author: HESTER, Judge:

text:
    499 A.2d 331
    COMMONWEALTH of Pennsylvania v. Anthony HARPER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 21, 1985.
    Filed Sept. 18, 1985.

      Leslie J. Carson, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge:

In this appeal from denial of Post Conviction Hearing Act [PCHA] relief, appellant alleges numerous instances of ineffectiveness of his trial counsel and the illegality of his separate sentences for first degree murder and robbery. Finding neither ineffectiveness of counsel nor a double jeopardy violation, we affirm.

The material facts are as follows.

The victim, Matthew Boylan, was robbed and fatally wounded while working in his neighborhood grocery store at approximately 11:35 A.M. on September 13, 1975. Detective Gerrard, the supervising detective, arrived at the victim’s store around noon. Throughout the afternoon, he and fellow police officers interviewed individuals who were at or near the scene of the crime. Two eyewitnesses told Gerrard they observed a black male enter the victim’s store; that they heard a shot; that they observed the same male exit the store; that he was about five feet eight inches tall, weighed about 250 pounds, and was wearing a gray sweatshirt; that they observed the same male flee on a red ten-speed bicycle which had curled handle bars, reflectors, and a carrier seat; and, that immediately after the black male fled, they entered the store and found the victim lying on the floor.

Another witness, Ronald Pelligrino, informed Gerrard that he was in the victim’s store just prior to the shooting; that, while in the store, he stood next to a black male of approximately the same description supplied by the other two witnesses; that he exited the store and left Boylan alone with the black male; that he went to his home which was located next door to the victim’s store; and that moments later he heard the victim had been shot and returned to the store. Armed with the information supplied by the three witnesses, Gerrard and fellow police officers combed the area in an effort to locate anyone who saw or knew the alleged assailant.

As a result of their investigation, the police interviewed Charles Linton, who was employed at a grocery store located approximately one and one half city blocks from the victim’s store. Linton informed Gerrard that, prior to the robbery and shooting, he conversed with a black male who met the description supplied by the other three witnesses; that this conversation took place outside Linton’s place of employment; that, although he didn’t know his name, the black male had been a customer of the grocery store for approximately two years; and, that, after the brief conversation, this same male pedalled a red ten-speed bicycle in the direction of the victim’s store. About 5:00 P.M., Linton positively identified appellant from approximately one dozen photographs as the black male he conversed with prior to the crime.

At approximately 6:00 P.M., Gerrard and fellow police officers arrived at appellant’s residence. The front door was open and some of the officers entered the home. Immediately upon entering, Gerrard observed a red ten-speed bicycle in the living room. Appellant’s older brother informed Gerrard that appellant was on the second floor. At that time, appellant came down the steps to the living room where he was apprehended. The police arrested appellant and seized the bicycle.

As Gerrard entered the front door of appellant’s residence, another officer who was guarding the rear of the residence observed a .32 caliber automatic pistol tumbling from the roof of a shed located next door. The pistol had been tossed from a window at the rear of the second floor of appellant’s home. The pistol was confiscated by the police and later examined by the Philadelphia Firearms Identification Unit, which determined that a spent shell recovered from Boylan’s store had been fired from this pistol.

After his arrest, appellant was transported to police headquarters where, at approximately 8:10 P.M., he made an inculpatory statement regarding the robbery and fatal shooting.

At trial, appellant relied on an alibi defense, namely, that at the time of the crime, he was at his brother’s place of employment, a gasoline station located approximately four blocks from Boylan’s store. In support of this defense, he presented the testimony of his brother, his brother’s employer, and his father. Appellant also presented character evidence and attacked the voluntariness of his confession through police and medical records which indicated he had been hospitalized from September 15 to September 18, 1975.

Appellant was convicted by a jury and was sentenced to life imprisonment for first degree murder, and to a consecutive sentence for robbery to run concurrently with additional sentences for weapons offenses. Appellant’s trial counsel represented appellant on direct appeal, which resulted in affirmance by the Pennsylvania Supreme Court, Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). .

Represented by new counsel, appellant collaterally attacked the effectiveness of prior counsel before, during and after trial. Following an evidentiary hearing, the PCHA court denied relief. This appeal followed, where appellant has raised, for the first time, the additional claim that his separate sentences for murder and robbery constituted double jeopardy.

Appellant makes the following arguments. He claims that trial counsel, who also represented appellant in his direct appeal, was ineffective in the following respects: 1) he failed to preserve the issue that evidence obtained pursuant to appellant’s illegal warrantless arrest in his home should have been suppressed; 2) he failed to seek suppression of appellant’s confession on the ground that it resulted from an unlawful delay between arrest and preliminary arraignment; 3) he failed to request a line-up and failed to move to suppress identification testimony; 4) he brought to the attention of the jury the fact that appellant was in custody during the trial and manacled when brought to and from the courtroom; 5) he failed to offer in-court testimony of two physicians who examined appellant after his interrogation and would have corroborated his averment of physical coercion; 6) he failed to instruct a defense witness to observe a sequestration order resulting in a prejudicial limitation on the testimony of that witness; 7) he failed to object and move for a mistrial when the district attorney implied that the jury could infer guilt from appellant’s failure to testify; and 8) he failed to elicit testimony by appellant at his suppression hearing that appellant was under the influence of cocaine at the time he confessed. Appellant also argues that his consecutive sentences imposed for murder and robbery constituted double jeopardy. We will consider each allegation.

When reviewing the effectiveness of counsel, we determine first whether the underlying claim has merit. If it does, we then inquire whether counsel’s handling of the matter at issue had some reasonable basis designed to effectuate his or her client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action, nor is counsel ineffective for not taking baseless or meritless action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant. Commonwealth v. Clemmons, 505 Pa. 356, 361-62, 479 A.2d 955, 957-58 (1984); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Garrity, 331 Pa.Super. 475, 480 A.2d 1133 (1984); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984). In light of this standard, we will examine the alleged ineffectiveness of appellant’s trial counsel.

The first alleged dereliction was counsel’s failure to seek suppression of evidence produced by appellant’s warrant-less arrest in his home on September 13, 1975. Appellant relies on the Pennsylvania Supreme Court’s prohibition of warrantless arrests in the home, Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), as well as the United States Supreme Court’s similar prohibition in Pay-ton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Appellant’s counsel had sought to suppress appellant’s confession and other evidence flowing from his arrest, claiming the arrest was illegal due to lack of probable cause. Appellant acknowledges that his 1975 suppression hearing occurred long before either of the cited decisions, so that counsel could not have cited them as authority for the illegality of his arrest. He argues instead that Williams, supra, was decided prior to the date his own direct appeal was finally decided, on July 5, 1979. If, as appellant claims, the Williams rule should apply retroactively to all cases on direct appeal on November 18, 1978, then he would be entitled to suppression of his confession.

We reject appellant’s claim for two reasons. First, the Pennsylvania Supreme Court has held that the warrant requirement established in Williams, supra, was not to be accorded retroactive effect. Commonwealth v. Miller, 490 Pa. 457, 472-73, 417 A.2d 128, 137 (1980), cert, denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Common wealth v. Norris, 498 Pa. 308, 312 n. 1, 446 A.2d 246, 248 n. 1 (1982). The court stated in Miller, supra, that “the Williams rule applies only to arrests made subsequent to the date of the decision, November 18, 1978.” Id. Appellant’s 1975 arrest does not qualify. Second, even if we adopted appellant’s argument that the Williams rule should apply to cases such as his which were still pending on direct appeal when Williams, supra, was decided on November 18, 1978, we would nevertheless reject the allegation that trial counsel was ineffective for failing to predict this change in time to raise the issue at appellant’s suppression hearing in 1975 or at his trial and post-trial proceedings in 1976. Counsel “will not be deemed ineffective because he fails to predict ... or argue all possible future developments in the law.” Commonwealth v. Smith, 317 Pa.Super. 118, 124, 463 A.2d 1113, 1116 (1983). We reject appellant’s first argument.

The second argument alleging ineffective assistance of counsel is likewise without merit. Relying on Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), appellant claims that a ten hour unnecessary delay between his arrest and arraignment requires the suppression of the confession he made during the interim. The record discloses, however, that half of the ten hour delay was to permit appellant to obtain medical treatment at a hospital emergency room and was therefore not unnecessary. More important, appellant made his confession less than two hours after arrival at the police station. We hold that the confession within two hours of arriving at the station was not the product of any later delay in arraignment. The Futch rule, of course, “is subject to the commonsense [sic] caveat that the ‘unnecessary delay’ must have contributed to the securing of the evidence.” Futch, supra, 447 Pa. at 393, 290 A.2d at 419. Counsel was not ineffective for declining to raise this baseless claim.

Appellant next contends that trial counsel was ineffective for failing to insist that two prosecution witnesses participate in a line-up and for failing to move to suppress their identification testimony. Appellant does not, however, explain why a line-up would have been appropriate nor how the witnesses’ identification testimony was tainted. It appears likely, moreover, that a request for a line-up would have bolstered the witnesses’ in-court identifications, to appellant’s detriment. “Trial counsel cannot be deemed ineffective for failing to request a fruitless procedure.” Commonwealth v. Casner, 315 Pa.Super. 12, 22, 461 A.2d 324, 329 (1983).

Appellant also alleges ineffective assistance of counsel for bringing to the attention of the jury the fact that appellant was in custody during trial and manacled when brought to and from the courtroom. Counsel elicited this information during cross-examination of a Commonwealth witness, the father of two teenage witnesses who had testified earlier. Counsel’s cross-examination was an attempt to discredit the young witnesses’ in-court identification by revealing that they had observed appellant in handcuffs outside the courtroom while they waited to testify. We believe this was a not unreasonable trial strategy and reject the argument that it was ineffective assistance.

Appellant next attacks counsel’s failure to offer in-person testimony of two physicians who examined appellant after his interrogation, who allegedly would have corroborated appellant’s averment of physical coercion. Examination of the record indicates that the physicians’ testimony would have been redundant and of little probative value due to the lengthy interval between appellant’s interrogation and the medical examinations. We thérefore see no ineffectiveness of counsel in failing to offer this testimony.

Appellant’s sixth attack on counsel’s effectiveness is based on his failure to instruct a defense witness to obey the trial court’s sequestration order, resulting in a prejudicial limitation on the testimony of that witness. Assuming that trial counsel had no reasonable basis for his failure to enforce the sequestration order, we reject the claim of ineffective assistance because no prejudice resulted. Com monwealth v. Clemmons, supra. Trial counsel made an offer of proof before calling the witness in question. The material evidence he intended to present was elicited during direct and cross examination.

Seventh, appellant alleges ineffectiveness of trial counsel for permitting the prosecutor to imply that the jury could infer guilt from appellant’s failure to testify. He argues that counsel should have objected and moved for a mistrial when the prosecutor made the following statements during closing argument. “Beyond that, there were other people at the gas station, none of whom were present. You’re entitled to all the evidence. You weren’t given it.” The context of the quoted statements indicates that the “other people” referred to were additional alibi witnesses not called by appellant; the reference was clearly not to the appellant’s failure to testify. Viewed in this light, the comments were proper, and failure to object did not constitute ineffectiveness of trial counsel. Commonwealth v. Leonard, 499 Pa. 357, 364-65, 453 A.2d 587, 590 (1982).

Appellant’s final attack on his counsel’s effectiveness is based on counsel’s failure to elicit testimony by appellant at the suppression hearing that appellant was under the influence of cocaine when he confessed. At the suppression hearing there was testimony by several witnesses that appellant appeared alert, aware and not under the influence of drugs or alcohol.

Based on the evidence presented at that hearing, the judge found that appellant “was not under the influence of alcohol or narcotics at the time he gave either of the two aforesaid statements to the various members of the Philadelphia Police Department.” The only evidence in support of appellant’s claim of drug use was his own self-serving testimony at the PCHA evidentiary hearing. The PCHA court, however, found that appellant was not credible, his confession was properly admitted at trial and that he was not denied effective assistance of counsel. Opinion, Blake, J. at 6. Since the PCHA court’s findings are amply supported by the record, we will not disturb its decision denying relief.

Finally, appellant argues that the offense of robbery merged with the offense of murder so that separate sentences thereon constituted double jeopardy. He places mistaken reliance upon Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), which held that the underlying felony of robbery was a constituent offense of felony murder under the Penal Code of 1939, requiring vacation of Tarver’s separate sentence for robbery. Appellant was convicted, not of felony murder, but first degree murder. Unlike felony murder, which requires the commission of a specifically enumerated underlying felony, first degree murder does not require an additional felony. The robbery committed by appellant was not a constituent offense of the murder as it was in Tarver’s case. The malice from the robbery was not imputed to the first degree murder committed by appellant, as it was in Tarver’s conviction of felony murder. The holding of Tarver thus does not apply to appellant’s convictions for first degree murder and robbery under the Crimes Code of 1972. We hold that no double jeopardy violation arose from appellant’s consecutive sentences for murder and robbery.

Order denying relief under the PCHA affirmed. Judgment of sentence affirmed.


source: Caselaw Access Project

author: HESTER, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    499 A.2d 337
    COMMONWEALTH of Pennsylvania, Appellant, v. Allan BENJAMIN.
    Superior Court of Pennsylvania.
    Argued May 22, 1985.
    Filed Sept. 18, 1985.

      Michael J. Barrassee, Assistant District Attorney, Scranton, for Commonwealth, appellant.
    William R. Lee, Scranton, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge:

This Commonwealth appeal is from a pre-trial order granting appellee’s motion to suppress. The pre-trial order suppressed all statements made by appellee on November 21, 1983, while he was at the Pennsylvania State Police Headquarters in Dunmore, Lackawanna County, Pennsylvania.

Prior to reviewing the suppression order, we must determine whether it is appealable. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that the Commonwealth’s appeal from a suppression order was proper as long as the Commonwealth certified in good faith that the order either “terminates” or “substantially handicaps” the prosecution. The good faith certification is a precaution to meritless appeals designed solely for delay. It is no longer necessary for this Court to make an independent determination from the record whether the suppression order “terminates” or “substantially handicaps” the prosecution. See Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), for the former rule which required an independent review of the record to determine the appealability of suppression orders.

The Commonwealth has certified that the suppression of appellee’s statements terminates or substantially handicaps the prosecution. Accordingly, the suppression order is appealable.

In order to review the propriety of the suppression, we must consider the pertinent facts. On November 21, 1983, the Scranton Police Department arranged with Corporal Pasquale Raico of the Pennsylvania State Police to administer a polygraph examination to appellee concerning the May, 1977 murder of a man in Nay Aug Park, Scranton. Appellee consented to the polygraph, and he was accompanied by counsel, Richard Borthwick, to the examination.

With Borthwick present, Raico commenced the preliminary stage of the polygraph examination at 11:00 A.M. During this stage, Raico instructed appellee that the actual examination was a two-hour process and that if it interfered with his plans, appellee was welcome to use the telephone to make rearrangements. Appellee declined the offer.

Raico proceeded to describe how the polygraph machine functioned, what parts would be connected to appellee, whether he would have sensation and what impulses were transmitted to the charts. Raico also reviewed every question with appellee prior to the actual examination, giving appellee an opportunity to formulate his answers and to participate in revising any objectionable questions.

Having explained the test procedure, and with counsel still present, Raico read Miranda warnings to appellee and obtained a written waiver of his Miranda rights. The waiver form consisted of Miranda rights, a waiver of those rights and an acknowledgement that the waiver was voluntary, that the examination had been explained and that appellee understood the explanation of the proposed examination. Appellee’s first signature then appeared. Below this signature, the form included a statement that the subject voluntarily submitted to the examination knowing that he could leave at any time. Appellee signed the form a second time below that statement. The waiver form was reviewed and signed in counsel’s presence. Immediately thereafter, Raico presented background questions concerning appellee’s age, height, weight, color of hair and eyes, health, education and whether he recently consumed drugs, alcohol or medication.

At that point, counsel was instructed to leave as Raico embarked on questions concerning the Nay Aug Park incident. Raico testified that a good rapport between examiner and subject is most likely to occur when they are alone in the examination room. Raico considered this so important that the test would not have been administered had counsel refused to leave.

The actual polygraph examination concerned only the Nay Aug Park murder. Upon completion of the examination, Raico “ran the charts.” That procedure consumed twenty minutes and involved the processing of impulses created by appellee’s answers.

The charts were completed at 1:40 P.M. For the next forty minutes, Raico explained why the charts indicated that appellee was giving deceptive responses, and appellee was given an opportunity to explain the result which was alleged to be a deception. It was during this forty-minute period that appellee made the inculpatory statements.

Upon learning the results, appellee denied culpability. Thereafter, for three or four minutes, Raico reviewed the charts. Appellee then stated that he did not remember being in Nay Aug Park on May 11, 1977. Raico then reviewed the test results with appellee a final time over a fifteen-minute interval. Appellee requested immunity because he feared going to jail again. At that point, the private meeting between Raico and appellee terminated, and Attorney Borthwick was called to the room.

The lower court held that Corporal Raico conducted an interview following the actual polygraph examination. According to the lower court, the interview was not related to the test; it constituted an interrogation for which Miranda warnings should have been repeated. Finding the Miranda warnings issued at the pre-examination stage to be inadequate for the post examination interrogation, the lower court suppressed the incriminating statements.

12] In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court stated that a suspect’s privilege against self-incrimination is jeopardized when he is placed in custody or his freedom is otherwise deprived and he is subjected to questioning. Immediately prior to undergoing a “custodial interrogation,” the suspect must be apprised of his Miranda rights. If the warnings are not given, any statement made during “custodial interrogation” cannot be used by the prosecution. Miranda, supra.

The Miranda court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. Although there is some question whether Raico interrogated appellee, there was sufficient evidence that he was not in Raico’s custody.

First, appellee was not under arrest. Following consultation with his attorney, appellee volunteered to take the polygraph examination. Although Corporal Raico was a state law enforcement officer, he was not operating in that capacity when he administered the exam to appellee, and no investigating officers were present. As a result, there was considerable corroboration for Raico’s testimony that appellee could leave at any time and for appellee’s signed statement that he “remained of [his] own free will knowing that [he] could leave at any time.”

Appellee volunteered each of his answers. He had an opportunity to review questions and prepare his answers prior to the actual examination. There was sufficient evidence that the voluntary nature of appellee’s statements continued during the post-examination stage when the self-incrimination occurred. These voluntary answers were additional evidence of the noncustodial nature of the post-examination period. The Miranda court itself recognized the admissibility of volunteered statements uttered without notice of constitutional warnings.

The fundamental import of the privilege [against self incrimination] while an individual is in custody is not whether he is allowed to talk to the police without benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

Id. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

We are careful to note that practically all polygraph examinations are administered to a voluntary subject. A subject generally submits to a polygraph examination because he is suspected as a perpetrator, and the test results may exonerate him. If the subject denies culpability and the test results show deception, the subject’s defense is not harmed because the results are inadmissible evidence. He voluntarily submits to the polygraph examination because, whatever the results, he does not place his position at risk.

It is true that appellee was not in “custody” during the post-examination stage. Nevertheless, we do not hold that Miranda warnings were not necessary for that reason alone. We look to additional factors which support our ultimate holding that appellee’s constitutional rights were not abused, even though post-examination Miranda warnings were not given.

Regardless of whether appellee was subjected to a custodial interrogation, it was not necessary for Raico to repeat Miranda warnings at the conclusion of the test because the earlier warnings were fresh. Miranda warnings need not be repeated at every stage of interrogation. Commonwealth v. Dennis, 451 Pa. 340, 304 A.2d 111 (1973); Commonwealth v. Abrams, 443 Pa. 295, 278 A.2d 902 (1971). Whether the warning must be repeated depends upon whether the objective indicia test indicates that the prior warning became stale. Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971).

In Ferguson, supra, a sixteen-year-old defendant was given Miranda warnings ten minutes after his arrest. When interrogation began four and one-half hours later, the Miranda warnings were repeated. During the next five hours, the defendant was interrogated with reprieves only for allowing him to speak to relatives. At the end of the five hours, the defendant signed a statement which acknowledged an understanding of Miranda warnings. Shortly thereafter, the defendant issued an incriminating statement.

The defendant in Ferguson argued that the Miranda warnings should have been repeated when a detective, who was not present during earlier readings of Miranda rights, joined the five-hour interrogation in progress. In determining whether the earlier warnings had become stale at the moment the detective joined the interrogation, the Ferguson court applied the objective indicia test and considered 1) the time lapse between the warnings and the complained-of interrogation, 2) whether the complained-of interrogation occurred at the same location as the earlier warnings, 3) whether the same officer gave the warnings and conducted the interrogation, and 4) whether statements, immediately preceded by warnings, significantly differed from statements elicited during the complained-of interrogation.

In holding the earlier warnings sufficient, the Ferguson court found that:

appellant received the Miranda warnings twice before the complained-of interrogation, once about seven and a half hours and again about three hours before the interrogation; all of the relevant events took place in the same room; Officer Kader, who had given appellant Miranda warnings, remained in the room during the interrogation by Detective Snyder; and there was only slight change between the information elicited by Officer Kader and that elicited by Detective Snyder.

Id., 444 Pa. at 482, 282 A.2d at 379-380.

Here, less than three hours elapsed between the warning and the final incriminating statement. The warning and the discussion of the test results occurred in the same room. No other officers participated in the giving of warnings, the test or the discussion that followed; Corporal Raico was the only officer who spoke with appellee. Although appellee changed his statement from unequivocal denial to an implication of guilt, his statements fell appreciably short of a confession. It is noted that there was a change in statements in Ferguson also.

Although not formally recognized in Ferguson as elements under the objective indicia test, we note the presence of counsel here and appellee’s familiarity with criminal jurisprudence as indicated by his record and past incarceration. Since we consider the objective indicia test to be a test applying the totality of the circumstances, the four elements enumerated and applied in Ferguson are not exclusive. All factors relevant to the matter at hand are suitable for consideration, including appellee’s assistance by counsel and his criminal experience. These are significant factors when considering the freshness of Miranda warnings and the suspect’s understanding thereof.

Many of the dangers which Miranda sought to extinguish were not present here. For example, there was no evidence that Raico employed those traditional interrogation tactics recognized by Miranda as used by investigating officers to lure the suspect into a confession. Raico did not attempt to win appellee’s confidence by suggesting that the victim deserved death, by rationalizing that an exercise of one’s right to remain silent is actually an admission of guilt, by isolating appellee for a long period or by subjecting appellee to relentless questioning. Moreover, appellee was not under conditions which promoted fear or duress. His attorney was present during the early stages, and remained immediately outside the examination room during the actual test. Also, appellee was not arrested, handcuffed or otherwise detained.

We realize, of course, that the absence of these dangers does not forgive the administering of Miranda warnings prior to a true “custodial interrogation.” We note them, however, as additional support for our application of the objective indicia test and our holding that post examination Miranda warnings were not required here.

The lower court improperly relied upon Henry v. Dees, 658 F.2d 406 (5th Cir.1981), a case of similar import but with significant divergence. In Henry, the twenty-year-old defendant followed the advice of his attorney in agreeing to submit to a polygraph examination. The defendant was marginally mentally retarded, had an intelligence quotient of sixty-five to sixty-nine and read on the second grade level. The defendant, his counsel and the prosecutor executed a written agreement wherein the defendant waived his rights to counsel and to remain silent during the polygraph examination. The agreement further set forth that the defendant understood that any statements were admissible at trial without objection. During the polygraph examination, the defendant made inculpatory statements.

The totality of the circumstances in Henry indicated that the defendant did not effectively waive his constitutional rights. First, the examiner did not review the questions thereby allowing the defendant to object to phrasing. He presented questions once, demanded answers, immediately informed the defendant that he had failed and then badgered the defendant into telling the truth. Here, Raico reviewed the questions prior to the exam, explained the results and asked appellee for an explanation. He did not demand answers to leading questions.

Secondly, the mental deficiencies of the defendant in Henry made it unlikely that he remembered his warnings and understood the range and scope of a proper polygraph examination. Here there is no evidence that appellee’s intelligence quotient and reading ability were considerably below norm. Moreover, he was familiar with criminal procedure and was four years older than the Henry defendant.

Next, when the examiner in Henry instructed the defendant that he had failed, the results were not processed. The examiner did not display charts or review the results; therefore, the defendant was not able to question the examiner’s interpretation. Here, Raico displayed the charts and demonstrated the evidence of deception prior to asking appellee to explain why he gave deceptive answers. Moreover, Raico used “deception” to describe the results, a more tactful and less intimidating word than “failed.”

Moreover, the Henry court held that the examiner “interrogated” the defendant during the polygraph exam. This was demonstrated by his demand that the defendant “tell the truth about this thing.” Having commenced interrogation, the Henry examiner was required to repeat Miranda warnings. Raico did not “interrogate” appellee; he neither assumed an aggressive posture nor pommeled appellee with rapid questioning. The record indicates that he simply discussed the test results and accorded appellee an opportunity to respond.

For these reasons, the lower court improperly held Henry to be persuasive.

We recognize that there is reason to question the propriety of Raico’s statements and actions when he was alone with appellee for forty minutes following the actual examination; nevertheless, the only testimony was that he consumed that time running charts and “discussing” the test results with appellee.

Order reversed and case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent and would affirm on the basis of the well reasoned opinion by Kosik, P.J. of the court below. I would also add that the scope of review in an appeal by the Commonwealth from an order of suppression is limited to determining whether the factual findings of the suppression court are supported by the record and whether the legal conclusions drawn therefrom are correct. Commonwealth v. Burgess, 319 Pa.Super. 501, 466 A.2d 656 (1983). See also Commonwealth v. Scaine, 337 Pa.Super. 72, 486 A.2d 486 (1984). The findings of fact were supported by the record and the majority does not dispute them.

I am particularly disturbed that before the polygraph examination was started the defendant’s counsel was requested to leave the room and was not permitted back until after the appellant made incriminating statements. The waiver signed by the defendant prior to the lie detector test was a broad form of waiver but also contained specific reference to voluntarily submitting to the lie detector test. The defendant waived his rights to have counsel present during the lie detector test. After reviewing the results of the test, the state police officer who conducted the examination told appellant that he did not believe he was telling the truth and then continued to interrogate the appellant without telling him that he had the right to have counsel present although defendant’s counsel was outside the room where he remained at the instructions of the police.

In my opinion, once the polygraph examination was over the defendant should have been asked if he wanted his counsel to come back into the room. As the majority points out at page 4 of its opinion, it was not until 2:00 P.M., some three hours after the polygraph examination had begun that the defendant’s attorney “was called back into the room.” It was during the 40 minute period before defendant’s counsel was asked to return, that he made the inculpatory statements.

With respect to the use of the polygraph examination, the court below succinctly stated the underlying reason why the defendant agreed to the examination: “The defendant was suspect, and the police offered him an opportunity to be exonerated.” (Majority Opinion, page 340.) Without waiving his rights to counsel at the examination, the state police would not have given the defendant the “opportunity” to have the lie detector test indicate that he had no guilty knowledge of the criminal events involved. We must remember that the state police officer conducting the examination told the defendant that he would not be allowed to take the test if his counsel were present.

A further factor that shows lack of voluntariness to the defendant’s statement is that defendant denied any complicity or knowledge pertaining to the crimes for over two and one half hours. It was only after the lie detector test ended and the police officer told defendant, in effect, that he failed the test did appellant inculpate himself. After the polygraph examination ended and the results were in the police officer shifted gears into an entirely new phase, as noted by the learned judge below, and this required a new warning.

The court’s findings of fact are supported by the evidence and I find no error in the legal conclusions based on the findings of fact. Accordingly I would affirm the order suppressing defendant’s statements.


author: CAVANAUGH, Judge:

text:
    499 A.2d 344
    COMMONWEALTH of Pennsylvania, Appellee, v. David Roy MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Sept. 27, 1985.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    Robert B. MacIntyre, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, CERCONE and LIPEZ, JJ.
   CAVANAUGH, Judge:

David Roy Martin was found guilty by a jury of driving under the influence of alcohol and by a judge of driving while his operating privileges were suspended. He was sentenced to 30 days imprisonment and a fine of $300.00 on the first offense, and a consecutive term of 90 days imprisonment and a $1,000.00 fine on the latter offense. He now appeals from those convictions.

Appellant was arrested on June 8, 1983 after his vehicle was observed traveling eastbound in the westbound lane of the Pennsylvania Turnpike by a Pennsylvania State policeman. He was charged with the above offenses. Trial was originally scheduled for November 14, 1983, but on that day appellant’s public defender moved to withdraw from the case. The court granted that motion and continued the matter to December 13, 1983, the appellant’s run date for purposes of Rule 1100. On December 13, the case was again continued until January 16, 1984.

On January 16, 1984, appellant filed a counseled waiver of his right to a speedy trial specifically waiving the computation of time under Rule 1100 for the period between January 16, 1984 and the March, 1984 term of the Dauphin County Criminal Court.

Trial commenced on February 10, 1984, before a judge and a jury on the driving under the influence charge, and before the same judge without a jury on the driving while suspended charge. On February 13, the jury was charged and sent out to deliberate. In the interim, further testimony was heard on the driving while suspended offense before the judge alone. The appellant was found guilty by the judge on this count and immediatély sentenced to ninety days imprisonment, plus a $1,000.00 fine. The court then “deferred] the effectiveness of the sentence” for ten days or until February 23. N.T. at 51 (February 13, 1984). Subsequently, the jury returned a verdict of guilty on the DUI charge.

Appellant then retained new counsel to pursue his post-verdict motions. These motions and supplemental post-verdict motions were filed and later denied by the trial court without a hearing.

A second sentencing hearing was then held on July 24, 1984. At that proceeding the court sentenced the appellant to pay a fine of $300.00 plus the costs of prosecution and to undergo imprisonment for a period of not less than thirty days, nor more than six months. The court then continued:

[W]e will reaffirm our sentence in connection with driving under suspension filed to 1727(b) CD 1983.
And now, July 24, 1984, the sentence of the Court is the defendant pay a fine of $1000, the cost of prosecution, that he undergo imprisonment in the Dauphin County Prison for a period of 90 days, to begin and be computed at the expiration of the sentence imposed at 1727 CD 1983 [driving under the influence of alcohol].

N.T. at 4-5 (July 24, 1984).

Appellant was thereafter re-appointed counsel from the Public Defender’s Office. On July 31, 1984, appellant filed a motion for modification of sentence as to each conviction. This motion was denied and, on August 7, 1984, appellant filed his appeal from the judgments of sentence entered on July 24, 1984.

Pursuant to the rules of appellate procedure, “the notice of appeal ... shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R. A.P. 903(a). In appeals from criminal convictions, therefore, the time for the filing of the notice is within thirty days of sentence. See Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984). Appellant was sentenced on the driving under suspension charge on February 13, 1984, although the court delayed the effectiveness of that sentencing order until February 23, 1984. Under our rules of appellant procedure, appellant therefore should have filed his notice of appeal from that judgment of sentence within thirty days of February 23, 1984. Because appellant did not file his notice of appeal until August 7, 1984, the present appeal as to 1727(b) CD 1983, driving under suspension, is untimely.

Nevertheless, we will consider appellant’s arguments. “To constitute an effective waiver [of appellate rights], it must appear that there was an ‘intentional relinquishment or abandonment of a known right.’ ” Commonwealth v. Collins, 295 Pa.Super. 380, 383, 441 A.2d 1283, 1284 (1982) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); U.S. ex rel Boyd v. Rundle, 308 F.Supp. 184, affd. 437 F.2d 405 (3rd Cir.1970); Commonwealth v. Mack, 451 Pa. 319, 304 A.2d 93 (1973); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968); Commonwealth v. Ross, 289 Pa.Super. 104, 432 A.2d 1073 (1981); Commonwealth v. Henderson, 231 Pa.Super. 190, 331 A.2d 824 (1974)). See also Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984) (“constitutional right to appellate review is a personal right which may be relinquished only through a knowing, voluntary and intelligent waiver”). Following sentencing on February 13, and after the jury returned its verdict on the DUI charge, the trial court informed the appellant of his right to file post-verdict motions and also advised him, “[i]f you filed no post-trial motions of any kind and you were then sentenced by the Court, you would have thirty days from that date to take an appeal from the imposition of the sentence____” N.T. at 55 (February 13, 1984). We cannot conclude from this that appellant was adequately informed of the necessity of filing a notice of appeal within thirty days of the effective date of sentence, February 23, 1984, especially in view of the procedural complexity which accompanied concurrent jury and non-jury trials. Consequently, we cannot conclude that appellant waived his right to appeal in a knowing, voluntary and intelligent fashion. We will not quash the appeal.

Appellant first contests the sufficiency of the evidence on each of his convictions, i.e. misdemeanor, driving under the influence; and summary offense, driving while license suspended. Appellant attempted to raise these arguments below with the following post-verdict motion:

15. The evidence as to each count was not sufficient as a matter of law to sustain the verdict.

Appellant’s Motion in Arrest of Judgment. Appellant did not endeavor to supplement this boiler-plate allegation through his amended post-verdict motions. This court has definitively admonished such motion practice. We have expressly opined:

A boiler plate motion, either that “the evidence was insufficient to support the verdict,” or that “the verdict was against the weight of the evidence,” is not a “precise statement of issues and grounds relied upon.” Such assignments of error not only do not “foster” but discourage “alert and zealous advocacy,” for anyone may make them without giving thought to what the issues really are. While “reflective and reasoned judgments by the court” may not be impeded, they will at least not be fostered, by boiler plate. As the Court stated in [Commonwealth v.] Waters [477 Pa. 430, 384 A.2d 234]:
In sum, the insistence upon the requirement of specific written post-verdict motions in accordance with Rule 1123(a) enhances the quality of review; encourages professional advocacy; discourages pursuit of frivolous claims; and promotes judicial economy.
Id., 477 Pa. at 435, 384 A.2d at 237 (footnote omitted).
We are persuaded by Waters to two conclusions: First, if counsel believes that the evidence was insufficient to support the verdict, the post-verdict motion should specify in what respect that was so.

Commonwealth v. Holmes, 315 Pa.Super. 256, 266, 461 A.2d 1268, 1273 (1983). The court then concluded that such boilerplate motions will not preserve any issue for appellate review. Accordingly, we find waived appellant’s contention that the evidence was insufficient to sustain the verdicts.

Appellant’s second argument is that trial counsel was ineffective for failing to object to the court’s charge to the jury. Specifically he asserts that trial counsel should have objected to the trial judge’s failure to instruct the jury that the Commonwealth has a burden to prove each element of the crime beyond a reasonable doubt.

Appellant correctly cites Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977), for the proposition that “[t]he defense had an absolute right to have the jury instructed not only as to the quantum of proof required to establish guilt but also that the requirement extended to each of the material elements of the offense.” Id,, 472 Pa. at 490, 372 A.2d at 796. As the court in Bishop also stated, however, “In determining the adequacy of the instructions to the jury on the relevant legal principles the charge must be read as a whole.” Id. (citing Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973); Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970)). Reviewing the charge given in the present case, we conclude that it was adequate to guide the jury’s deliberations. The court properly defined the Commonwealth’s burden as proving guilt beyond a reasonable doubt and, although perhaps in not the optimal manner, did in fact charge that “the Commonwealth has the burden of proving each and every element of a criminal act ____” We therefore disagree with appellant that his trial counsel should have objected to the jury charge; counsel will not be deemed ineffective.

Thirdly, appellant alleges that his trial counsel was ineffective for failing to raise the issue of appellant’s right to a speedy trial. Pursuant to Pennsylvania Rule of Criminal Procedure 1100, trial must commence no later than 180 days from the date of the complaint. The run date in the present case was December 13, 1983. However, appellant was not brought to trial until February 10, 1984.

Rule 1100 provides that in calculating the period for commencement of trial, the following time periods will be excluded: (1) the period of time between the filing of the complaint and the defendant’s arrest; (2) any period expressly waived by the defendant; (3) any period of delay which results from (i) the unavailability of the defendant or his attorney or (ii) any continuance granted at the request of the defendant or his attorney. Pa.R.Cr.P. 1100(d). Instantly, the appellant waived from inclusion the time between January 16, 1984 and the date of trial. Therefore, the only delay at issue is that from December 13, 1983 until January 16, 1984.

The Commonwealth on appeal asserts that this period of delay is chargeable to the appellant. It alleges that the continuances granted by the court on November 17, 1983 and December 13, 1983 were at the request of the defendant who appeared without counsel. If accurate, this statement of the facts might be sufficient to discount the delay. However, the facts asserted by the Commonwealth in its brief do not appear in the record. Accordingly, this court cannot properly consider them. See, e.g., Commonwealth v. Quinlan, 488 Pa. 255, 412 A.2d 494 (1980); Commonwealth v. Griffis, 310 Pa.Super. 547, 456 A.2d 1071 (1983). See also Pa.R.A.P. 1921.

Rather, on the facts properly before us, we agree with the appellant that there appears of record no extension nor excludable time between December 13, 1983 and January 16, 1984. We therefore are constrained to remand this allegation of ineffectiveness to the trial court for an evidentiary hearing concerning trial counsel’s basis for not asserting appellant’s Rule 1100 rights.

Appellant next argues that trial counsel was ineffective for failing to object to the admission of a document from the Pennsylvania Department of Transportation, Bureau of Traffic Safety. The Commonwealth introduced this certified statement of the appellant’s operating record for the purpose of showing that on June 8, 1983, appellant’s driving privileges were suspended following a violation of 75 Pa. C.S. § 3731, driving under the influence of liquor or drugs.

Appellant contends that his trial counsel should have objected to the admission of this evidence on the grounds that it was not an official record and therefore constituted inadmissible hearsay. This court has previously rejected this argument and ruled that certified records from the Bureau of Traffic Safety do indeed fall under the official record exception to the hearsay rule. Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982). Appellant’s trial counsel therefore cannot be deemed ineffective for failing to assert a frivolous objection. See, e.g., Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982).

The fifth issue raised by appellant is that his trial counsel was ineffective for eliciting testimony regarding the appellant’s history of alcohol related problems. The following exchange took place at trial between trial counsel and the appellant:

Q Now, Mr. Martin, this case involves use of alcohol OR DRIVING UNDER THE INFLUENCE OF ALCOHOL. HAVE YOU HAD PROBLEMS WITH ALCOHOL IN THE PAST?
A Yes, I have been in and out of trouble pretty near EVER SINCE I GOT OUT OF THE ARMY. It’S ALL BEEN ALCOHOL RELATED.

Appellant argues that this evidence could not have been elicited by the Commonwealth because of its prejudicial nature. On the record before us, however, we cannot say that such trial strategy constitutes per se ineffective assistance of counsel. Cf Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983) (decisions within the realm of sound trial strategy do not form the basis for a finding of ineffective assistance of counsel). We therefore remand this issue for an evidentiary hearing to determine the reasonableness of counsel’s decision to elicit testimony concerning appellant’s history of alcohol-related problems.

Appellant asserts that his trial counsel was ineffective for failing to request a poll of the jury following the announcement of the verdict. There is a presumption in the law that counsel is effective; the burden of establishing ineffectiveness rests squarely upon the appellant. See Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Fundamental to satisfying this burden is appellant’s obligation to demonstrate that he has been prejudiced by counsel’s alleged omissions. See Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984); Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). In the present case, appellant offers no evidence that any of the jurors did not voluntarily join in the announced verdict and so we cannot conclude that appellant has been somehow adversely affected by the failure to request a jury poll. There is no merit to this allegation of ineffectiveness.

Appellant next alleges that trial counsel was ineffective for having appellant testify in defense of the charge for driving while operating privileges were suspended. The ABA Standards for Criminal Justice provide:

Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what pleas to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.

ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 5.2(a), at 237-38 (approved draft, 1971), quoted with approval in Commonwealth v. Boyd, 461 Pa. 17, 29, 334 A.2d 610, 616 (1975). The comment to this section provides in part:

In making each of these decisions — whether to plead guilty, whether to waive jury trial and whether to testify — the accused should have the full and careful advice of his lawyer. Although counsel should not demand that his own view of the desirable course be followed, he is free to engage in fair persuasion and to urge his considered professional opinion on his client. Ultimately, however, because of the fundamental nature of these three decisions, crucial in such basic matters governing his own fate, the decisions on these matters belong to the accused.

Id.

In Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975), the defendant asserted that his counsel had been ineffective for failing to request a jury trial. The Boyd court stressed that, as dictated by the ABA Standards, “the decision to waive a jury trial is ultimately and solely the defendant’s [;] a defendant must bear the responsibility for that decision.” Id., 461 Pa. at 29-30, 334 A.2d at 616 (quoting Commonwealth v. Stokes, 450 Pa. 167, 173 n. 1, 299 A.2d 272, 276 n. 1 (1973)). Therefore, the court concluded:

Counsel’s advice to waive a jury trial can be the source of a valid claim of ineffective assistance of counsel only when 1) counsel interferes with his client’s freedom to decide to waive a jury trial, cf. Commonwealth v. Stokes, supra, or 2) appellant can point to specific advice of counsel so unreasonable as to vitiate the knowing and intelligent waiver of the right. Where an appellant merely claims, as in the present case, that his decision was a strategic error, and can point to no specific incidents of counsel impropriety, he must bear the responsibility for that decision and cannot shift the blame to counsel.

Id. 461 Pa. at 30, 334 A.2d at 617.

Similarly in the present case, the decision to testify in his own behalf was “ultimately and solely the defendant’s.” In light of the principle espoused in Boyd, we hold that in order to support a claim that counsel was ineffective for “putting” the appellant on the witness stand, the appellant must demonstrate either that (1) counsel interfered with his client’s freedom to decide to testify, or (2) appellant can point to specific advice of counsel so unreasonable as to vitiate a knowing and intelligent decision to testify in his own behalf. Appellant in the case at bar does not satisfy this standard. Rather he relies on what amounts to a claim of strategic error without pointing to specific incidents of counsel impropriety. We therefore will not find trial counsel ineffective on this ground.

Appellant also contends that his trial counsel was ineffective for failing to demur to the Commonwealth’s evidence on the charge of driving while under suspension, section 1543(b).

In order to attain a conviction under section 1543(b), the Commonwealth must prove beyond a reasonable doubt, inter alia, that the defendant had notice of the suspension of his operator’s license. See Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982); Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975). Instantly, the Commonwealth introduced into evidence a certified statement of the appellant’s operating record. This statement notes that official notice of the suspension of appellant’s driver’s license was mailed on February 17, 1983 and that an “affidavit” was received by the Department of Transportation on March 22, 1983.

In Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), the Pennsylvania Supreme Court held that evidence that a notice of suspension had been mailed, standing alone, is not sufficient to prove beyond a reasonable doubt that the defendant had actual notice of his suspension. However, where there is additional evidence, for example that the defendant returned his license to the Bureau of Traffic Safety pursuant to 75 Pa.C.S. § 1541, then the evidence may be sufficient to demonstrate actual notice. See Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982).

In the present case, the Commonwealth offered evidence that the notice of suspension was mailed. The only additional evidence presented by the Commonwealth which might suggest that the notice was in fact received was the notation on the appellant’s certified driving record that an “affidavit” was received by the Department on March 22, 1983. There is nothing in the record to indicate the specific nature of this “affidavit” and we therefore are unable to determine whether it demonstrates actual notice as in Burkett. Absent proof of appellant’s actual knowledge of the suspension, a demurrer to the charge under section 1543(b) should have been sustained. Appellant’s trial counsel therefore may have been ineffective. In order to determine the validity of this claim, however, we must remand for an evidentiary hearing as to the nature of the “affidavit” reported in the appellant’s driving record and as to trial counsel’s rationale for failing to file a demurrer.

Appellant also argues that in order to prove a violation of section 1543(b) for operating a motor vehicle while under suspension for a conviction of driving under the influence, the Commonwealth must prove that conviction independently, i.e. by introducing the actual record of the DUI conviction. We disagree.

Section 1543 of the Motor Vehicle Code makes it a summary offense for a person to drive a motor vehicle on any highway or trafficway in the Commonwealth when their operating privileges have been suspended, revoked or recalled. Ordinarily, a violator of this statute is subject to a fine of $200. 75 Pa.C.S. § 1543(a). However, if the defendant’s operating privileges have been suspended or revoked because of a prior conviction for driving under the influence of alcohol or drugs, or for refusal to submit to a chemical blood-alcohol test, then the violator is subject to a fine of $1000.00 and imprisonment for not less than 90 days. Id. § 1543(b). In order to prove an offense under subsection (b), the Commonwealth need only prove that the defendant’s suspension or revocation of operating privileges was based on a conviction for driving under the influence or refusing to submit to a blood-alcohol test; it need not prove the fact of the conviction or the refusal. The defendant’s interest in having, for example, the DUI conviction proven independently are protected in the first instance by section 1532(b)(3) which provides that suspension will take place only upon receipt by the Motor Vehicle Department of a certified record of the driver’s conviction. If a defendant then wants to challenge the suspension, he may do so directly as provided in section 1550. When on trial for a violation for section 1543(b), however, it is the fact of suspension which is wholly relevant, not the fact of the earlier conviction.

In the present case, the Commonwealth properly and adequately demonstrated through the appellant’s certified driving record that his operating privileges had been suspended because of an earlier conviction for driving under the influence of alcohol or drugs. A demurrer to the Commonwealth’s evidence on the grounds that the DUI conviction had not been independently proven would have been properly overruled. Hence, appellant’s trial counsel was not ineffective for failing to pursue that claim.

The final issue raised by the appellant is whether the lower court lacked jurisdiction when it re-imposed sentence on the driving under suspension conviction. Appellant had been originally sentenced on February 13, 1984, to a term of ninety days imprisonment plus a $1,000.00 fine. On July 24, 1984, the same sentence was re-imposed, but this time it was made consecutive to the sentence imposed at 1727 CD 1983, driving while intoxicated.

The general rule regarding a trial court’s power to modify a sentence is that

except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

42 Pa.C.S. § 5505 (1981). Additionally, “[w]e have consistently held that the trial court lacks jurisdiction to modify a sentence once the thirty day period for filing an appeal has passed.” Commonwealth v. Gordon, 329 Pa.Super. 42, 49, 477 A.2d 1342,1345 (1984) (citing Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982); Commonwealth v. Canady, 297 Pa.Super. 292, 443 A.2d 843 (1982)). Here the lower court attempted to modify appellant’s sentence, by making it consecutive, five months after it was originally entered. This it could not do. We, therefore, must vacate the sentence imposed on July 24, 1984, at 1727(b) CD 1983, on appellant’s conviction for driving under suspension.

Judgments of sentence imposed on February 13, 1984 and July 24, 1984 are vacated. Case remanded for hearings in accordance with this opinion. If the hearing court finds no merit to appellant’s allegations of ineffective assistance of counsel, it is to reinstate the sentences imposed on February 13,1984 at 1727(b) CD 1983 and on July 24, 1984 at 1727 CD 1983, to run concurrently. If trial counsel is found ineffective, then appellant shall be awarded an appropriate new trial. Jurisdiction is relinquished.

      . Appellant is represented by his fourth new counsel on appeal. The record suggests that appellant was represented initially by a member of the Dauphin County Public Defender’s Office. That attorney withdrew before trial and appellant retained private trial counsel. Appellant later retained different counsel to pursue his post-verdict motions. Finally, appellant was re-appointed present counsel for appeal purposes from the Public Defender’s Office.

      . The docket entries reflect the following:
      FEB 13 1983 ..., Sentence of the Court that Defendant pay fine of One Thousand dollars (1,000.) to the Commonwealth, that he pay the costs of prosecution, and that he undergo punishment in the Dauphin County Prison for and during the term of 90 days to commence and be computed from this day and shall therein be kept, fed, clothed, treated and governed as provided by law.
      Computed from 2-23-84 Sentence Deferred for 10 days.

      . On appeal, appellant presents seven allegations of trial counsel’s ineffectiveness. Each of these issues was raised initially by appellant’s post-verdict motion counsel and therefore are properly preserved for review. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) ("ineffectiveness of prior counsel must be raised at the earliest stage in proceedings at which counsel whose ineffectiveness is being challenged no longer represents the accused").

      . The docket entries for July 24, 1984, also reflect this re-imposition of sentence and the fact that it is to run consecutive to the sentence on the DUI conviction.

      . We also note that appellant did file post-verdict motions on February 23, 1984. Therefore, in light of what was said at the post-trial colloquy, appellant could reasonably have believed that the thirty day appeal period did not begin to run.

      . Although appellant raised this, allegation of ineffectiveness in post-verdict motions, no hearing was held to determine its merits.

      . Pursuant to 75 Pa.C.S. § 1543(b),
      Any person who drives a motor vehicle on any highway or traffic-way of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1000 and to undergo impiisonment for a period of not less than 90 days.
      Except for those cases covered by subsection (b), ordinarily any person who operates a motor vehicle while under suspension or revocation is guilty of a summary offense and, upon conviction, shall be sentenced to pay a fine of $200. 75 Pa.C.S. § 1543(a).

      . See note 6 supra.

      . See note 1 supra.

      . The statement indicates that appellant’s operating privileges were suspended for a six month period effective March 4, 1983.

      . See note 6 supra.

      . See 75 Pa.C.S. § 1532(b)(3) (Purdon Supp.1985) (“The department shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver’s conviction of section 3731 (relating to driving under the influence of alcohol or controlled substance) or an adjudication of delinquency based on section 3731.").

      . See 75 Pa.C.S. § 1547(b)(1) (Purdon Supp.1985) ("If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.").

      . Section 1550 provides:
      (a) General rule. — Any person denied a driver’s license or whose operating privilege has been recalled, canceled, suspended or revoked by the department shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).
      (b) Supersedeas. — The filing of the petition shall operate as a supersedeas and no recall, suspension, cancellation or revocation shall be imposed against such person until final determination of the matter.
      (c) Proceedings of court. — The court shall set the matter for hearing upon 30 days written notice to the department and determine whether the petitioner is in fact the person whose operating privilege is subject to the recall, suspension, cancellation or revocation.
      75 Pa.C.S. § 1550 (Purdon Supp.1985). The relevant section of Title 42 states:
      [A]n appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order.
      42 Pa.C.S. § 5571(b) (Purdon 1981).

      . Appellant also alleges that in re-sentencing on the driving while suspended charge, the trial court violated his rights against double jeopardy. It is true that a defendant's sentence, once ordered, cannot be later increased without infringing on that defendant’s fifth amendment rights. See, e.g., Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971); Commonwealth v. Grady, 309 Pa.Super. 187, 455 A.2d 112 (1983). However, a violation of the double jeopardy clause occurs only if the sentence is increased after the defendant has begun serving it. See Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971); Commonwealth v. Unger, 315 Pa.Super. 408, 462 A.2d 259 (1983). In the present case, appellant had not yet begun to serve the sentence imposed on February Í3 when he was re-sentenced on July 24. N.T. at 5-6 (July 24, 1984). Therefore, the re-imposition of sentence did not violate his rights against double jeopardy.

      . In light of our disposition, we need not address the merits of appellant’s claim that the imposition of consecutive sentences rendered the total sentence excessive.


author: MONTGOMERY, Judge:

text:
    499 A.2d 354
    George W. KRUTH, Administrator of the Estate of Mary E. Baird A/K/A Mary Kruth, Deceased, and All Others Similarly Situated, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 30, 1985.
    Filed Sept. 27, 1985.

      Richard C. Angino, Harrisburg, for appellant.
    Jeffrey B. Rettig, Harrisburg, for appellee.
    Before TAMILIA, MONTGOMERY and ROBERTS, JJ.
   MONTGOMERY, Judge:

This action was instituted in the lower court to recover No-fault work loss benefits for a decedent’s estate and all others similarly situated. The Defendant insurer provided the No-fault coverage to the decedent, who lost her life when accidentally asphyxiated by carbon monoxide poisoning in a motor vehicle. The Plaintiff-Appellant administrator of the estate files the instant appeal from the lower court’s denial of his class certification petition and the granting of Defendant’s motion for summary judgment. He also challenges the lower court’s denial of a petition for reconsideration of the certification request.

With regard to the class certification issue, we must be guided by Pennsylvania Rule of Civil Procedure 1702, which sets forth the prerequisites for certification by our courts:

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

In the case of Janicik v. Prudential Insurance Company of America, 305 Pa.Super. 120, 451 A.2d 451 (1982), the proper approach to the consideration of class certification requests was set forth as follows:

Once the class action allegations are well-pleaded, as was conceded here, the class proponent at the class certification hearing must present evidence of the underlying facts from which the court can conclude that the five class certification requirements are met____ Because the requirements for class certification are closely interrelated and overlapping, the class proponent need not prove separate facts supporting each; rather, her burden is to sufficiently establish those underlying facts from which the court can make the necessary conclusions and discretionary determinations____ Though this initial burden is not heavy, it requires more than mere conjecture, and conclusory allegations, especially if facts of record tend to contradict the propriety of the class action. 305 Pa.Super. at 129-130, 451 A.2d at 455. (Citations and other information omitted)

While the lower court recognized these guiding principles, and expressed in its opinion a recognition that doubts about certification should be resolved in favor of allowing the class action, it nevertheless found a complete failure by the Appellant to establish two of the required criteria mandated by Rule 1702.

The court first concluded that the Appellant had not demonstrated that the class was so numerous that joinder of all members would be impractical. It appears that the Plaintiff sought information in discovery which would have provided evidence as to the size of the purported class. The Plaintiff did not receive responses to such inquiries prior to the lower court’s scheduling of a hearing on the certification request. During that hearing the point was raised that such information had not been provided by the Defendant voluntarily and the court had not issued any order compelling its production. However, Plaintiff’s counsel stated that he saw no problem with going forward in these circumstances and elected to proceed with the hearing without such information. Moreover, the colloquy between Plaintiff’s counsel and the court indicated that the trial judge had also contacted the attorney by telephone prior to the class certification hearing to inquire if there would be any objection to proceeding with the hearing in such circumstances, and had received the same response.

It appears that the Plaintiff’s only attempt to satisfy the numerosity requirement was to request that the trial court take judicial notice of the number of vehicles insured in our Commonwealth and the number of highway deaths which occur annually. In light of this record, we cannot hold that the lower court erred in determining that the crucial element of numerosity had not been adequately demonstrated by the Plaintiff-Appellant.

We also discern no error in the lower court’s conclusion that the Plaintiff failed to adequately establish that as a representative, he would fairly and adequately assert and protect the interests of the class under the criteria set forth in Pennsylvania Rule of Civil Procedure 1709. That Rule states:

In determining whether the representative parties will fairly and adequately assert and protect the interests of the class, the court shall consider among other matters
(1) whether the attorney for the representative parties will adequately represent the interests of the class,
(2) whether the representative parties have a conflict of interest in the maintenance of the class action, and
(3) whether the representative parties have or can acquire adequate financial resources to assure that the interests of the class will not be harmed.

Our review of the record compels a finding that the lower court was correct in stating, in its opinion, that there was an absence of evidence to support the Plaintiff’s burden with respect to sections (2) and (3) of the Rule. The Plaintiff was not present at the certification hearing, and no affidavits, depositions, or other proof was offered on his behalf on these points. Thus, we must hold that the lower court did not err in denying class certification because of the Plaintiff’s failure to even minimally establish the adequacy of his representation of the requested class.

The Plaintiff’s initial failure to satisfy its class certification burdens becomes even more evident as we examine its contention that the lower court should have granted his request for reconsideration of the certification issue. As part of his petition for reconsideration, the Plaintiff included factual statistical information bearing on the numerosity requirement, and an affidavit supportive of his burden of proof on the adequacy of representative element of Rule 1702.

The general rule is that a court may in its discretion grant a rehearing, but such decisions are peculiarly within the sound discretion of the trial court. In re J.E.F., 487 Pa. 455, 409 A.2d 1165 (1979). A denial of an opportunity for rehearing or reconsideration for the purpose of receiving additional evidence will not ordinarily be disturbed by an appellate court. Commonwealth v. Deitch, 449 Pa. 88, 295 A.2d 834 (1972). Reversal is appropriate only if the lower court has committed an abuse of discretion. Thomas v. Waters, 350 Pa. 214, 38 A.2d 237 (1944).

No such abuse by the lower court is apparent in this case. The Appellant has not convinced us of any more than that he failed to satisfy his burden of proof when initially offered a full opportunity to do so, and now wants a second chance to attempt to show an entitlement to class certification. This does not establish any basis for a reversal of the lower court’s order denying reconsideration on the certification issue.

Finally, we examine the Appellant’s contention that the lower court should not have granted summary judgment. The lower court determined that the Plaintiff’s claims were barred by the applicable statute of limitations. The Appellant maintains that although this action was first instituted over five years after the date of the decedent’s vehicle-related death, the statute of limitations was tolled by other class actions previously commenced. The Appellee has conceded that the Appellant’s argument on this point has merit. We are constrained to agree.

The question of whether a class action will toll an applicable statute of limitations for all purported class members was addressed in the landmark case of American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); rehearing denied 415 U.S. 952, 94 S.Ct. 1477, 39 L.Ed.2d 568 (1974). There the Supreme Court, analyzing federal class action concepts, held that commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties to the class had the suit been permitted to continue as a class action. While the Supreme Court in American Pipe suggested that its holding was applicable in the limited situation where class certification was denied because of a failure by the plaintiff to establish the numerosity requirement, later holdings have made it clear that the same tolling rule would be applied in other class action settings. See Crown Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). Although these cases obviously involved considerations of federal rules and precedents, the rationale and rule has been adopted in our Commonwealth by our own Supreme Court. In Alessandro v. State Farm Mutual Automobile Insurance Co., 487 Pa. 274, 409 A.2d 347 (1979), the following is set forth at footnote 9:

Unlike a case where parties are joined, all members of a class action are “parties plaintiff” upon the filing of the complaint. When the defendant successfully moves for decertification, the decertified parties are “put out of court” as to the class action. This order is final, Lee v. Child Care Services, 461 Pa. 641, 337 A.2d 586 (1975), and the decertified class members may then pursue their actions on an individual basis. They will not be time barred by the statute of limitations, as it is suspended during the time they are allegedly parties to the class action. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). 487 Pa. at 279, 409 A.2d at 350.

Thus, it is clear that the Appellant’s claim could not be held to be time barred if a previously filed class action, in which the Appellant would have been a class member, tolled the applicable statute as to his claim. Both parties to this appeal refer us to the case of King v. Liberty Mutual Insurance Co., No. 3340 December Term 1980 (Philadelphia County), in which suit was filed on December 19, 1980, less than three years after the death of Appellant’s decedent. This was well within two years of the last date on which the victim in this case would have recived monthly work loss benefits and within four years of his death. See Kamperis v. Nationwide Insurance Company, 503 Pa. 536, 469 A.2d 1382 (1983), regarding the applicable statute of limitations. It is agreed that in that case, the administrator of a decedent’s estate instituted a class action seeking No-fault work loss benefits on behalf of the decedent, identical to those sought by the Appellant in this case. At the time briefs were filed in our Court in the instant case, the King case was apparently proceeding in Philadelphia County.

Thus, it is evident that the King case filing tolled the statute of limitations applicable to the Plaintiff in this case. Accordingly, the lower court erred in holding that the Plaintiff’s claim was time barred. The order granting summary judgment in favor of the Appellee cannot stand.

The part of the Order of the lower court denying class certification is affirmed. The part of the Order granting the Appellee’s motion for summary judgment is reversed, and this case is remanded to the trial court for further proceedings. Jurisdiction is not retained.

      . The Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, § 101-701, was repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.


author: CERCONE, Judge:

text:
    499 A.2d 358
    COMMONWEALTH of Pennsylvania v. Jeffrey SAUL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Sept. 27, 1985.
    Petition for Allowance of Appeal Denied April 29, 1986.

      Susan C. DeYoung, Assistant Public Defender, Camp Hill, for appellant.
    Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, CERCONE and LIPEZ, JJ.
   CERCONE, Judge:

This is an appeal from judgment of sentence rendered by the Court of Common Pleas, Dauphin County. Appellant was found guilty of unlawful delivery of a controlled substance and sentenced to serve three to twenty-three months incarceration. He is presently free on bail.

On April 6, 1983, Detective David Teel of the Harrisburg Police Department, along with a confidential informant, purchased a controlled substance from appellant’s residence in Susquehanna Township, Dauphin County. At the time of the controlled buy, Teel was working as a member of the Harrisburg Police Department in Dauphin County and knowingly went beyond the geographical bounds of the City of Harrisburg for the express purpose of conducting an investigation of drug activity involving a residence in Susquehanna Township. There is no evidence in the record that Teel had been requested to participate in such activity by the Susquehanna Township police nor is there evidence of any agreement of cooperation between the officials of Harrisburg and Susquehanna Township.

Detective Teel secured the issuance of a criminal complaint in Dauphin County charging appellant with one count of unlawful delivery of a controlled substance. Prior to trial, the lower court quashed the complaint on the grounds that Teel could not be an affiant in a criminal complaint on a matter which arose outside his jurisdiction. The charges were refiled by the Dauphin County District Attorney’s Office. Appellant waived his right to a preliminary hearing and was formally arraigned.

A motion to suppress the evidence seized was filed by appellant. This motion raised the same issues raised in the earlier motion to quash. After a hearing on the motion, the court issued an order which denied appellant’s motion. Appellant was convicted and sentenced. This appeal followed.

Appellant raises two issues on appeal. The first is whether Detective Teel had illegally conducted a police investigation outside his geographical jurisdiction without statutory authority. The second related issue is whether a motion to suppress is the proper method by which to attack an illegal investigation and its consequential production of evidence. These are questions of first impression in this Commonwealth.

The statutory limitation on a police officer acting beyond his geographical area is found in the Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8951 et seq., (the Act), which reads, in pertinent part:

(a) General rule — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws on performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(1) Where the officer is acting pursuant to an order issued by a court of record or an order issued by a district magistrate whose magisterial district is located within the judicail district wherein the officer’s primary jurisdiction is situated, or where the officer is otherwise acting pursuant to the requirements of the Pennsylvania Rules of Criminal Procedure, except that the service of an arrest or search warrant shall require the consent of the chief law enforcement officer or a person authorized by him to give consent, of the organized law enforcement agency which regularly provides primary police services in the municipality wherein the warrant is to be served.
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
(3) Where the officer has been requested to aid or assist any local, State of Federal law enforcement officer or otherwise has probable cause to believe that the officer is in need of aid or assistance.
(4) Where the officer has obtained the prior consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which provides primary police services to a political subdivision which is beyond that officer’s primary jurisdiction to enter the other jurisdiction for the purpose of conducting official duties which arise from official matters within his primary jurisdiction.
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace of other act which presents an immediate clear and present danger to persons or property.
(6) Where the officer views an offense which is a felony, or has probable cause to believe that an offense which is a felony has been committed, and makes a reasonable effort to identify himself as a police officer.

42 Pa.C.S.A. § 8953(a). The Commonwealth concedes that Teel’s activities did not fit within any of the enumerated exceptions. However, the Commonwealth argues that a police officer’s authority to “investigate” outside his primary geographical territory is not limited by this section. It argues that the limitation applies only to the authority to arrest or to conduct a search and seizure. The Commonwealth cites no authority for this proposition but argues that the results would be ludicrous were we to interpret the statute otherwise. We do not agree.

When the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering the former law, if any, including other statutes upon the same or similar subjects. See 1 Pa.C.S.A. § 1921. See also Commonwealth, Department of Transportation Bureau of Traffic Safety v. Von Altimus, 49 Pa.Cmwlth. 245, 410 A.2d 1303 (1980). The legislature is presumed to have intended to avoid mere surplusage in words, sentences and provisions of its laws. The courts must therefore construe a statute, if possible, so as to give effect to every word. See Habecker v. Nationwide Insurance Company, 299 Pa.Super. 463, 445 A.2d 1222 (1982).

The meaning of the words at issue here are “the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office” as found in 42 Pa.C.S.A. § 8953(a). We cannot interpret the meaning of the previously quoted words to exclude investígations as the Commonwealth suggests. These words clearly encompass the total spectrum of a municipal police officer’s duties. The same language was used in section 8952 which describes the power and authority of a municipal police officer within his primary jurisdiction. We cannot, without good reason, interpret the same language used in two sections of a subchapter in an unlike manner. As used in section 8952 the language certainly can not be interpreted as limiting a municipal police officer’s authority to that of merely investigating crime in his primary jurisdiction. So, too, we find no good reason for construing that language to mean the limitation on a police officer’s authority outside his primary jurisdiction does not include his right to conduct investigations. We conclude, therefore, that Detective Teel clearly acted outside the scope of his statutory authority when he conducted an investigation in Susquehanna Township.

The next step, then, is to determine the proper remedy for such misconduct. Appellant argues that the evidence gained by the illegal investigation must be suppressed. The Commonwealth did not address this issue.

While we are concerned by the frequency with which the municipal police jurisdiction act is violated, a recent Supreme Court decision restrains us from suppressing the illegally obtained evidence. Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985). In Mason, the Supreme Court found this Court had erred in holding that the exclusion of evidence was the required remedy for a perceived violation of Rule 2004 of the Pennsylvania Rules of Criminal Procedure. “Such a drastic remedy — the automatic exclusion of evidence obtained during a search that is found to have technically violated the Rules of Criminal Procedure — is unwarranted, and is not supported by decisions of the appellate courts.” Id., 507 Pa. at 401, 490 A.2d at 423. The Supreme Court cited an earlier case in support of this conclusion:

A rule of exclusion is properly employed where the objection goes to the question of the reliability of the challenged evidence ... or reflects intolerable government conduct which is widespread and cannot otherwise be controlled____ Commonwealth v. Musi, 486 Pa. 102, 115, 404 A.2d 378, 385 (1979).

Commonwealth v. Mason, 507 Pa. at 403, 490 A.2d at 424. The Mason opinion also cites United States v. Johnson, 660 F.2d 749, 753 (9th Cir.1981), cert, denied 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982), for the proposition that:

“Only a ‘fundamental’ violation of [a rule of criminal procedure] requires automatic suppression, and a violation is ‘fundamental’ only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards.” U.S. v. Vasser, 648 F.2d 507, 510 (9th Cir.1980). Where the alleged violation [ ] is not ‘fundamental’ suppression is required only where:
“(1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision of the Rule.” Id. (citations omitted).

“It is only where the violation also implicates fundamental constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.” Commonwealth v. Mason, supra 507 Pa. at 406-07, 490 A.2d at 426.

Under the circumstances of the instant case, suppression of the evidence gained by Detective Teel’s illegal investigation “would be a remedy all out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.” U.S. v. Searp, 586 F.2d 1117, 1123 (6th Cir.1978), cert, denied 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979). Accordingly, the judgment of sentence is affirmed.

      . See, for example, Commonwealth v. Novick, 293 Pa.Super. 241, 438 A.2d 974 (1981); Commonwealth v. Fiume, 292 Pa.Super. 54, 436 A.2d 1001 (1981); Commonwealth v. Anzalone, 269 Pa.Super. 549, 410 A.2d 838 (1979).

      . Rule 2004. Person to Serve Warrant. “A search warrant shall be served by a law enforcement officer.”