning the circumstances of appellant’s statement. The only evidence presented on this question was the testimony of Officer William Joseph McDermott of the Upper Dublin Police Department. Officer McDermott testified that appellant was placed in a holding cell after his arrest. At approximately 6:00 p.m., within an hour of the arrest, McDermott read appellant his Miranda rights. N.T. November 14, 1989 at 17-18. Appellant refused to sign a form acknowledging that he had been made aware of his rights. Id. at 18. Appellant made no statement to police at this time. Appellant was arraigned at 9 p.m. Thereafter, McDermott again approached appellant and read him the Miranda warnings. When McDermott asked appellant if he wished to speak to police without a lawyer being present, appellant “responded he had no desire to speak with anybody at that time.” Id. at 20-21. At this point, McDermott testified,

I told George [appellant] we had a search warrant for his house in Bucks County and that we were on our way over there. We had just finished up typing up the warrant and we were going to Bucks County to serve the warrant on his house and at that time he said, “You got me.”

Id. at 21. McDermott immediately exploited this disclosure: I asked him, “George, tell us whether you have any cocaine, do you have anything else in the house”?

He told me what he had left was in a cheese curl can with a false bottom and would be on the nightstand or bed table in the bedroom.
He also told me that his father would be home.

Id. This statement was not reduced to writing, but McDermott took a thorough written statement from appellant the next day, after appellant’s home had been searched. In the latter statement, appellant incriminated himself regarding both the cocaine that had been found in the police car, and the items that were found when the search warrant was executed.

On these facts, there is no question that appellant invoked his right to remain silent on the night of his arrest when he stated that he had no desire to speak with anyone. See and compare 1 W. LaFave & J. Israel, Criminal Procedure, § 6.9, at 531 n. 57 (1984 & Supp.1991) (collecting cases). Once a suspect invokes his or her right to silence, that right must be “scrupulously honored” by the police:

A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt “fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored____” 384 U.S., at 479, 86 S.Ct., at 1630. The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Id., at 474, 86 S.Ct., at 1627. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.”

Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975) (footnote omitted). We must determine whether the police fully respected appellant’s right to remain silent, or whether appellant later waived that right.

The Commonwealth suggests that appellant’s right was scrupulously honored because the oral statement did not result from police interrogation, but from appellant’s voluntary waiver of his right. We cannot agree. Custodial interrogation encompasses not only express questioning of a suspect in custody, but also its “functional equivalent,” see Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980); thus, Miranda’s prohibition bars “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 5. Ct. at 1689-90 (footnotes omitted). Application of this rule necessarily is contextual. Cf. Nelson v. Fulcomer, supra, 911 F.2d at 934. As Judge Popovich noted in his concurring opinion in Commonwealth v. Mignogna, supra:

judicial inquiry in each instance should focus on the circumstances attending the defendant’s invocation of his or her right to silence, as well as the circumstances attending any further attempt at questioning. Hence, the test should ask whether the official purpose of resuming questioning was to entice the arrestee to abandon his right to remain silent, or simply to find out whether he or she had a change of mind. Only then can it be concluded whether, in fact, the defendant’s “ ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Mosley, 423 U.S. at 104, 96 S.Ct. at 326; see also Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir.1988).

401 Pa.Super. at 218, 585 A.2d at 15 (POPOVICH, J., concurring).

Here, after careful review of all the circumstances attending appellant’s oral statement, we find that his right to remain silent was not scrupulously honored, and that the confession resulted from custodial interrogation. As noted above, appellant unequivocally invoked his right to remain silent, and there is no indication that he later expressly or impliedly waived that right. The confession was not spontaneous, nor can the record support a finding that appellant spontaneously decided to waive his right to remain silent. Instead, appellant’s confession was made only after the police determined to continue talking to him despite this assertion of his right to remain silent. Moreover, the nature of Officer McDermott’s conversation with appellant was not neutral or innocuous. The Officer focused specifically on the criminal investigation, confronting appellant with the fact that he was going to execute a search warrant at appellant’s home. Although the statement about the search warrant was not in question form, this alone is not dispositive. See Rhode Island v. Innis, supra. The obvious purpose of informing appellant of the warrant was to impress upon him the futility of his case, and the concomitant futility of remaining silent. McDermott’s follow-up question provides a further indication that, from the moment he initiated the conversation with appellant, he was attempting “to entice the arrestee to abandon his right to remain silent.” See Commonwealth v. Mignogna, supra (POPOVICH, J., concurring). Appellant’s initial response to McDermott, though inculpatory, was nevertheless vague (“You got me”). Rather than asking appellant what he meant by this, or if he now intended to waive his right to remain silent, the Officer proceeded to ask specifically whether there was cocaine in the house. Such a question, of course, did not seek an explanation of the prior statement, but went right to the heart of the Commonwealth’s case against appellant, and the question obviously was designed to elicit an incriminating response. In light of these circumstances, we conclude that the Officer knew or should have known that his action was reasonably likely to elicit an incriminating response, and thus was the “functional equivalent” of custodial interrogation. Because appellant was interrogated by police immediately after invoking his right to silence, we hold that his right, under Miranda and its progeny, to cut off questioning was not scrupulously honored. The confession obtained as a result of this violation, therefore, should not have been admitted at trial.

Appellant also argues that other statements he made to police should have been excluded. We should first emphasize the narrow scope of this argument. Appellant made numerous statements to police in addition to the oral statement we have discussed above. For example, appellant volunteered a statement on his way to arraignment in Montgomery County, see N.T. November 15, 1989 at 5-6, he gave a signed confession to Officer McDermott at 1:00 p.m. the day after his arrest, see N.T. November 14, 1989, at 22, he made a statement to Bensalem Township Police Officer Michael Kruvczuk after he had been transported to Bucks County, see id. at 67-69, and he made a series of statements to Officer McDermott in the months following his arrest. See id. at 24-25. Appellant does not challenge the admissibility of all of these statements; instead, he focuses only on the statements made to Officer Kruvczuk in Bucks County, see Brief for Appellant at 21, and thus we need not concern ourselves with the admissibility of the remaining statements.

Appellant’s argument on the Bucks County statement verges on boilerplate, as he simply alleges that the statement is inadmissible as “fruits of the poisonous tree.” See id. Although we have held that appellant’s initial confession was improperly obtained, it does not follow that his later statements necessarily are inadmissible. See generally W. LaFave & J. Israel, supra, § 9.5. Importantly, the interrogation by Kruvczuk, unlike that conducted by Officer McDermott, was not inconsistent with appellant’s prior assertion of his right to remain silent. As we have noted above, appellant asserted his right to remain silent by stating that he did not wish to speak to anybody “at that time.” Thus, appellant did not indicate that he never wished to speak to police. The Bucks County statement also was made to a different officer, in a different county, and more than 15 hours following the first oral statement to McDermott. In addition, appellant was read his Miranda rights before he made the statement, and he expressly waived those rights. Although the questioning concerned the same offense (i.e., the possession of drugs and paraphernalia in appellant’s home in Bucks County), the Mignogna Court recognized that this factor alone is not dispositive, see 401 Pa.Super. at 198, 585 A.2d at 6, and we are satisfied that, considered in light of all the circumstances, the statement to Officer Kruvczuk is admissible. See id. See also Oregon v. Elstad, 470 U.S. 298, 310, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985).

Our inquiry does not end here, as we still must determine whether appellant is entitled to a new trial. The Supreme Court of the United States recently has made clear that the erroneous admission of a confession can be constitutionally harmless, even if the confession was coerced. Arizona v. Fulminante, — U.S.-, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (physical coercion). See also Common wealth v. Santiago, 405 Pa.Super. 56, 591 A.2d 1095 (1990) (Miranda violation), Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977) (Miranda violation). Here, we are satisfied, beyond a reasonable doubt, that the erroneous admission of appellant’s oral confession to Officer McDermott was harmless. The case against appellant was overwhelming, as the Commonwealth produced not only the cocaine and paraphernalia constitutionally seized {see supra, note 2) from appellant’s bedroom, but also evidence of appellant’s arranging the prior delivery in Montgomery County (which was relevant to demonstrating his intent to deliver, see supra, note 2), and his written, far more detailed confession that was made to Officer McDermott the day after his arrest. This case, unlike Fulminante, does not involve a situation where it was difficult, if not impossible, to successfully prosecute absent the defendant’s admissions. See — U.S. at-, 111 S.Ct. at 1258. In addition, and again unlike Fulminante, this is not a situation where the improperly obtained confession led to the admission of other prejudicial evidence. The confession was concerned only with whether and where cocaine would be found in appellant’s home. Because the police already had sufficient probable cause to obtain a search warrant for appellant's home independent of his confession, these items inevitably would have been discovered. In short, this confession merely confirmed for the police what they already had probable cause to believe. We do not wish to downplay the potential harmful effect of improperly admitting a confession. As the Fulminante Court noted:

A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him____ [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct____”

Id. at-, 111 S.Ct. at 1257 (quoting Bruton v. United States, 391 U.S. 123, 139-40, 88 S.Ct. 1620, 1629-30, 20 L.Ed.2d 476 (1968) (White, J., dissenting)). Nevertheless, on the record presented in this case, and in light of Fulminante, we must hold that the admission of appellant’s oral statement was constitutionally harmless.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring:

In all aspects except one, I join in the majority opinion. I agree that appellant’s exercise of his right to silence was not “scrupulously honored” and that the error in admitting statements made thereafter was harmless in view of the fact that appellant’s confession was both purely cumulative and wholly unnecessary to convict him of crimes for which his guilty had been otherwise properly and overwhelmingly established. However, I am unpersuaded that the United States Supreme Court’s holding in Arizona v. Fulminante, — U.S.-, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) supports this result.

Before reaching the applicability of the harmless error doctrine, the Court in Fulminante addressed the question of whether a “credible threat of physical violence” improperly induced Fulminante into confessing. — U.S. at-, 111 S.Ct. at 1252, 113 L.Ed.2d at 316. A five to four majority of the Court agreed with the Arizona Supreme Court that under the totality of the circumstances, Fulminante’s will was overborne and thus concluded that the confession obtained was a product of actual coercion. Id.

Conspicuously absent from the Court’s decision in Fulminante is any discussion as to whether Fulminante’s confession was obtained in violation of the Fifth Amendment prophylactic right to remain silent described first in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There is good reason for this fact: the question of the existence of a Miranda violation is materially distinct from the question posed to the Court in Fulminante. As the United States Supreme Court has explained, “[a] Miranda violation does not constitute coercion but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements.” Oregon v. Elstad, 470 U.S. 298, 306 n. 1, 105 S.Ct. 1285, 1292 n. 1, 84 L.Ed.2d 222, 230-31 n. 1 (1985) (emphasis in original); compare Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Unlike actual coercion, unwarned questioning does “not abridge [a defendant’s] constitutional privilege [to remain silent] ...,” but rather represents a departure “only from the prophylactic standards ... laid down by [the United States Supreme Court] in Miranda____” Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182, 194 (1974).

This distinction is not without a difference. Although it is true that statements procured in violation of Miranda must be suppressed, the Court has held that fruit derived thereof is admissible. Id. For analogous reasons, the Court has held that presumptively involuntary statements taken in violation of Miranda may be used by the prosecution for impeachment purposes on cross-examination. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). These holdings do not extend to cases of actually coerced confessions.

Before Fulminante, the distinction between actually and presumptively coerced confessions was relevant with regard to harmless error as well. In deciding, as the Supreme Court did in Fulminante, that the improper introduction at trial of an actually coerced confession is subject to harmless error analysis, the Court overturned a well established line of precedent which held to the contrary. See Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945) (holding that introduction of an actually coerced confession deprives the defendant of his Fourteenth Amendment rights to due process even if ample evidence existed to otherwise support the conviction); Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964) (same); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (holding introduction of actually coerced confession constitutes reversible error even where confession was cumulative in nature); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (same). Essentially, the Court determined that the prejudicial quality of testimony regarding an actually coerced confession is, like all other improperly introduced testimony at trial, capable of review. At this point in time, the Fulminante decision stands as the sole, albeit the dispositive, case on this point.

In contrast, cases applying the harmless error analysis to the introduction of presumptively coerced statements are legion. See e.g. Pennsylvania v. Muniz, 496 U.S. 582, 605 & n. 22, 110 S.Ct. 2638, 2652 & n. 22, 110 L.Ed.2d 528, 555 & n. 22 (1990) (holding that although Miranda required the suppression of “testimonial” statements made before defendant was advised of his constitutional rights, “the state court is free, of course, to consider this [harmless error] question upon remand.”); Berkemer v. McCarty, 468 U.S. 420, 443, 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317, 336 (1984) (applying harmless error analysis to improper introduction of statements obtained during custodial interrogation and without prior Miranda warnings); Commonwealth v. Hubble, 509 Pa. 497, 515, 504 A.2d 168, 177 (1986) (applying harmless error analysis to improper introduction of statements obtained in violation of Fifth Amendment right to counsel); Commonwealth v. Rodgers, 472 Pa. 435, 449, 372 A.2d 771, 777 (1977) (applying harmless error analysis to improper introduction of statements made following refusal to honor exercise of right to remain silent); Commonwealth v. Cooper, 468 Pa. 481, 486, 364 A.2d 296, 299 (1976) (applying harmless analysis to prosecutor’s improper comment on defendant’s election to remain silent); Commonwealth v. Davis, 452 Pa. 171, 178, 305 A.2d 715, 719 (1973) (same); Commonwealth v. Caswell, 316 Pa.Super. 462, 475, 463 A.2d 456, 462 (1983) (Cavanaugh, J., dissenting) (applying harmless error analysis to improper introduction of statements obtained following refusal to honor election to remain silent); Commonwealth v. May, 314 Pa.Super. 577, 582, 461 A.2d 308, 310 (1983) (Cavanaugh, J., dissenting) (applying harmless error analysis to improper introduction of statements obtained before defendant was advised of Miranda rights); Commonwealth v. Flynn, 248 Pa.Super. 62, 72, 374 A.2d 1317, 1322 (1977) (applying harmless error analysis to improper introduction of testimony regarding defendant’s exercise of right to silence). Indeed, the only cases involving presumptively coerced statements which even arguably suggest that harmless error doctrine should not be applied are those in which the courts may be seen to apply a virtually per se harmful error presumption in the analysis. See e.g. Commonwealth v. Bullard, 465 Pa. 341, 349-350, 350 A.2d 797, 801 (1976) (“Because a confession is the most damning of all evidence, we cannot say that we are convinced beyond a reasonable doubt that the error did not affect the judgment.”); Commonwealth v. Carbaugh, 356 Pa.Super. 42, 47, 514 A.2d 133, 137 (1986) (same conclusion); Commonwealth v. Petrino, 332 Pa.Super. 13, 29, 480 A.2d 1160, 1168 (1984) (same conclusion); but see Commonwealth v. Holland, 518 Pa. 405, 415, 543 A.2d 1068, 1072 (1988) (introduction of statements made by lay witnesses regarding the voluntariness of a confession found to be harmless error); Commonwealth v. Maloney, 469 Pa. 342, 355, 365 A.2d 1237, 1244 (1976) (curative instruction given following improper admission of statement regarding right to silence held sufficient not to require mistrial); Commonwealth v. Mitchell, 246 Pa.Super. 132, 138, 369 A.2d 846, 849 (1977) (recognizing that harmless error analysis is appropriate even if presumptively coerced confession is improperly introduced). Nonetheless, no such case holds that the harmless error approach is inapplicable in cases of presumptively coerced confessions.

The instant case, unlike Fulminante, involves merely a question of presumptive coercion. No evidence as to actual coercion is a part of the record, nor was any argument raised in this regard. Rather, appellant argues, and we agree, that his prophylactic right to silence as set forth in Miranda was violated when the police failed to “scrupulously honor” his “right to cut off questioning.” See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975). With or without the benefit of the Supreme Court’s holding in Fulminante, this Court would unquestionably be authorized and indeed required to address the question of whether the instant error was harmless. See Commonwealth v. Rodgers, supra. Thus, any reliance placed on Fulminante in support of this conclusion, I find to be misplaced.

As I agree that the error was harmless, I join in the result reached by the majority. Because I believe that Fulminante is unnecessary and largely irrelevant to this conclusion, I must concur.

      . The court did suppress a statement that appellant made to the second confidential informant, which was overheard by a police officer when the informant telephoned appellant to arrange a drug buy. The propriety of this ruling is not at issue on appeal.

      . Appellant also contends that the trial court erred in (1) refusing to suppress physical evidence seized as a result of an allegedly illegal arrest; (2) refusing to suppress physical evidence seized from appellant’s home pursuant to an allegedly defective search warrant; and (3) denying his motion to exclude evidence concerning the Montgomery County drug charges. These claims may be rejected summarily.
      Appellant’s contention that his initial arrest in Montgomery County was illegal is premised on the officers lacking probable cause. For this reason, appellant argues, all evidence obtained as a result of this illegality should have been suppressed. After carefully reviewing the suppression hearing, we agree with the trial court that the first hand knowledge police had of an arranged drug buy, combined with information provided by the confidential informant, which in turn was corroborated by the officers’ observations of appellant’s conduct, provided sufficient probable cause to justify the arrest without a warrant. See Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990 (1988). See generally W. LaFave, Search and Seizure, § 3.3(f) (1987 & Supp.1991). Moreover, as the trial court adequately disposed of this claim in its Opinion, we need not address it further.
      Appellant’s claim that the court should have suppressed the evidence seized during the execution of the search warrant at his home is similarly meritless. Appellant argues that probable cause did not exist to support the issuance of the warrant. The probable cause affidavit for the warrant included admissions that appellant made on the night of his arrest. We hold, infra, that this oral confession was obtained in violation of appellant's Miranda rights. Even when the confession is excluded from the analysis of the probable cause affidavit, however, it is clear that the affidavit was sufficient. Appellant had been stopped by police while he was on his way to meet a confidential informant to effect a pre-arranged delivery of cocaine. The informant had arranged the transaction, in the presence of a police officer, by telephoning appellant at his home. Consistent with this information, appellant was stopped and was found in possession of cocaine. Because these facts alone amply supported a finding that there was a fair probability that contraband would be found at appellant’s home, the inclusion of appellant’s confession in the affidavit does not defeat the finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See generally W. LaFave, supra, at § 4.4(c).

        Finally, appellant claims that the court erred in denying his motion in limine, which sought to have excluded all evidence concerning the drug charges pending in Montgomery County. Appellant argues that this evidence was irrelevant. Reference to an accused’s prior criminal activity is not admissible to prove the accused’s propensity or character for such conduct. See, e.g., Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988); Commonwealth v. Percell, 499 Pa. 589, 592, 454 A.2d 542, 544 (1982). See also L. Packel & A. Poulin, Pennsylvania Evidence § 405, at 159 (1987 & Supp.1990). Evidence of other crimes may be admissible for other purposes, however. Thus, for example, courts traditionally have held that such evidence may be admitted to show (1) motive, (2) intent or knowledge, (3) absence of mistake or accident, (4) common scheme or plan, or (5) identity. E.g., Commonwealth v. Crawley, 514 Pa. 539, 556, 526 A.2d 334, 343 (1987). In addition, we have noted that, under a “same transaction" exception, "evidence of other crimes may be admissible where the evidence forms part of the chain or sequence of events which is part of the history of the case and it enhances the natural development of the facts." Commonwealth v. Nolen, 390 Pa.Super. 346, 353, 568 A.2d 686, 689 (1989) (citing Commonwealth v. Lark, supra), allocatur granted, 525 Pa. 644, 581 A.2d 570 (1990). See also L. Packel & A. Poulin, supra, § 405.1(a)(8), at 170-71. Here, we are satisfied that evidence regarding the Montgomery County drug offense was admissible under the "same transaction” exception. In addition, in light of the fact that appellant was charged in Bucks County with possession with intent to deliver, evidence regarding the attempted delivery in Montgomery County was relevant to demonstrate appellant’s intent with regard to the cocaine and paraphernalia seized from his home.

      . We should note that, in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that when a suspect invokes his or her right to counsel, questioning must cease and may not be resumed until counsel has been provided or the suspect initiates the communication. In this case, although appellant claimed that he requested counsel, the police officers testified that he did not; the suppression court resolved this credibility determination against appellant, and because the court’s finding is supported by the evidence, Edwards is inapplicable here.

      . The responses can be used, of course, to impeach the accused’s trial testimony. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

      . We note that the home was searched pursuant to a search warrant. The affidavit of probable cause filed in support of the warrant made reference to appellant’s admission that there was cocaine in his home. Thus, the affidavit for this warrant was not completed until after appellant made this statement.

        . On the question of waiver, of course, the Commonwealth has the burden of demonstrating that "the statements of the accused were voluntary and the waiver of his constitutional rights was knowing and intelligent.” Commonwealth v. Edwards, 521 Pa. 134, 149, 555 A.2d 818, 826 (1989).

      . As we have noted above, appellant has raised no argument challenging the admissibility of this second statement.

      . I note that in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), our Supreme Court held that the Pennsylvania Constitution precluded the use of statements obtained in violation of Miranda even to impeach the defendant’s trial testimony. In 1984, however, the people of Pennsylvania rendered dead letter law the Triplett holding by amending the constitution to allow for the prosecution’s use of such statements to impeach. See Commonwealth v. Baxter, 367 Pa.Super. 342, 532 A.2d 1177 (1987). Accordingly, the United States Supreme Court’s decision in Harris v. New York, supra, remains the law in Pennsylvania today.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    599 A.2d 1329
    COMMONWEALTH of Pennsylvania v. Rena Mae RODGERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 27, 1991.
    Filed Oct. 24, 1991.
    Reargument Denied Dec. 31, 1991.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for interference with custody of children and conspiracy to interfere with custody of children. Appellant contends that (1) the evidence was insufficient to support the convictions for either charge; and (2) the trial court erred by admitting appellant’s post-arrest statement into evidence because the Commonwealth failed to establish the corpus delicti of any of the crimes charged. For the following reasons, we vacate the judgment of sentence and order appellant discharged.

During the week of March 13, 1988, appellant agreed to allow four individuals to sell drugs out of her apartment, in exchange for drugs and money to pay her bills. (N.T., May 9, 1990, at 11-12). According to the Commonwealth’s witness, three minor boys were put to work selling drugs to customers who came to appellant’s front door. (N.T., May 9, 1990, at 2-24). Eventually, two of the three boys were murdered. The surviving boy led the police to appellant’s apartment, where she was arrested and charged with coercion, interference with custody of children, and conspiracy to interfere with custody of children. Appellant was convicted of three counts of interference with custody of children and one count of conspiracy following a non-jury trial on May 9, 1990. Appellant was sentenced to four terms of eleven-and-one-half-to-twenty-three-months incarceration, to be served concurrently. Following the denial of appellant’s timely post-trial motion, this timely appeal followed.

Appellant first contends that the evidence was insufficient to support her conviction for interference with custody of children. The test for reviewing a sufficiency claim is well-settled:

whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988) (citations omitted), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). See also Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102,1103 (1985); Commonwealth v. Brady, 385 Pa.Super. 279, 282, 560 A.2d 802, 804 (1989).

Section 2904 of the Pennsylvania Crimes Code, which defines interference with custody of children, provides, in relevant part:

(a) Offense defined. — A person commits an offense if he knowingly or recklessly takes or entices any child under the age of 18 years from the custody of its parent, guardian or other lawful custodial, when he has no privilege to do so.
(c) Grading. — The offense is a felony of the third degree____

18 Pa.C.S.A. § 2904. “In enacting § 2904, the legislature was focusing primarily on the problem of ‘parental kidnapping.’ ” Commonwealth v. Thrush, 23 Pa. D. & C. 3d 302, 305 (Cumberland County 1980). Moreover, the analogous Model Penal Code section, from which the Pennsylvania provision is derived, Commonwealth v. Chubb, 3 Pa. D. & C. 3d 676, 679 (Cumberland County 1977), notes that the primary interest sought to be protected by this provision is that of the custodial relationship. Model Penal Code § 212.4 Comment.

Very few cases have provided an opportunity for our courts to examine this offense, but a review of the few decided cases reveals that the Commonwealth has not carried its burden with respect to all elements of the offense. First, it has not presented evidence that appellant took or enticed the three minors. Second, it has not shown that there was a substantial interference with parental custody.

A “taking” from custody “connotes a substantial interference with parental control.” Toll, Pennsylvania Crimes Code Annotated, § 2904, at 348. Although no case has assigned a specific definition to “taking,” it appears that an affirmative physical removal of the child is necessary. See, e.g., Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (paternal grandparents removed children from mother while aware that she had lawful custody), alloc. denied, 520 Pa. 604, 553 A.2d 967 (1988); Commonwealth v. Johnson, 263 Pa.Super. 512, 398 A.2d 694 (1979) (defendant convicted of both kidnapping and interference with custody of children for unlawfully taking child under fourteen years old); Commonwealth v. Thrush, 23 Pa. D. & C. 3d 302 (Cumberland County 1980) (uncle removed child from school without reason). Similarly, “enticing” has been defined as “[t]o wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax or seduce.” Commonwealth v. Cowan, 9 Pa. D. & C. 3d 582, 585 (Warren County 1978) (quoting Black’s Law Dictionary 626 (4th ed.)). Finally, “it is the interruption of lawful custody, and not merely the ‘taking’, [sic] that constitutes the statutory offense.” Commonwealth v. Stewart, 375 Pa.Super. at 593, 544 A.2d at 1388.

In the instant case, the Commonwealth presented absolutely no evidence that appellant took or enticed any of the minor children, nor did it show that she substantially interfered with the parents’ interest in their children. The Commonwealth’s sole eyewitness testified that the children were working for the four individuals conducting the drug-selling operation. N.T., May 9, 1990, at 12. He testified that appellant was not involved with the care or custody of the three boys. N.T., May 9, 1990, at 19. He also testified that the boys were not threatened or coerced into staying at appellant’s apartment. N.T., May 19, 1990, at 32-33. Moreover, the testimony of three detectives established only that there was a drug-selling operation being conducted at appellant’s apartment — there was no testimony that the surviving boy had implicated appellant of taking or enticing him away from his parents. Finally, the Commonwealth presented no evidence to show who had lawful custody of these boys, or of any interference with such custody. Hence, the Commonwealth utterly failed to carry its burden with respect to two elements of this offense. Consequently, there was insufficient evidence for a fact-finder to determine that appellant was guilty.

Appellant next contends that there was insufficient evidence to support the conviction for conspiracy to interfere with custody of children. Section 903 of the Pennsylvania Crimes Code provides, in relevant part:

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
(e) Overt act. — No person may be convicted of conspiracy to commit a crime unless an overt act in pursuant of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

18 Pa.C.S.A. § 903(a), (e).

Again viewing the evidence in a light most favorable to the Commonwealth as the verdict winner, we are constrained to agree that there was insufficient evidence from which a fact-finder could determine that appellant was guilty of conspiracy. The Commonwealth presented no evidence of an agreement between appellant and the individuals who were using the minors to sell drugs. In fact, the testimony revealed that appellant spent much of her time in the back room, smoking crack cocaine. The evidence showed, at best, that appellant interacted with the boys in a few instances. This does not prove, even circumstantially, that she was in agreement with the drug dealers to interfere with the boys’ parental custody.

Moreover, the Commonwealth did not produce any evidence to prove the overt act that appellant was accused of doing in furtherance of the conspiracy. The bill of information indicated that appellant’s overt act was threatening the minor boys. Again, no testimony was presented that appellant ever threatened the boys. Although we strongly condemn appellant’s involvement in the instant events, and recognize the sordid nature of the circumstances that led to the murder of two young boys, we cannot say that there was any evidence, much less sufficient evidence, to support the instant convictions. Thus, we must reverse the judgment and vacate the sentence.

In light of our disposition of the sufficiency claims, it is not necessary for us to reach appellant’s claim that her post-arrest statement was improperly admitted. For the foregoing reasons, we vacate the judgment of sentence and order appellant discharged.

Judgment of sentence vacated; appellant discharged.

      . The Commonwealth presented the testimony of four witnesses, only one of which was an eyewitness to the events surrounding appellant’s conviction.

      . We note that the instant sentence was imposed consecutive to a nine-to-twenty-three-month term of incarceration imposed in a separate case. We do not order appellant discharged as to that separate sentence.


author: WIEAND, Judge:

text:
    599 A.2d 1332
    Linda FRYCKLUND and Mark Frycklund, her husband, Appellants, v. Michelle Dellice WAY, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 20, 1991.
    Filed Nov. 7, 1991.
    Reargument Denied Jan. 17, 1992.

      Gregory A. Olson, Asst. Dist. Atty., Indiana, for appellants.
    Paul A. Bell, II, Indiana, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

In this action, brought in Indiana County to recover damages for personal injuries sustained in an automobile accident, the trial court dismissed the action after finding that attempted service on the defendant in Philadelphia had been improper. After review, we conclude that the trial court did not err in finding that the summons had been improperly served. It was error, however, to dismiss the action. A more appropriate remedy would have been to set aside the service.

Linda and Mark Frycklund commenced their action against Michelle Dellice Way by filing a praecipe for writ of summons in Indiana County on September 18, 1987. The writ was forwarded to the Sheriff of Philadelphia County, who was duly deputized to make service on the named defendant. This service was made at 1526 North Peach Street, Philadelphia, by handing a copy of the writ to Suzette Way, the defendant’s mother, on October 9, 1987. A copy of the complaint was later sent to the same address in Philadelphia. Michelle Way filed preliminary objections alleging defective service because she did not reside at the Peach Street address. Following an evidentiary hearing, the trial court found that the defendant had moved from her mother’s home following the accident which was the subject of the action and prior to attempted service of the writ of summons. Therefore, the court sustained defendant’s preliminary objections and dismissed the complaint. The plaintiffs appealed.

The pertinent rule of procedure is Pa.R.C.P. 402(a)(2)(i), which provides as follows:

(a) Original process may be served
(2) by handing a copy
(i) at the residence of the defendant to an adult member of the family with whom he resides____

Pa.R.C.P. 402(a)(2)(i) (emphasis added).

When there is a dispute as to whether a given place is a residence of the defendant at which service can be made, the trial court may hold a hearing to determine the disputed facts, and a reviewing court will be bound by its findings if they are supported by competent evidence. Warren v. Williams, 370 Pa. 380, 88 A.2d 406 (1952).

In the instant case, the evidence supports the trial court’s finding that when service was attempted by the Sheriff of Philadelphia, Michelle Way no longer resided with her mother. The uncontradicted evidence was that she had entered a lease for an apartment at A-16 Weymouth Hall Apartments, 6310 Sherwood Road, Philadelphia, on August 1, 1986, to which all her belongings had been moved and where she had resided for almost a year. In June, 1987, she moved to 135 North Farson Street, Philadelphia. This was verified by W-2 forms from her place of employment. Finally, on September 12, 1987, she had signed a lease for an apartment at 4730 Hazel Avenue for a term to expire on August 31, 1988. This address was verified by telephone, electric and gas bills, as well as by a 1987 W-2 form identifying Way’s Hazel Avenue address. This evidence provides full support for the trial court’s finding that the appellee-defendant did not reside at 1526 Peach Street on October 9, 1987, the date of attempted service.

Appellants argue that they acted in good faith to effect service on the appellee-defendant according to the rules and did not attempt to stall in its tracks the action which they had commenced. They also suggest that the appellee-defendant promptly learned of the action and was not prejudiced by the defect in service. They contend, therefore, that Pa.R.C.P. 126 should be applied, and any procedural defect should be ignored. We reject this argument.

In the first place, the Supreme Court’s decision in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), upon which appellants rely, pertained to the effectiveness of an unserved writ of summons to toll the statute of limitations. It does not stand for the proposition that invalid service becomes valid whenever a serving party acts in good faith.

The rules of procedure, it is true, are to be “liberally construed to secure the just, speedy and inexpensive determination” of all applicable proceedings, and courts “may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. 126. However, in the context of service of process, the rules “must be strictly followed, and jurisdiction of the court over the person of the defendant is dependent upon proper service having been made.” Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 127, 221 A.2d 185, 187 (1966). Where a court lacks jurisdiction to determine the outcome of a cause of action, a court cannot ignore such a defect under Pa.R.C.P. 126. Sklaroff v. Weiner, 204 Pa.Super. 273, 203 A.2d 366 (1964). Improper service, therefore, is not merely a procedural defect which can be ignored when the defendant, by whatever means, becomes aware that an action has been commenced against him or her.

“The rules relating to service of process must be strictly followed, and jurisdiction of the court over the person of the defendant is dependent upon proper service having been made.” Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 127, 221 A.2d 185, 187 (1966). See also, Cassidy v. Keystone Insurance Co., 322 Pa.Super. 168, 469 A.2d 236 (1983). If service is not properly made, in the absence of waiver of an objection to invalid service, it is irrelevant if the defendant subsequently learns, as in the instant case, that the sheriff left a copy of the complaint at a location that was not the defendant’s “office” or “usual place of business.”

Martin v. Gerner, 332 Pa.Super. 507, 518-519, 481 A.2d 903, 909 (1984).

The decision in Leidich v. Franklin, 394 Pa.Super. 302, 575 A.2d 914 (1990), does not require that we ignore the defect in service in the instant case. In Leidich, the trial court had entered judgment on the pleadings in favor of the defendant on grounds that the action was barred by the statute of limitations. The issue requiring review was whether a defective initial service of the writ of summons was effective to toll the statute of limitations where the defective service had been corrected by proper service effected after the statute of limitations had run. The Court did not ignore the initial defective service. Indeed, everyone agreed that it had been inadequate to confer jurisdiction upon the court to hear the dispute. What the Court did hold was that under the peculiar circumstances of that case, the plaintiffs had made a good faith effort to notify the defendant of the action and had not engaged in a course of conduct calculated to stall the action in its tracks. Therefore, the Court concluded, the initial issuance of the summons, even though the summons had been defectively served, was sufficient to toll the statute of limitations and preserve the action.

In the instant case, the trial court correctly held that service of the writ of summons on Michelle Way had been defective and failed to perfect the court’s jurisdiction over the person of the appellee-defendant. However, when the court sustained appellee’s preliminary objections to the court’s jurisdiction, it should merely have set aside the service. Instead, it went further and dismissed the action. This it should not have done. See: Nicolosi v, Fittin, 434 Pa. 133, 252 A.2d 700 (1969). Cf. Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967).

It must be conceded that the Superior Court, on at least one occasion, affirmed a trial court order which had dismissed an action because service of initial process was defective. See: Vogel v. Kutz, 348 Pa.Super. 133, 501 A.2d 683 (1985). However, the nature of the relief to be given where service of initial process had been defective was not the issue which the Court was there being asked to decide. Where service of process is defective, the Supreme Court has held, the remedy is to set aside the service. The action, however, remains; and, if plaintiff can properly bring defendant on the record, the original action may be pursued. Nicolosi v. Fittin, supra 434 Pa. at 135-136, 252 A.2d at 701.

The order dismissing the action is reversed. The trial court’s determination that service on appellee was defective, however, is affirmed, and such service is set aside.


author:
TAMILIA, Judge:
      MONTEMURO, Judge,

text:
    599 A.2d 1335
    COMMONWEALTH of Pennsylvania v. David ELLIOTT, Appellant.
    Superior Court of Pennsylvania.
    Argued July 31, 1991.
    Filed Nov. 7, 1991.

      Carole Kafrissen, Philadelphia, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for the Com., appellee.
    Before MONTEMURO, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

Appellant, David Elliott, takes this appeal from his summary conviction for underage drinking, following a trial de novo before the Honorable John J. Rufe of the Court of Common Pleas of Bucks County. In this appeal, appellant raises several issues concerning the sufficiency of the evidence to find appellant guilty of underage drinking. In order to review a claim the evidence introduced by the Commonwealth was insufficient to prove appellant’s guilt beyond a reasonable doubt, we must accept all evidence and all reasonable inferences therefrom, upon which the fact finder could have based the verdict, in order to determine whether the Commonwealth’s evidence was legally sufficient to support the verdict. Only where the evidence, when so viewed, is insufficient to establish guilt beyond a reasonable doubt as to the crimes charged is relief granted. Commonwealth v. Cody, 401 Pa.Super. 85, 584 A.2d 992 (1991).

Viewed in this light, the evidence establishes that shortly after midnight on February 10, 1990, Officer Donald Schwab of the Bensalem Township Police Department arrived at the scene of a two-car automobile accident. At that time, appellant identified himself to Officer Schwab as the driver of one of the vehicles, producing a vehicle registration and a driver’s license indicating his date of birth as March 10, 1973. Officer Schwab detected the odor of an alcoholic beverage on appellant’s breath and gave him a roadside prearrest breath test, which resulted in a reading of .04 per cent blood alcohol content (BAC). Appellant was taken into custody and transported to police headquarters, where, with appellant’s consent, an Intoximeter 3000 breath test was administered twice to appellant, with both tests resulting in a BAC reading of .04 per cent. Following this finding, a citation was issued to appellant charging him with underage drinking. Appellant stipulated at trial to the calibration of the Intoximeter 3000 and the accuracy of the results derived therefrom.

Appellant now argues the evidence was insufficient to sustain a conviction for underage drinking because a summary offense such as underage drinking must be committed in the presence of a police officer, circumstances not present in this case. We do not agree.

The section of the Crimes Code under which appellant was charged states, in pertinent part: “A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages____” 18 Pa.C.S. § 6308.

An Act of Assembly which imposes penal sanctions for violations of its provisions must be strictly construed. 1 Pa.C.S. § 1928; Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). “However, strict construction does not require that the words of a criminal statute be given their narrowest meaning or that the legislature’s evident intent be disregarded.” Commonwealth v. Gordon, 511 Pa. 481, 487, 515 A.2d 558, 561 (1986). In attempting to ascertain the meaning of a statute we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988). We are to presume the legislature did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989).

For his part, appellant relies upon Commonwealth v. Pincavitch, 206 Pa.Super. 539, 214 A.2d 280 (1965), a case which applied the precursor of section 6308, 18 P.S. § 4675.1 (repealed). In Pincavitch, this Court found “no authority that justifies an arrest without a warrant for a ... summary offense committed beyond the presence of the arresting officer in the absence of a statute giving that right.” Id., 206 Pa.Superior Ct. at 544, 214 A.2d at 282 (emphasis added). Subsequent to Pincavitch, however, the legislature enacted the following statute:

§ 8952. Primary municipal police jurisdiction
Any duly employed municipal police officer shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office anywhere within his primary jurisdiction as to:
(1) Any offense which the officer views or otherwise has probable cause to believe was committed within his jurisdiction.
(2) Any other event that occurs within his primary jurisdiction and which reasonably requires action on the part of the police in order to preserve, protect or defend persons or property or to otherwise maintain the peace and dignity of this Commonwealth.

42 Pa.C.S. § 8952 (emphasis added), 1982, June 15, P.L. 512, No. 141, § 4, effective in 60 days. Appellant does not dispute Bensalem Township is a municipality or that Officer Schwab was a duly employed municipal police officer. Clearly, then, Pincavitch offers no guidance on this issue, and instead section 8952 controls. Further, it does not require any elaborate judicial interpretation of section 8952 to determine the inclusive language of the statute allows a municipal police officer to perform his duties with regard to any offense committed within his jurisdiction, be it a felony, misdemeanor or summary offense. This authority is not limited to offenses viewed by the officer but includes those offenses which the officer has probable cause to believe were committed within his jurisdiction. 42 Pa.C.S. § 8952(1). Were such not the case, the practical consequences would be that police officers often would be unable to issue citations for summary offenses otherwise established by the evidence at hand merely because they were called to the scene after the violations occurred. It is unquestionably the legislature’s intent to establish a probable cause standard as a means of defining the bounds of police authority in arresting or citing an actor for a summary offense. The Comment to Pa.R.Crim.P. 55, Issuance of Citation, states:

A law enforcement officer may issue a citation based upon information that the defendant has committed a summary violation, which information may be received from a personal observation of the commission of the offense; a witness; another police officer; investigation; or speed-timing equipment, including radar.

(Emphasis added.) Comments to Rule 70, Arrest Without Warrant, provide as follows:

It is intended that these proceedings will be instituted by arrest only in exceptional circumstances such as those involving violence, or the imminent threat of violence, or those involving danger that the defendant will flee.
The Vehicle Code provides the procedures for arresting a defendant without a warrant for a summary offense under that Code.

Therefore, having made the determination Officer Schwab had the authority to cite appellant for a summary offense not committed in the officer’s presence, we only need determine whether the evidence was sufficient to sustain a finding of guilt.

The Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence, so long as the inferred facts flow, beyond a reasonable doubt, from the proven facts to establish the accused’s guilt or elements of the crime. Commonwealth v. Ramos, 392 Pa.Super. 583, 573 A.2d 1027 (1990).

Although appellant argues the Commonwealth was required to offer formal proof appellant was under the age of 21 at the time of the offense, we find no support for this position. Officer Schwab presented uncontradicted testimony that the driver’s license produced by appellant at the scene of the accident indicated his date of birth as March 10, 1973, making him sixteen years of age. We agree with the trial court’s finding that the “mere fact that the Commonwealth failed to present a certified copy of the defendant’s birth certificate or driver’s license does not mean that it has failed to meet its burden.” (Slip Op., Rufe, J., 3/26/91, p. 3.) Nothing in the record refutes the authenticity of the driver’s license or the accuracy of the birthdate. When the Commonwealth presents evidence with adequate probative value to establish the truth of the matter, in the face of the denial of the adequacy of that proof, it becomes a matter for determination by the trial judge, which determination will not be overturned on appeal.

Finally, appellant argues the trial court erred in allowing the admission into evidence of breathalyzer results, which are of no relevance to sustain a charge of underage drinking and are only admissible to prove a charge under the Vehicle Code. The Vehicle Code allows for the admission of blood alcohol tests in “any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action----” 75 Pa.C.S. § 1547(c). While appellant would have the language of section 1547 bar the admission of appellant’s two .04 per cent blood alcohol tests in this case, we find section 1547 far more inclusive. We find the first conjunction “or” used in section 1547(c) to have been used as a function word to indicate an alternative. Summary proceedings, then, are differentiated from criminal proceedings in which the defendant is charged under section 3731, dealing with driving under the influence, and the words of section 1547 are not given their narrowest meaning. We believe such a construction of the language of the statute best comports with the reasonable intent of the legislature and the promotion of justice. 1 Pa.C.S. § 1928, supra. Thus, section 1547 authorizes the admission into evidence the results of a breathalyzer in any proceeding, summary or criminal, which in any way related to the use of alcohol. In addition, a unique aspect of this case is the fact that the appellant is a minor. 18 Pa.C.S. § 6810.4, Restriction of operating privileges, provides:

(a) General rule. — Whenever a person is convicted or is adjudicated delinquent or is admitted to any preadjudication program for a violation of section 6307 (relating to misrepresentation of age to secure liquor or malt or brewed beverages), 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) or 6310.3 (relating to carrying a false identification card), the court, including a court not of record if it is exercising jurisdiction pursuant to 42 Pa. C.S. § 1515(a) (relating to jurisdiction and venue), shall order the operating privilege of the person suspended. A copy of the order shall be transmitted to the Department of Transportation.
(b) Duration of suspension. — When the department suspends the operating privilege of a person under subsection (a), the duration of the suspension shall be as follows:
(1) For a first offense, a period of 90 days from the date of suspension.
(2) For a second offense, a period of one year from the date of suspension.
(3) For a third offense, and any offenses thereafter, a period of two years from the date of suspension. Any multiple sentences imposed shall be served consecutively-
Reinstatement of operating privilege shall be governed by 75 Pa.C.S. § 1545 (relating to restoration of operating privilege).

It necessarily follows that an underage drinking violation and conviction implicates the Motor Vehicle Code requiring suspension of the license, if the defendant has one, and restoration pursuant to the Code. Section 1547, therefore, clearly applies to proceedings and convictions under section 6308.

For the foregoing reasons, we find appellant’s claim without merit. The Commonwealth presented sufficient evidence to sustain appellant’s conviction for the summary offense of underage drinking, and we affirm the judgment of sentence.

Judgment of sentence affirmed.

Concurring and dissenting opinion by MONTEMURO, J.

MONTEMURO, Judge,

concurring and dissenting:

While I have no quarrel with the majority’s conclusion as to the first two issues in this case, I cannot agree that breathalyzer results are admissible into evidence. The Vehicle Code, section § 1547(c), cited in support of admissibility, may well be as inclusive as the Majority would have it, but where no violation under the Code has been charged, its provisions, however broad, are inapplicable. The majority seems to be suggesting that guilt may be proven by implication, as “it necessarily follows that an underage drinking violation and conviction implicates the Motor Vehicle Code.” (Majority Opinion at 1339) If this were so, a juvenile too young to have a driver’s license, or one stopped for pedestrian trespassing, and found to be in the same condition as appellant, could be tested by Intoximeter and expect to have the results used against him at trial under the aegis of the Vehicle Code. I do not believe the statute was intended to have such a lengthy reach, and therefore dissent.

Having said so much, I would also find that in the case at hand introduction of the Intoximeter evidence was harmless error, as the testimony of the arresting officer, that he smelled alcohol on appellant’s breath, would, if believed, be enough to support a finding of underage drinking.

      . 18 Pa.C.S. § 6308.

      . Appellant's citations to Commonwealth v. Pincavitch, 206 Pa.Super. 539, 214 A.2d 280 (1965), and Commonwealth v. Shillingford, 231 Pa.Super. 407, 332 A.2d 824 (1975), are misplaced to the extent that in those cases action was instituted by arrest whereas here, after permissible investigation of DUI charges which includes conducting a breathalyzer test, a citation was issued. There was initial probable cause to take appellant into custody for DUI which is permissible without a warrant under 75 Pa.C.S. § 3731, Driving under the Influence of alcohol or controlled substance.

      . Pennsylvania Rule of Criminal Procedure 70, Part IV. Procedures in Summary Cases When Defendant is Arrested Without Warrant, provides:
      Rule 70. Arrest Without Warrant
      When an arrest without a warrant in a summary case is authorized by law, a police officer who exhibits some sign of authority may institute proceedings by such an arrest.
      Thus, whether this case originated pursuant to arrest without a warrant or citation, the sections of the Motor Vehicle Code and Criminal Code cited above permit such a proceeding. This is also supported by the Rules of Criminal Procedure cited infra.


author:
TAMILIA, Judge:
      DEL SOLE, Judge,

text:
    599 A.2d 1340
    COMMONWEALTH of Pennsylvania, Appellant, v. James C. SMITH.
    Superior Court of Pennsylvania.
    Argued Aug. 28, 1991.
    Filed Nov. 27, 1991.

      Frances Gerson, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Bruce A. Franzel, Philadelphia, for appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

The Commonwealth takes this appeal from the Order of October 25, 1990 granting defendant James C. Smith’s motion for a new trial after the trial court overturned a pretrial Order excluding evidence under the rape shield statute.

Defendant was charged with rape and related offenses for engaging in sexual contact and intercourse with the 13 year old victim. Although the victim testified the sexual contact occurred over a two year period when the victim was between the ages of 11 and 13, defendant was only charged in connection with crimes committed between November, 1988 and December, 1988, when the victim was 13. Defendant had lived with the victim’s mother previously, and the victim and her brother called him “Dad.” The victim’s grandmother allowed the victim’s brother to live with defendant to get him out of their South Philadelphia housing project and into a better school and the victim was also allowed to spend weekends at defendant’s house. It was during these visits defendant began sexually assaulting the victim. Eventually, on December 31, 1988, the victim’s brother, who had become aware of defendant’s actions, through his own observation and what his sister told him, informed his grandmother of what defendant had been doing to the victim. The grandmother called the Department of Human Services (DHS), who notified police. However, because the victim desired to protect defendant, and because other family members and defendant told her not to tell, the victim and her brother did not tell the police defendant had intercourse with her, but only that defendant had oral sex with her. Three weeks later, DHS took the victim to the hospital to be examined and, inexplicably, a Johnson Rape Kit test was taken, even though many weeks had passed since the last sexual assault. The test was positive for the presence of sperm. On the way home from the hospital, the victim revealed to her grandmother for the first time defendant had had vaginal and anal intercourse with her on numerous occasions, as well as performing oral sex on her.

At the preliminary hearing, the victim testified as to the extent of defendant’s assaults, including the acts of intercourse. Prior to trial, the Commonwealth presented before the Honorable Jane C. Greenspan a motion in limine to preclude defendant’s introduction of the rape kit results. Defendant argued the results of the rape kit test were relevant to the issues of the victim’s unrelated sexual activity and to attack her credibility because of her denials, prior to the preliminary hearing, that she and defendant had had intercourse. The motion court ruled evidence of the victim’s later sexual contact with another was not directly relevant to whether defendant had had intercourse with her in the time frame alleged, and defendant had ample means to discredit the victim over the discrepancies between her initial allegations and her subsequent testimony without resorting to the rape kit results. Based on the rape shield statute, therefore, the motion court barred introduction of the evidence. Defendant proceeded to a nonjury trial before the Honorable Arthur S. Kafrissen, Municipal Court judge sitting by designation in the Court of Common Pleas, and was found guilty of statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure and corruption of a minor, but not guilty of rape and simple assault.

Following briefs and oral argument on defendant’s post-verdict motions for a new trial and in arrest of judgment, the trial court denied defendant’s motion in arrest of judgment but granted the motion for a new trial on the basis that the rape kit test results were relevant and admissible for the limited purpose of explaining the victim’s motive in naming defendant and did not in any way embarrass the victim or tend to make the rape shield law less effective (N.T., 10/25/90, pp. 5-6). This appeal followed.

On appeal, the Commonwealth argues separate procedural, substantive and policy issues in which it contends the trial court erred and which require reversal by this Court. In effect, this Court is again called upon to determine the scope of Pennsylvania’s rape shield law. The statute provides:

§ 3104. Evidence of victim’s sexual conduct
(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

18 Pa.C.S. § 3104.

At common law, and to some extent even today, a rape victim often suffered secondary abuse at the hands of the judicial system through aggressive defense counsel who “essentially put the victim on trial.” In response to these abuses, the federal government and the states enacted rape shield laws which “were intended to end the abuses ... by limiting the harassing and embarrassing inquires [sic] of defense counsel into irrelevant prior sexual conduct of sexual assault complainants.” Commonwealth v. Nieves, 399 Pa.Super. 277, 286, 582 A.2d 341, 346 (1990) (citations omitted). The rape shield statute “is a bar to admission of testimony of prior sexual conduct involving a victim, whether it is consensual or the result of nonconsensual or assaultive behavior, unless it has probative value which is exculpatory to the defendant.” Commonwealth v. Johnson, 389 Pa.Super. 184, 195-196, 566 A.2d 1197, 1202 (1989), allocatur granted, 525 Pa. 643, 581 A.2d 569 (1990) (emphasis added). To that end, limited exceptions to the broad exclusion of the rape shield law have arisen to demonstrate the rape shield law “will bow to a defendant’s right to confront and cross-examine when a specific proffer demonstrates that the proposed inquiry is intended to elicit relevant evidence, which is more probative than prejudicial, and which is not cumulative of other evidence available without encroaching upon Rape Shield law protections.” Nieves, supra at 288, 582 A.2d at 347; see Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983); Commonwealth v. Lyons, 364 Pa.Super. 620, 528 A.2d 975 (1987); Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985). However, in order for a defendant to invoke one of the limited exceptions to the broad exclusions of the shield law, an adequate, specific offer of proof must be made and the absence thereof is fatal to a defendant’s challenge to the rape shield law. Nieves, supra; see Commonwealth v. Troy, 381 Pa.Super. 326, 553 A.2d 992 (1989).

In this case, the Commonwealth claims defendant’s offer of proof was inadequate to meet the requirements of Nieves and Troy for relevance, probativeness and necessity. During the hearing on the Commonwealth’s motion in limine, the following exchange occurred between defense counsel and the court in regard to the admission of the rape kit results:

MR. FRANZEL [defense counsel]: On the issue of credibility and the relevance of this test to credibility, it goes beyond that. The Complainant consistently has maintained to the police, in the police reports, that she never had intercourse with the Defendant.
At the preliminary hearing, for the first time, she said that there was intercourse with the Defendant. In fact, in the hospital reports—
THE COURT: Why was this a rape, if she continually said that she didn’t have intercourse with the Defendant? Why did they arrest him if—
MR. FRANZEL: The charges are Indecent Assault and Involuntary Deviate Sexual Intercourse.
On the hospital records, it says, “Denies any intercourse.” So, it goes to the credibility of this witness. I think that all of this is part of the whole factual underpin-^ ning of the case, touching on the credibility of this witness.
THE COURT: Any of that evidence goes to the credibility of the complaining witness, but there is a protection, under the Rape Shield Law, that overrides that, which has been upheld time and time again.
I need to see the difference here____

(N.T., 11/2/89, pp. 6-7.)

Defendant maintains this exchange was sufficient to breach the rape shield protection, even though defendant did not then, or at any other time in the hearing, make the specific argument he now makes, namely, that the victim never accused defendant of raping her prior to learning the results of the rape kit, but did so later to avoid her grandmother’s possible anger upon discovering the victim had had sexual intercourse with someone. In support of this argument, defendant relied upon this Court’s decision in Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), a rationale adopted by the trial court in awarding defendant a new trial. We find merit in the Commonwealth’s claim the trial court erred in this regard.

In Black, the defendant’s daughter accused him of rape. The defendant then offered testimony of his daughter’s consensual sexual relationship with her brother, who had been thrown out of the family home shortly before the daughter brought the charges against the defendant. The defendant offered this testimony to demonstrate a specific motive or bias for the daughter to make false allegations. This Court found the rape shield law may not be used to exclude relevant evidence attacking credibility or showing a witness’ bias. Id., 337 Pa.Superior Ct. at 557, 487 A.2d at 401. The holding in Black, however, should be viewed quite narrowly, as later cases have applied it “only where the victim’s credibility was allegedly affected by bias against or hostility toward the defendant, or the victim had a motive to seek retribution.” Commonwealth v. Boyles, 407 Pa.Super. 343, 356, 595 A.2d 1180, 1186 (1991) (emphasis added).

In this case, defendant, at the motion in limine, only made a general attack on the victim’s credibility in not alleging intercourse with defendant earlier, which, as the hearing court noted correctly, could be made frequently were it not for the statutory protection of the shield law. Defendant only raised the issue of bias as it affected the victim’s credibility upon the conclusion of the trial. For these reasons, we find defendant’s claim procedurally defective, and we reverse the Order of the trial court granting a new trial. Were the facts of this case different, our discussion would cease at this point. In the interest of public policy, however, we also address the substantive claims raised by the Commonwealth, inasmuch as they involve other important issues within the ambit of the rape shield law.

As discussed infra, evidence sought to be admitted over the broad exclusion of the rape shield law must be analyzed in light of three factors: (1) its relevance to attack credibility or show bias; (2) its probative value versus its prejudicial effect; and (3) whether alternative means exist to attack credibility or show bias. Black, supra; Nieves, supra. Evidence is relevant if it “logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 108 (1989).

We find the evidence sought to be admitted in this case of dubious relevance to attack the victim’s credibility because we are unable to discern from the record before us any bias against or hostility toward the defendant on the part of the victim, as required to invoke the narrow holding of Black and skirt the rape shield law. Boyles, supra. To the contrary, the record indicates a close, almost paternal relationship between the victim and defendant prior to the assaults. The victim and her brother called defendant “Dad” and the victim was encouraged to visit him in order to get away from her housing project.

Defendant claims the victim, in fear of her grandmother’s anger at learning that the test results were positive for the presence of sperm in the victim’s vagina, and the grandmother’s threat to place her in a “home” for being “bad,” had reason to fabricate charges of sexual intercourse with defendant, rather than admit to having had consensual sexual intercourse with a third person. This argument fails for several reasons. First, we find no evidence the victim feared her grandmother’s reaction to the extent she would allege rape. In addition, although the victim testified her grandmother warned her if she wasn’t “good,” she would place the victim in a shelter, the victim emphasized these warnings stemmed from the victim playing hookey from school and not from the sexual assaults (N.T., 11/2/89, pp. 66-70). Nor do we find the test results themselves dispositive in providing a motive for the victim to fabricate, because, as mentioned above (footnote 5), it is not at all clear upon what basis the parties were able to agree the sperm found was not defendant’s. More importantly, whether the victim or her grandmother knew of the results, we do not find sufficient bias to make the test results relevant and admissible. It is not unlikely that the child felt a degree of guilt in consenting to vaginal intercourse that was not present in acknowledging oral intercourse, and she admitted its occurrence with the appellant only upon being confronted with proof of vaginal intercourse following the test. The fact she did not accuse appellant of this action is more indicative of a lack of bias against him as she had the opportunity to name him as the perpetrator but did not do so.

As to the second factor in Black, we find little probative value in the test results, and, therefore, the evidence clearly is outweighed by its prejudicial effect.

[Tjhere is ... a persistent belief among some people that a woman or girl would not be assaulted unless she provoked the assault by acting promiscuously or deliberately placed herself in a situation where an assault could be anticipated. This is particularly so when the parties are known to each other. We have not yet completely disabused the public mind of the perception that an assault victim is somehow to blame for the assault, and this is even more so with child victims who, due to naivete or poor supervision, find themselves unprotected and dangerously vulnerable.

Johnson, supra, 389 Pa.Superior Ct. at 188, 566 A.2d at 1199.

Finally, we find defendant had ample alternative means to attack the victim’s credibility and develop his claim of bias without the Johnson Rape Kit results. Defendant was able to cross-examine the victim and attack her credibility through the use of her prior inconsistent statements to the police, her brother and her grandmother; through questioning directed at the suddenness of her allegation of rape after she went to the hospital; and through the use of the other hospital records that include her denial of sexual intercourse.

Were this Court to uphold the trial court’s Order, replete as it is with inferences the victim falsely accused defendant of rape rather than face the opprobrium and ire of her grandmother for having had consensual sexual intercourse, we would effectively remove children from the protections of the rape shield law by finding child victims likely to cry “rape” when confronted by evidence of sexual activity, rather than deal with the possible anger of parents or guardians. We find no authority to allow such a weakening of the rape shield law. After careful review of the record and analysis of the rape shield law and cases interpreting it, we conclude the facts in this case do not warrant a deviation from the application of the law as the issue reduces itself simply to a consideration of whether other sexual conduct following the alleged rape, unconnected with appellant, is admissible as evidence. We conclude it is not. Order reversed. Case remanded for sentencing. Jurisdiction relinquished.

DEL SOLE, J., dissents.

DEL SOLE, Judge,

dissenting:

I respectfully dissent from the majority’s opinion reversing the trial court’s order for a new trial and remanding for sentencing because I do not believe that the offer of proof made in the Motion in Limine was procedurally defective, and because I believe a hearing is required to determine the relevancy of the Johnson Rape Kit test results.

The Rape-Shield Law does not exclude relevant evidence showing the witness’ motive or bias, or which attacks the witness’ credibility. Commonwealth v. Poindexter, 372 Pa.Super. 566, 539 A.2d 1341 (1988), citing, Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985) (en banc). In Commonwealth v. Marjorana, 503 Pa. 602, 470 A.2d 80 (1983), and Commonwealth v. Lyons, 364 Pa.Super. 620, 528 A.2d 975 (1987), we found that the court erred in excluding evidence of the complainant’s sexual relations with another person. We held that this evidence was relevant to explain the presence of semen and sperm found in the complainant, (Marjorana) or blood on the child’s panties, (Lyons), and therefore, despite the protections of the Rape Shield Law, this evidence of prior sexual contact with a third party should have been admitted to prove an alternative cause or explanation for the presence of the physical evidence. These cases show that, contrary to the majority’s holding, it is not only when the victim’s credibility was allegedly affected by bias against or hostility toward the defendant that evidence of the witness’ sexual conduct may be admitted over the protections of the Rape Shield Law.

Here, the defense argued during the Motion in Limine that it was not until the Johnson Rape Kit test had been performed that the complaining witness contended that she had had sexual intercourse with the defendant. She had consistently maintained, prior to that time, that she had not had intercourse with him. (N.T. at 6, 11/2/89). This offer of proof suggested that the results of the test were the motive for her changed allegations, and evidence of this motive should have been admitted as it affected her credibility. Thus, I would find that the offer of proof was sufficiently specific relating to motive and credibility, and there was, therefore, no procedural defect in the proffer.

According to the reasoning found in the offer of proof, the test results are only relevant if they establish a motive for the complainant to lie. Defendant alleged that the complainant fabricated this new charge because she was afraid of what would happen if her grandmother knew she was having sexual relations with another person. He argues that she changed her story and claimed she had engaged in intercourse with defendant to provide an alternative explanation for the test results.

However, I believe we have insufficient information at this point to establish that the test results provide a possible explanation or motive for the change in her story. The Commonwealth agreed that the sperm that was in the complainant was not the sperm of the defendant. In fact, the complainant said that she did not have contact with defendant or even see him for well over a month prior to the administration of the Johnson Rape Kit. (N.T. at 3, 11/2/89)

This brings up the question of why the test was administered in the first place; medical professionals would certainly know that sperm will not be detected a month after intercourse has occurred, if this were indeed the last time there was any contact with defendant. But more importantly, even if the test was merely inadvertently administered, through bureaucratic error, we do not know if the complainant or her grandmother knew of the test results, which might cause her to fabricate the story.

We also do not know why or on what basis the Commonwealth agreed that it was not the defendant’s sperm. Was a DNA analysis performed on the sperm, proving that it was not defendant’s sperm, or are we simply assuming that the sperm was not defendant’s without any factual basis for that assumption, apart from the Commonwealth’s concession?

Moreover, we do not know whether the complainant or her grandmother knew or claimed to know, prior to changing her story, that the sperm found in complainant was not the defendant’s sperm. If she and her grandmother knew or claimed to know it was not the defendant’s sperm, then they knew that complainant was having sexual relations with another person. Then, by what logic would she believe that an accusation against the defendant would somehow help her to avoid the consequences of her grandmother’s disapproval?

Given all these unanswered questions I do not believe that at this time the trial court can decide that the evidence of the test results is admissible as probative of the motive for the alleged fabrication. These areas need to be explored, and I would therefore remand for an in camera hearing similarly ordered in Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), and Commonwealth v. Johnson, 389 Pa.Super. 184, 566 A.2d 1197 (1989).

We stated in Black, supra., at 337 Pa.Super. at 557, 487 A.2d 396:

While we hold that Pennsylvania’s Rape Shield Law may not be used to exclude relevant evidence showing witness’ bias or attacking credibility, we do not hold that material evidence is necessarily admissible. Although logically relevant, evidence tending to show the victim’s prejudice or lack of credibility may be excluded if ‘it would so inflame the minds of the jurors that its probative value is outweighed by unfair prejudice.’ [citations omitted] This balancing determination between probative value and unfair prejudice should be made by the trial court at an in camera hearing ... At this hearing, the trial court should determine the following as a matter of record to be preserved for appellate review: (1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive or to challenge credibility.

Therefore, I would remand for an in camera hearing, first to resolve these questions, and then to do the necessary balancing mandated by Black.

      . 18 Pa.C.S. § 3104.

      . Id., § 3121.

      . Statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure, simple assault and corruption of a minor.

      . Although no reason was given, the Commonwealth is of the opinion the test was performed mistakenly by the examining physician, who thought the victim was there as the result of a rape that had just occurred. (Brief of Appellant, p. 5; N.T. 11/2/89, pp. 5-6.)

      . Although it was agreed by the parties the sperm found was not defendant's, it is not clear whether this agreement was derived from the length of time since defendant’s last assault, or, as stated by the Commonwealth, from the results of a subsequent analysis of the sperm sample. Further, it is also unclear who was aware of these results, especially the victim or her grandmother.


author: PER CURIAM ORDER:

text:
    599 A.2d 1346
    COMMONWEALTH of Pennsylvania, Appellant, v. Gary Lee FRANKENFIELD, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. John F. DREHER, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 19, 1991.
    Filed Nov. 12, 1991.

      John F. Spirk, Jr., Asst. Dist. Atty., Easton, for Com., appellant (at 1282 & 1283).
    William F. Zaun, Public Defender, Bethlehem, for appellee (at 1282).
    Leonard M. Mellon, Easton, for appellee (at 1283).
    Before CAVANAUGH, KELLY and MONTGOMERY, JJ.
   PER CURIAM ORDER:

This is an appeal by the Commonwealth from an order of the trial court granting appellees’ motion to suppress physical evidence. In order to invoke this Court’s jurisdiction to hear an appeal from a suppression order, the Commonwealth is required to certify in good faith that the suppression order substantially handicaps or terminates the prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The Commonwealth’s failure to comply with this requirement subjects the appeal to being quashed. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988); Commonwealth v. Slovikosky, 374 Pa.Super. 441, 543 A.2d 553 (1988).

Review of the record in the instant case, along with the Commonwealth’s brief, fails to disclose a good faith certification that the order in question either terminates or substantially handicaps the prosecution. Previously, this Court has observed that the dismissal of appeals based upon the procedural defaults of counsel improperly places the burden of these errors on a non-offending party, powerless to correct such error. See Commonwealth v. Ciotto, 382 Pa.Super. 458, 461, n. 1, 555 A.2d 930, 931, n. 1 (1989); Commonwealth v. Osteen, 381 Pa.Super. 120, 125, 552 A.2d 1124, 1126 (1989). Additionally, this Court has, in the past, ordered parties to correct procedural defects in an appeal rather than imposing a more severe sanction, ie. quashal. See e.g. Commonwealth v. Ely, 381 Pa.Super. 510, 554 A.2d 118 (1988) (rather than quash the appeal because of a defective brief, new counsel will be appointed and directed to file a brief in conformity with the rules); Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987) (counsel directed to file a Pa.R.A.P. 2119(f) statement missing from the brief filed on appeal). Moreover, in Commonwealth v. Carson, 510 Pa. 568, 510 A.2d 1233 (1986), our Supreme Court observed,

The failure of a party to observe the orders of a court may result in a loss to a party in a civil action, because there the loss falls upon private interests and those who invoke the power of a court must be obedient to its orders or lose its powers to serve their purposes. Criminal cases involve issues of public justice; issues that transcend the immediate parties. In criminal cases, sanction may be imposed upon individuals, including counsel for either side; sanctions that vindicate the authority of the court to maintain its schedule and enforce its order.

Id., 510 Pa. at 572, 510 A.2d at 1234 (emphasis added); see also Commonwealth v. DeMarco, 396 Pa.Super. 357, 578 A.2d 942 (1990).

In the instant case, we do not believe the interests of public justice would be best served by penalizing the citizens of this Commonwealth for the district attorney’s failure to comply with an essentially pro forma requirement. This omission may be properly corrected on appeal. Accordingly, we enter the following order:

ORDER

And NOW, this 12th day of November, 1991, the Commonwealth is ordered to file with this Court, within fifteen (15) days a certification explaining that the suppression order substantially handicaps or will in fact terminate the prosecution. Failure to comply with this order will result in the instant appeal being quashed by this Court.

Panel Jurisdiction is retained.