text:
    677 A.2d 328
    COMMONWEALTH of Pennsylvania v. Anthony HASKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 11, 1995.
    Filed April 18, 1996.
    Reargument Denied June 28, 1996.

      Barbara A. Zemlock, Harrisburg, for appellant.
    E. Christopher Abruzzo, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and OLSZEWSKI, JJ.
   DEL SOLE, Judge:

Appellant Anthony Haskins was convicted by a jury of possession of cocaine with intent to deliver, possession of drug paraphernalia, and possession of a small amount of maryuana. He was sentenced to four to ten years imprisonment and a fíne of $10,000.00. This direct appeal followed. We vacate the judgment of sentence and remand for a new trial.

On appeal, Appellant raises the following issues.

(1) The trial court should have suppressed the evidence found in the car during a warrantless search.
(2) The trial court should have suppressed evidence found in a jacket in the car during a warrantless search.
(3) The trial court should have suppressed the evidence because it was the fruit of an illegal detention.
(4) The trial court should have granted a mistrial because the court told the jury about the anonymous tip the police received even though this information was not admitted into evidence.
(5) The evidence was insufficient to establish that Appellant possessed the cocaine and paraphernalia.
(6) The court abused its discretion by sentencing Appellant outside the guidelines.

Because of our disposition, we need to reach only issues one, two and five.

Between 7:00 and 7:30 in the evening on September 14, 1994, Corporal Craig LeCadre of the Community Attack on Narcotics (CAN.) unit of the Harrisburg police received information that an anonymous citizen had called the dispatch center to report that there was a drug dealer in the 1700 block of North 5th Street wearing a black, gray and red shirt. This person also indicated that the individual was driving a gray Volkswagen Rabbit with the license plate ANK-6080. Ten or fifteen minutes later, the same person called again. This time Corporal LeCadre spoke directly to the person and was given the same information as had been given during the first call. Around ten minutes later, two unmarked CAN. Unit cars arrived in the area. They drove around the area but did not find either the alleged drug dealer or the car. Eventually, one of the officers saw Appellant’s car, which had the same license plate number as the caller had given. Both police cars followed Appellant to the intersection of Third and Maclay Streets where Appellant stopped at a red light. Two officers left their car and approached Appellant’s car and stated that they wanted to talk to him. Appellant then proceeded through the red light and the police followed. After a brief pursuit, Appellant got out of the moving car and fled. The car ran into a parked car. A passenger was in Appellant’s car. Two officers chased Appellant on foot. The other two officers stayed -with the car. During the foot chase, Appellant threw away a plastic sandwich bag containing marijuana. Once Appellant was caught, one officer retrieved the bag and radioed the other officers that Appellant was apprehended and that Appellant had thrown away the bag of marijuana. The officers who were still at Appellant’s car searched it. In the glove compartment, the officers found money. In the rear hatch area, the officers found $200 in cash in a sock, razor blades and ziplock bags. In the pocket of a jacket which was in the middle of the two front seats, the officers found fifty ziplock bags of cocaine.

We must first determine whether the evidence was sufficient to establish that Appellant possessed the cocaine and the paraphernalia because if the evidence is not sufficient we would have to reverse the conviction and would not need to reach any other issues. In reviewing a challenge to the sufficiency of the evidence, we view all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984).

When contraband is not found on the defendant’s person, the Commonwealth must establish “constructive possession,” that is, the power to control the contraband and the intent to exercise that control. Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548 (1992). The fact that another person may also have control and access does not eliminate the defendant’s constructive possession; two actors may have joint control and equal access and thus both may constructively possess the contraband. Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986). As with any other element of a crime, constructive possession may be proven by circumstantial evidence. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). The requisite knowledge and intent may be inferred from examination of the totality of the circumstances. Commonwealth v. Thompson, 286 Pa.Super. 31, 428 A.2d 223 (1981). The fact that the contraband is located in an area usually accessible only to the defendant may lead to an inference that he placed it there or knew of its presence. Id.

The money found in the glove compartment and the money and paraphernalia found in the hatch area were located in areas usually accessible only to the operator of a vehicle. Thus, we have no difficulty in concluding that the evidence was more than sufficient to establish possession of these items.

There is also sufficient circumstantial evidence to establish Appellant’s possession of the cocaine found in the jacket. The jacket was located between the two front seats. Appellant was not wearing a jacket; his passenger was wearing a jacket. The jacket matched the hat which Appellant was wearing. These facts coupled with the possession of the money and paraphernalia supply ample evidence to establish that Appellant possessed the cocaine. Accordingly, we cannot agree that judgment should be arrested.

We do, however, agree with Appellant that the suppression order must be reversed as to the evidence found in the car. That evidence should have been suppressed because no exigent circumstances existed to excuse the lack of a search warrant.

The trial court herein excused the lack of a warrant because of “the automobile exception to the warrant requirement ...” Opinion at p. 3. There is no per se automobile exception to the warrant requirement. In order to search an automobile without a warrant, the police must still show the existence of both probable cause and exigent circumstances. Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1993), filed In White, our Supreme Court reiterated that the Pennsylvania Constitution requires such a showing. The Court further held that a warrantless search of an automobile is not permissible as a search incident to arrest when the arrestee does not have access to the vehicle.

Herein the police have not established exigent circumstances such as would excuse them from obtaining a warrant to search the automobile nor is the search permissible as a search incident to arrest. When the search took place, Appellant had fled the vehicle and was being apprehended a distance away. His passenger was also outside of the car and being detained by the police. Neither Appellant nor his passenger had access to the vehicle. The police have not shown any reason why they could not have obtained a warrant before searching the car since Appellant was already in custody and there was no danger that any contraband within the car could be removed by him. Accordingly, any evidence found inside the car should have been suppressed.

Suppression order reversed and evidence seized from automobile suppressed; judgment of sentence vacated; case remanded for new trial. Jurisdiction relinquished.


source: Caselaw Access Project

author: CIRILLO, President Judge Emeritus:

license: Public Domain

text:
    677 A.2d 331
    Michael A. REBIDAS a/k/a Michael Rebidas v. Joseph J. MURASKO and Ludmilla Madison. Appeal of Joseph M. MURASKO.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1996.
    Filed May 24, 1996.

      Nicholas J. Cook, Uniontown, for appellant.
    Ricardo J. Cicconi, Uniontown, for appellee.
    Before CIRILLO, President Judge Emeritus, and SAYLOR and EAKIN, JJ.
   CIRILLO, President Judge Emeritus:

Appellant Joseph M. Murasko, co-trustee of the trust at issue, appeals from an order of the Court of Common Pleas of Fayette County granting Michael A. Rebidas’ petition to terminate an irrevocable trust. We affirm.

Michael Rebidas, the settlor of the irrevocable trust agreement at issue, is a seventy-one year old bachelor who resides on a farm in Smock, Fayette County, Pennsylvania. Since 1942, Rebidas lived on the farm with his brother, George. Rebidas never married, nor did George. Rebidas has an eighth grade education.

The brothers owned property jointly. Upon George’s death in June of 1990, all title to the property passed to Michael Rebidas by operation of law.

On November 13, 1991, Murasko, Rebidas’ brother-in-law, who is also a licensed attorney in Florida, suggested that Rebidas sign a trust agreement naming him (Murasko) and Ludmilla Madison, one of Rebidas’ sisters, as co-trustees. The corpus of the trust consisted of several certificates of deposit, valued at approximately $130,000.00, and 210 acres of real property. The trust agreement provided that Rebidas receive the net income of the trust, and the co-trustees manage and invest the corpus. Rebidas’ remaining brother and his sisters were named as beneficiaries of the trust.

In 1994, Michael Rebidas expressed dissatisfaction with the trust, apparently realizing that the co-trustees had significant control over his real estate, personal estate, and bank accounts. Through counsel, Rebidas attempted to amicably resolve the matter, requesting the co-trustees to agree to rescind the trust agreement. Murasko refused this request.

Rebidas filed a petition to terminate the trust, seeking rescission based upon mistake. Rebidas contended that he was presented with the trust agreement at a time when he was still emotionally distraught over his brother’s death, a brother with whom he had lived for almost fifty years. Rebidas also averred that he never intended to relinquish control over the bulk of his assets.

The trial court granted Rebidas’ request, finding that the irrevocable intervivos trust was executed at the request and direction of Murasko, that it “effectively stripped [Rebidas] of all title to, and control of, his real and personal estate[,]” and that Rebidas did not knowingly and voluntarily execute the agreement. Co-trustee Murasko filed a motion for reconsideration. The trial court denied this motion. On appeal, Murasko raises one issue for our review:

Did the settlor prove by clear, precise, convincing and satisfactory evidence that the settlor signed the irrevocable trust agreement by mistake?

A trust is a fiduciary relationship; one person holds a property interest subject to an equitable obligation to hold or use that interest for the benefit of another. Valley Forge Historical Society v. Washington Memorial Chapel, 330 Pa.Super. 494, 479 A.2d 1011 (1984). The language or conduct creating the trust must be clear and unambiguous. A statement will be sufficient evidence of a trust if the beneficiary, the trust property, and the purpose of the trust are set forth therein. First Federal Sav. & Loan Assoc. v. Great Northern Development Corp., 282 Pa.Super. 337, 422 A.2d 1145 (1980).

Generally, a trust executed without reservation of power by a settlor to revoke or reform the trust is irrevocable. See Harding v. Harding, 305 Pa. 572, 158 A. 253 (1932). An irrevocable trust may be rescinded by the settlor, however, if it is demonstrated that the trust was created through fraud, duress, undue influence, or mistake. Id.

Here, the agreement specifically provides that the trust is irrevocable. Item V of the trust agreement states:

a. The trust created by this instrument shall be irrevocable. The settlor does not reserve unto himself the power to alter, amend, or revoke any provisions of this trust.

The trial court determined, however, based on the totality of the circumstances presented to it, that Rebidas did not knowingly, intelligently or voluntarily sign the trust agreement. The trial court found that Murasko, an attorney with a Florida law practice specializing in probate and estate work, initiated the trust agreement. Murasko acknowledged this on cross-examination. Rebidas never requested assistance in his financial affairs. In fact, Murasko acknowledged on cross-examination that he explained to Rebidas what he wanted, and that Rebidas “acquiesced.” Murasko also acknowledged that Rebidas only signed the instrument at his request, and that he never sent Rebidas any documents or statements pertaining to the trust assets or their values until he received letters from Rebidas’ attorney, three years after the trust agreement was signed.

The trial court determined that Rebidas did not understand the nature of the instrument. Furthermore, the trial court found that Murasko never suggested that Rebidas retain independent counsel to review the document before signing it; the document was prepared on Murasko’s computer and signed and notarized immediately thereafter. The trial court stated:

It is clear from Rebidas’ testimony that he trusted Murasko and believed that Murasko was acting in his best interest. However, this in reality was a false belief as Rebidas did not fully comprehend the trust agreement itself, or its ramifications. Murasko, as a practicing attorney possessing the superior knowledge concerning inter-vivos trust agreements, did nothing more to explain the terms than to review them in a summary fashion after it was he, (Murasko), who strongly suggested the irrevocable trust be created. This Court believes that if Murasko had truly benevolent motives and wanted sincerely to act in Rebidas’ best interest he, at a minimum, would have suggested Rebidas seek independent legal advice, or allow Rebidas a few days to consider it.

The trial court invoked its equitable powers and rescinded the trust agreement.

The evidence required to substantiate a request for rescission must be clear, precise, and convincing. In re Trust Estate of LaRocca, 411 Pa. 633, 192 A.2d 409 (1963). The credibility and weight accorded to the testimony and witnesses will not be disturbed except for clear error. See Harbison Estate, 365 Pa. 468, 76 A.2d 187 (1950); see also LaRocca, supra.

This court recently reiterated that “a confidential relationship is any relationship existing between the parties to a transaction wherein one of the parties is bound to act with the utmost good faith for the benefit of the other party and can take no advantage to himself from his acts relating to the interest of the other party.” Biddle v. Johnsonbaugh, 444 Pa.Super. 450, 455, 664 A.2d 159, 161-62, (1995) (citations omitted). This confidential relationship is not limited to any particular association of the parties, but exists whenever one is in a position of advisor or counselor, whereby the other party, with reasonable confidence, trusts that person to act in good faith for the other’s interest. Id. There must be an overwhelming influence on the one side, and a showing of weakness, dependence or trust on the other. Id. The existence of a confidential relationship, in all but a few instances which are not applicable here, is a question of fact to be established by the evidence. Id.

The mere existence of kinship, or a family tie, does not establish a confidential relationship, but is merely one factor to be considered in the determination. Id. Once a confidential relationship is found to exist, the proponent of a contract must show by clear and convincing evidence that “the contract was free, voluntary and an independent act of the other party, entered into with an understanding and knowledge of its nature, terms and consequences.” Id. (quoting Kees v. Green, 365 Pa. 368, 375, 75 A.2d 602, 605 (1950)). “The general test for determining a [close and confidential] relationship is whether the parties did not deal on equal terms.” Frowen v. Blank, 493 Pa. 137, 145, 425 A.2d 412, 416 (1981).

Our exhaustive review of the record indicates that a confidential relationship clearly existed between Murasko and Rebidas. Murasko, acting as an attorney and trustee, was bound to act in good faith. Having practiced law for 38 years, specializing in probate and estate work, Murasko clearly possessed superior knowledge of the subject matter. In addition to comparative knowledge and education, Murasko’s overwhelming influence and Rebidas’ trust in Murasko, as well as his dependency and weakness, was evident. Biddle, supra.

The existence of a confidential relationship, however, is not of itself grounds for rescission. That relationship, once found, indicates only a “voidable” transaction. Biddle, 444 Pa.Super. at 456, 664 A.2d at 162. The party seeking to sustain the validity of the agreement must affirmatively demonstrate that the agreement was “fair, conscientious and beyond the reach of suspicion.” Id., quoting Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411 (1922). Specifically, the proponent must establish that the agreement was a “free, voluntary and ... independent act of the other party, entered into with an understanding and knowledge of its nature, terms and consequences.” Kees v. Green, 365 Pa. 368, 375, 75 A.2d 602, 605 (1950).

This court is convinced that, at the time of the execution of the agreement, Rebidas did not comprehend the nature of the trust instrument and did not understand that he was relinquishing control of his assets. We believe that Rebidas was completely unlettered with regard to the terms and consequences of the trust. Rebidas possessed minimal education and little or no business instruction. He acknowledged that his brother, George, had handled the finances. Rebidas was unsophisticated in this domain and, as he testified, was “easy” with people. We glean from our review of the testimony that when his brother died, Rebidas, understandably, was overwhelmed; he acquiesced to those he perceived as more knowledgeable, and relinquished to them those matters he did not understand. Rebidas did not know any better; Murasko did.

We find, contrary to the requirements of Kees, supra, that the record is devoid of any evidence which would support a finding that Rebidas understood the nature, terms and consequences of the trust agreement. The trial court appropriately stemmed the relationship granting Rebidas’ request for rescission of the irrevocable trust. Estate of Pedrick, supra.

Order affirmed.

      . Ludmilla Madison, Rebidas' sister and co-trustee, testified that she did nothing with respect to the trust other than sign the instrument.

      . We note that Rebidas testified at the hearing that when Murasko presented the papers to him for signature, Rebidas believed that they pertained to his deceased brother’s estate. Rebidas testified:
      A: ... Like I said, I just put my trust in him, and he put those papers out there, and he said for me to sign these.
      Q: Well, fay putting your trust in him, did you believe that it was something to do with your estate?
      A: At the time, no. I thought that it was my brother George’s.
      Q: So, you thought that the documents that you were signing had to do with your brother George’s estate?
      A: Yes.
      ifs sjs if! S¡« í¡*
      Q: Could you read them when you were signing them?
      A: No., I couldn’t read them____ He had his hand over the top of the paper.

      . Recognizing that the Code of Professional Conduct does not have the force of substantive law, we note that Murasko's own testimony reveals that his conduct may have fallen below the standards required of an attorney. Having practiced law for 38 years, Murasko should have understood the significance of fully informing his client of his legal rights, of maintaining communication with his client, and of avoiding potential conflicts. See In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984).


author: POPOVICH, Judge:

text:
    677 A.2d 335
    COMMONWEALTH of Pennsylvania, Appellee, v. Keith D. BANKS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 21, 1996.
    Filed May 22, 1996.

      Jeffrey W. Stover, State College, for appellant.
    Robert B. Stewart, III, District Attorney, Huntingdon, for Commonwealth, appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Huntingdon County on February 21, 1995, following appellant’s conviction on charges of murder in the second degree, robbery, aggravated assault and conspiracy. Herein, appellant contends that a new trial is warranted for the following reasons: 1) During closing argument, the prosecutor improperly labelled appellant a “killer,” referred to appellant’s post-arrest silence, and made numerous statements of personal opinion; 2) The lower court erred in granting the Commonwealth’s challenges for cause as to potential jurors Imperoli and DiFrancesco; 3) The lower court erred in refusing to charge the jury on involuntary manslaughter; 4) The lower court erred in permitting Nathaniel Fortson to testify in regard to appellant’s purchase of the murder weapon; and 5) The lower court erred in refusing to charge the jury on “special scrutiny” in regard to the testimony of Nathaniel Fortson. We affirm.

The relevant facts in this case are as follows: On February 1, 1994, appellant, Winston Branche, Keith Fortson, Bill Loner, Andre Epps and an undetermined individual planned a robbery. The men planned to rob Charles Brumfield and Aaron Ford. The men believed that Brumfield and Ford were drug dealers from Chambersburg, Pennsylvania, who were selling illegal narcotics in Mount Union Borough, Huntingdon County. While planning the robbery, it was decided that appellant, Fortson and Branche would go to the Elks Club in Mount Union Borough under the guise of wanting to purchase narcotics. It was further decided that the others would attempt to lure Brumfield and Ford to the Elks Club under the ruse of a potential sale.

On that same day, appellant, Fortson and Branche went to the Elks Club and awaited the arrival of Brumfield and Ford. After waiting some time for the arrival of the victims and the rest of the group, the men became impatient and went in search of the victims. After being unable to find them, they returned to the Elks Club.

At approximately 5:00 p.m., the victims arrived at the Elks Club of their own accord. The men, including appellant, approached the victims who had remained inside of their automobile. After some discussion as to the price of the narcotics, appellant pulled out a gun, cocked it, pointed it at the victims and said, “Give me all your shit.” Ford, who was sitting in the driver’s seat, attempted to drive away from the scene. Appellant shot into the automobile twice. The first bullet injured Ford’s shoulder and then entered Brumfield’s chest. The second bullet entered the automobile and became embedded in the front passenger’s seat, missing both victims.

After being shot, Ford drove directly to the Mount Union Police Department and reported the shooting to the police. Both victims were transported to the J.C. Blair Hospital in Huntingdon County. While Ford recovered from his gunshot wound, Brumfield died from his wound shortly after his arrival at the hospital.

Following the shooting, appellant and his co-conspirators were arrested by the police. Following a jury trial, appellant was found guilty on the charges of murder in the second degree, robbery, aggravated assault and criminal conspiracy. He was sentenced on February 21, 1995, to life imprisonment. Appellant filed post-verdict motions which were denied by the lower court. This appeal followed.

Appellant’s first argument is that the prosecutor made numerous improper and prejudicial remarks during his closing argument to the jury. The law pertaining to closing argument is well-settled in this Commonwealth.

[Generally,] [a] prosecutor’s remarks during closing argument will seldom mandate a new trial. ‘Even where the language of a prosecutor is intemperate, uncalled for and improper, a new trial is not required unless its unavoidable effect would be to prejudice the jury, forming in their minds, fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.’

Commonwealth v. Ritter, 419 Pa.Super. 430, 615 A.2d 442, 451 (1992), appeal denied, 535 Pa. 656, 634 A.2d 220 (1993) (citations omitted). “In making such a judgment, we must not lose sight of the fact that the trial is an adversary proceeding....” Commonwealth v. Rainey, 540 Pa. 220, 656 A.2d 1326, 1334 (1995) (citation omitted). A prosecutor must have latitude to advocate the Commonwealth’s cause. Commonwealth v. D’Amato, 514 Pa. 471, 526 A.2d 300 (1987). That latitude includes the right to argue all fair deductions from the evidence with a certain degree of “oratorical flair.” Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178 (1988). “A prosecutor’s remarks fall within the ambit of fair comment if they are supported by evidence and they contain inferences which are reasonably derived from that evidence.” Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101, 1109 (1988). Furthermore, the “prejudicial effect of the prosecutor’s remarks must be evaluated in the context in which they occurred.” D'Amato, 526 A.2d at 309 (citation omitted). “A criminal conviction is not to be ... overturned [lightly] on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.” Id., 526 A.2d at 310.

Appellant argues that the following remarks, which were made by the prosecutor during closing argument, deprived him of a fair trial:

This trial is about Keith Banks shooting Aaron Ford and about Keith Banks killing Charles Brumfield and being liable for the death of Charles Brumfield on two different theories. But this trial is about robbery, it’s about murder, and it’s about greed. Keith Bank’s greed for drugs and money and what he was willing to do. He was willing to rob. He was willing to kill.
N.T. 9/28/95 p. 80 (emphasis added).
Let’s see what there is no dispute about. Aaron Ford was shot and Charles Brumfield was killed February 1, 1994. No dispute about that. They got to the police station just a little bit after 5:00 p.m. There is no dispute about that. And Aaron Ford said to Officer Haines, he did not know the name of the guy that shot him at 5:00 p.m. All he knew was that he was very big. Well you look at this defendant sitting there at that table. Is he very big? Yes, he certainly is. He is so big that his green coat has a tag in it XXL. That is his coat. That is not Keith Fortson’s coat. That is his coat. He is a big guy. He is so big he wears a double XXL coat. That’s the guy that shot Aaron Ford and Charles Brumfield.
N.T. 9/28/95 p. 84 (emphasis added).
Keith Hanks is the one who said I can’t go anywhere in Branche’s apartment. And he is the one who told Keith Fortson, who said he wanted to see his baby before he went to jail. This defendant was involved in a crime as a principal or as an accomplice so he is guilty of second degree murder. He was the trigger man.
N.T. 9/28/95 p. 104 (emphasis added).
But Keith Banks has done what the evidence from this witness stand shows he has done, shows you that he is a dangerous man. Puts his own wants and his own needs above all other. He got other people involved in this crime. And he broke two of our oldest laws. Not to steal and not to kill. This trial has been about protecting his rights. He has had a fair trial. Everybody here has seen to that. But as Keith Banks sits there, he is a killer. The evidence proves that out.

N.T. 9/28/95 pp. 106-107 (emphasis added).

Here, the nature of the statements and the context in which they were made convince us that appellant was not prejudiced. The prosecutor’s remarks were supported by the evidence, contained inferences which were reasonably drawn from the evidence and were not so prejudicial as to make it impossible for the jury to render a true and proper verdict. The record reveals that three eye witnesses to the shooting testified that appellant was the individual who shot Brumfield and Ford. We note that it is proper for the prosecutor to argue that the evidence proves that the defendant is guilty of the charges in the indictment. Rainey, supra. Moreover, appellant’s claims of “prosecutorial misconduct ignore the fact that we have found far more graphic comments to be appropriate on several prior occasions.” Rainey, 656 A.2d at 1335. See, e.g., Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993) (appropriate to argue that murder was “chilling” and that appellant “blew'that little girl’s brains out” and “wiped out three generations of people”); Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993) (“close the eyes of the dead”); Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991) (argument that victim was “carved up like a cheap piece of tenderloin,” and that defendants had “ice water running through their veins”); Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986) (referring to defendant as an “executioner” not prejudicial). In light of these precedents, appellant’s claims provide no basis for relief.

Appellant’s next claim of prosecutorial misconduct is that the prosecutor improperly commented on his post-arrest silence. Specifically, appellant claims that the following comment made by the prosecutor during closing argument was impermissible:

This is an example of what is called direct and circumstantial evidence. When I left the courtroom for lunch on Tuesday, I saw it snowing. That’s direct evidence that it was snowing. But if you come into this courtroom and this room has no windows and the ground is dry had you come in and later when you come out there is snow on the ground and the people are shoveling, scraping, salting, the cars have their lights on and wipers on, that is circumstantial evidence that it snowed while you were here.
And circumstantial evidence consists of facts which point to the existence of other facts. Those first facts are combined with sound thinking and common sense. You use circumstantial evidence every day in your lives. And to us it’s a tremendous help in criminal cases, especially when the crime is committed in secret or when the criminal does not admit his guilt.

N.T. 9/28/95 p. 94.

While appellant is correct in asserting that the Commonwealth is precluded from asking the jury to draw an adverse inference from a defendant’s post-arrest silence, his reliance thereon is misplaced in this case. See Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992). Here, viewing the prosecutor’s comment in the context in which it occurred, it is clear that the prosecutor was not commenting on appellant’s alleged post-arrest silence. Rather, the purpose of the prosecutor’s comment was to explain the concept of circumstantial evidence to the jury. From the prosecutor’s comment, the jury could have inferred that circumstantial evidence is helpful in determining whether an accused, who has not admitted guilt, has committed a crime. Clearly, prior to the prosecutor’s comment, the jury was well aware that appellant had not admitted that he was guilty in this case. Moreover, we note that the record reveals that the jury was informed that in fact appellant was not silent after he was arrested. Two police officers testified at trial that following appellant’s arrest he stated that he was at the scene of the robbery but that he was not the shooter. Also, in his closing argument, defense counsel referred to statements made by appellant to police following his arrest. Accordingly, we cannot conclude that the jury here could have inferred from the prosecutor’s comment that appellant had invoked his right to remain silent and that an adverse inference could be drawn therefrom.

Appellant’s final assertion of prosecutorial misconduct is that the prosecutor’s closing argument was replete with improper personal references, and that the cumulative effect of these references was highly prejudicial. Specifically, appellant argues that it was improper for the prosecutor to preface his arguments with the words “I argue.” “While it may have been more prudent for the prosecutor to refrain from using the first person, we emphasize that not every intemperate remark requires a new trial.” Commonwealth v. Hill, 378 Pa.Super. 562, 549 A.2d 199, 204 (1988) (citation omitted). Reversible error exists only where the cumulative effect of any improper remark so prejudices the jury as to prevent a fair trial. Hill, supra. Here, we find that the prosecutor’s use of the words “I argue” in his closing statement were not expressions of personal belief. Rather, the remarks were merely meant to urge the jury to make a fair inference from the facts adduced during the trial. See Commonwealth v. Martin, 273 Pa.Super. 88, 416 A.2d 1102 (1979).

Appellant further argues that throughout the prosecutor’s closing argument, he repeatedly made personal opinions regarding the credibility of witnesses. Specifically, appellant alleges that it was improper for the prosecutor to state the following: 1) “Aaron Ford told you the truth about two essential points, that he got shot and who shot him;” 2) “Trooper Schrock’s testimony is credible;” 3) “[Witness Ripple] ... stammered and stuttered his way through it, but he told the truth.” After a careful review of the record, we find that appellant failed to object to these statements made by the prosecutor. Accordingly, appellant has waived any error as to these statements on appeal.

Appellant’s next contention is that the lower court erred in granting the Commonwealth’s challenges for cause as to potential jurors Imperoli and DiFrancesco. We disagree.

The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanors. It must be determined whether any biases or prejudices can be put aside on proper instruction of the court. A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions. The decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion.

Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811, 818 (1985) (citations omitted).

Appellant first argues that the lower court improperly disqualified potential juror Imperoli. The record reveals that Imperoli testified as follows under voir dire questioning by the Commonwealth:

Q: Miss Imperoli, when we were in court, you were asked a question about whether or not you could give a fair trial both to the Commonwealth and this defendant, and you were asked if you had any reservations about that to stand up. And I recall that you did stand up.
A: Yes, I did.
Q: Can you explain, ma’am, what your problem would be?
A: Yes. I teach at Mount Union Elementary School, and I remember Keith when he was a student at that school. I had his brother in my classroom. I just don’t know if I would be able to find him guilty. I really have reservations. I would like to be fair to your side also. I feel I don’t know if I could be impartial. I certainly would try to be. But in the back of my mind I don’t know if I would still think of him as a child I knew.
Q: Do you therefore have doubts regardless of what the evidence would be that you could be a fair and impartial juror to both sides?
A: Yes.
Q: That would be true regardless of what evidence you heard?
A: Probably not regardless of the evidence, but I mean I say one thing, but in my subconscious I don’t know.

N.T. 9/28/95 pp. 1-2. From this exchange, we find that the lower court did not abuse its discretion in determining that Imperoli would not have been an impartial juror. We note that where, as here, a potential juror indicates that she cannot be an impartial juror, it is the lower court’s function to assess the credibility and demeanor of the potential juror. Commonwealth v. Impellizzeri, 443 Pa.Super. 296, 661 A.2d 422 (1995). In its opinion, the lower court indicates that Imperoli “made it clear that by her appearance that she did not wish to be a juror in this case. To be blunt, Mrs. Imperoli was noticeably uncomfortable, a condition we’re certain ... emanated from her acquaintanceship with Keith Banks.” Lower Court Opinion pp. 28. We will not reverse this finding on appeal.

Appellant’s next argument is that the lower court improperly disqualified potential juror DiFrancesco. This juror was excused by the lower court because the defense counsel had represented her within the last five years. The record indicates that DiFrancesco had been a witness to a robbery approximately five years ago and that defense counsel had represented her in that matter. Since it was the lower court’s blanket policy to excuse all potential jurors who had been represented within the last five years by any attorney involved in the case, the lower court granted the Commonwealth’s challenge for cause. We find that this was error.

It is well-established that “[a] remote relationship to an involved party is not a basis for disqualification where a prospective juror indicates during voir dire that he or she will not be prejudiced.” Commonwealth v. Berrigan, 369 Pa.Super. 145, 535 A.2d 91, 98 (1987) (citation omitted). This concept is illustrated by a number of cases. One of these is Commonwealth v. Phillips, 398 Pa.Super. 58, 580 A.2d 840 (1990). In Phillips, we held that it was proper for a lower court to refuse to disqualify a potential juror, a retired police officer, who knew the assistant district attorney trying the case. Because the juror testified that he would be a fair and impartial juror, we held that he was properly not excused for cause.

In Berrigan, supra, we held that it was proper for the lower court to refuse to disqualify a juror who testified that he would be an impartial juror, even though he had a low opinion of defense counsel.

Here, DiFrancesco unequivocally testified that the fact that she had been represented previously by defense counsel would not influence her ability to be fair and impartial. Yet, she was still disqualified by the lower court on the basis that she had been represented by defense counsel within the last five years. We find that based on prior case law, the relationship between DiFrancesco and defense counsel was not such a close relationship that prejudice should have been presumed. Accordingly, in light of the fact that the juror displayed no likelihood of prejudice by her conduct or answers to questions, it was error for the lower court to grant the Commonwealth’s challenge for cause. See Colson, supra.

Having concluded that the grant of the challenge for cause was error, we must now determine whether it is necessary to award a new trial. Appellant argues that because the lower court improperly granted the Commonwealth’s challenge for cause as to DiFrancesco, the Commonwealth was given an advantage over him by-affording it an extra peremptory challenge. However, the record reveals that the Commonwealth did not exhaust all of its peremptory challenges. Therefore, assuming arguendo that the Commonwealth would have used one of its peremptory challenges to excuse DiFrancesco, the Commonwealth would still have had peremptory challenges remaining upon the conclusion of voir dire. Accordingly, we find that the trial court’s abuse of its discretion in excusing juror DiFrancesco without cause is harmless error and does not warrant the granting of a new trial.

Appellant’s next contention is that the trial court erred in refusing to charge the jury on involuntary manslaughter. The jury in this case did receive instructions on first degree murder, second degree murder and third degree murder. Defense counsel requested a jury instruction on involuntary manslaughter but the lower court denied it.

Since our supreme court’s decisions in Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980), it has been settled that “in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict.” Commonwealth v. Long, 397 Pa.Super. 140, 579 A.2d 970, 971 (1990) (citations omitted). Appellant contends that the evidence offered at trial would have supported a verdict for involuntary manslaughter. We disagree.

Viewing the evidence in a light most favorable to appellant, the record discloses the following: At some point on February 1,1994, during the discussion between appellant and the victims seated in their automobile, appellant pulled out a gun, pointed it in the face of Ford and told him to give him the money and drugs. Instead of relinquishing the requested items, Ford stomped on the automobile’s gas pedal in an attempt to flee. Eyewitness testimony established that appellant then fired two shots in the automobile.

“Under 18 Pa.C.S. § 2504(a), involuntary manslaughter requires evidence that the killing resulted from the ‘doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner.’” McCloskey, 656 A.2d at 1374 (citation omitted). Appellant argues that in this case, the jury could have inferred that the gun was accidentally fired by appellant, that is, the victim’s automobile bumped appellant’s hand which caused the gun to be fired. We agree with the lower court’s conclusion that there was absolutely no testimony from any source that the victim’s automobile had bumped anyone’s hand or had came into contact with anyone’s body. Also, there was no testimony that the weapon was fired accidentally. In fact, at trial, appellant’s defense was that one of his co-defendants had shot the victims, not that the shooting was accidental. Further, appellant’s argument that the first bullet was shot when his hand was bumped by the victim’s automobile discounts the testimony of eyewitnesses that a second shot was fired after the automobile had pulled away. The firing of a second shot strengthens our decision that the jury could not have inferred that the shooting was merely reckless or grossly negligent. Accordingly, the lower court did not err in refusing to instruct the jury on involuntary manslaughter.

Appellant’s next contention is that the lower court erred in permitting Nathaniel Fortson to testify as to an alleged prior bad act by appellant. Specifically, appellant argues that the lower court erred in permitting Fortson to testify that he saw appellant purchase the murder weapon in exchange for cocaine. We disagree.

“Unquestionably, the admission or exclusion of evidence is within the sound discretion of the trial court, and the admission of such evidence is justified so long as the need for the evidence outweighs the potential prejudice.” Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062, 1069 (1995) (citations omitted). Our supreme court recently addressed the admissibility of other crime evidence in Bracey as follows:

The often-stated rule in Pennsylvania governing the evidence of other crimes is that such evidence is not admissible solely to show a defendant’s bad character or propensity for continuing criminal acts. However, not all references which may indicate prior criminal acts warrant reversal. Mere passing references to prior criminal activity will not require reversal unless the record illustrates definitively that prejudice resulted from the record. In addition, it is also well-established that evidence of other crimes may be admitted where there is a legitimate evidentiary purpose for such evidence.

Id., 662 A.2d at 1069 (citations omitted). “[S]ueh evidence is generally admissible where it tends to establish motive, intent, absence of mistake or accident, commission of the crime, [identity of the person charged with commission of the crime,] or where it was part of a chain or sequence of events which formed the history of the case.” Commonwealth v. Williams, 541 Pa. 85, 660 A.2d 1316, 1321 (1995) (citations omitted). See Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994).

Appellant claims that the challenged evidence does not fall within any of the exceptions to the general rule concerning the admissibility of other crimes evidence. Appellant further claims that even if the evidence does fall within one of the exceptions, its prejudice outweighed its probative value. We disagree.

As discussed previously, appellant’s defense at trial was that one of his co-defendants had shot the victims, and that he was not the “trigger man.” Fortson’s testimony that he witnessed appellant purchase the murder weapon was relevant in establishing that appellant was in fact the owner of the murder weapon and that he was the shooter. It was logical for the lower court to conclude that Fortson’s testimony establishing that appellant purchased the weapon would naturally tend to show that appellant was the person who had used the weapon to commit the crime.

We further note that evidence of appellant purchasing the murder weapon was part of the chain or sequence of events which became part of the history of this case and formed part of the natural development of the facts. See Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988). Appellant’s purchase of the murder weapon was the one event from which numerous other events flowed. For example, in addition to the testimony of Fortson that appellant purchased the murder weapon, the Commonwealth introduced the testimony of Mr. Ripple, who testified that on the day of the murder he saw appellant with a gun protruding from his pants pocket. Rip-pie’s description of the gun in appellant’s pants pocket was similar to Fortson’s description of the gun which he saw appellant purchase. The Commonwealth also presented witnesses who testified that appellant used this same gun to shoot the victims, and that a fisherman had found the gun in the Juniata River shortly after the incident at issue. Accordingly, we find that the lower court did not abuse its discretion in permitting Fortson to testify that appellant had purchased the murder weapon in exchange for cocaine.

Appellant’s final contention is that the lower court erred in refusing to charge the jury on “special scrutiny” in regard to the testimony of Fortson. Specifically, appellant argues that the jury should have been instructed that Fortson had “struck a bargain” with the Commonwealth and offered to testify against appellant in exchange for early release from jail. Appellant requested that the lower court utilize 4.06 of the Pennsylvania Standard Criminal Jury Instructions. That suggested charge provides as follows:

4.06 (Crim) CERTAIN TESTIMONY SUBJECT TO SPECIAL SCRUTINY
You should examine closely and carefully and receive with caution the testimony of (_) (any witness) if you find that he (was previously hypnotized) (admitted that he committed perjury at another trial) (_).

Appellant argues that no other “corrupt and polluted source charge” was applicable to Fortson’s situation, and, thus, the lower court should have “filled in the blanks” of Section 4.06 as desired by appellant. Appellant further argues that the lower court’s failure to do so was an abuse of its discretion. We do not agree. Our review of the charges given by the lower court reveals a complete and explicit explanation dealing with the credibility of witnesses. The lower court charged the jury on the credibility of accomplices, the credibility of prior inconsistent statements and the credibility of witnesses with prior convictions. The court also gave a general charge on the biases of witnesses and the “False in one, false in all” rule. Accordingly, we find that the lower court did not abuse its discretion in refusing to give appellant’s specific requested charge.

For all of the aforementioned reasons, we affirm the lower court’s judgment of sentence.

Affirmed.

      . 18 Pa.C.S.A. § 2502(b).

      . 18 Pa.C.S.A. § 3701(a)(l)(i).

      . 18 Pa.C.S.A. § 2702(a)(1).

      . 18 Pa.C.S.A. § 903.

      . Post-sentencing motions are now optional under the amended Rules of Criminal Procedure; they are no longer necessary to preserve an issue for appellate review. Commonwealth v. Garcia, 443 Pa.Super. 414, 661 A.2d 1388, 1392 n. 9 (1995). Since the determination of guilt in this case occurred on or after January 1, 1994, the new rules are applicable to this case. Id. However, under the amended Rules, a timely objection at trial is still required in order to preserve the issue for appellate review. Id.

      . During voir dire, the lower court judge disclosed the following: “I have made it a practice — and I’m going to say it for the record — that I have not — in the past I have not permitted jurors to sit who have been represented by any of the attorneys in the case within five years, and I'm going to stick to that.” N.T. 9/28/95 p. 8. We find that such a policy by the lower court is improper. Like all of the courts of common pleas in this Commonwealth, Huntingdon County is a part of a state-wide court system consisting of unified' rules and procedures. As precedent clearly dictates, decisions as to potential jurors are to be determined on a case by case basis utilizing the standards as set forth in this opinion and elsewhere. It is error for the lower court to decide in advance to disqualify all potential jurors who have been represented by any of the attorneys in the case within the last five years without first examining the relationship on a case by case basis.

      . In determining the quantum of evidence necessary to "support a verdict,” and the source from which it should be derived, we are required to view the evidence in the light most favorable to the defendant. Commonwealth v. McCloskey, 441 Pa.Super. 116, 656 A.2d 1369, 1372 n. 1 (1995) (citations omitted).


author: CAVANAUGH, Judge:

text:
    677 A.2d 842
    COMMONWEALTH of Pennsylvania v. Truman Dallas BEAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1995.
    Filed May 6, 1996.

      Gene P. Placidi, Erie, for appellant.
    Daniel T. Reimer, Assistant District Attorney, Warren, for Commonwealth, appellee.
    Before CAVANAUGH and JOHNSON, JJ., and CERCONE, President Judge Emeritus.
   CAVANAUGH, Judge:

Allegations of sexual abuse of Adam Bean, appellant’s eleven year old mildly retarded son, led to charges against appellant of involuntary deviate sexual intercourse, corruption of minors, indecent assault and incest. After a jury convicted appellant of these charges, the Honorable Paul H. Millin of the Court of Common Pleas of Warren County sentenced him to five to ten years imprisonment. Appellant appeals from the judgment of sentence, contending that the trial court erred in admitting hearsay statements at trial under a statutory exception to the hearsay rule. After carefully reviewing the record, we vacate the judgment of sentence, reverse and remand for a new trial.

The relevant facts which may be deduced from the record are as follows. Mr. Bean married Adam’s mother, Dawn Keener, in September, 1979. They divorced approximately eight years prior to trial. Adam, the only child of their marriage, was diagnosed as mildly retarded and epileptic. Under a custody agreement, Adam lived with his mother, who was remarried in June, 1993. He visited his father from nine a.m. to four p.m. on Sundays. By 1993, Adam, who wanted to spend more time with his father, started staying overnight at his father’s house on many weekends.

The alleged incident of sexual abuse occurred on Saturday, June 26, 1993. Adam’s mother testified at trial to the following sequence of events which occurred after Adam returned to her house from spending the weekend at his father’s house. Adam rode his bike for about thirty minutes. After riding his bike, he complained to his mother that his “butt hurt.” He initially told his mother that the pain resulted from his bike ride. His mother recommended that he take a shower. After taking a shower, Adam asked his mother to examine his buttocks. His mother noticed a round red mark around the anal area and again asked him how he hurt it. He first replied that he hurt it on his bike. He then started crying and told her that his father put his finger in his butt.

Later that evening Adam’s mother overheard him telling his stepfather, Randy Keener, that his father “put his wiener in' his butt.” They took him to the emergency room at Warren General Hospital that evening. At approximately 10:45 p.m. Charlotte Uber, a casework supervisor from the Department of Human Services, spoke with Adam at Warren General Hospital. Charlotte Uber testified at trial that she and Adam were drawing pictures when Adam turned to her and asked, “did you know that my dad put his wiener in my butt?” He then said, “Dad touched my wee-wee and I told him I didn’t like it.”

On Monday, July 28, 1994, Adam’s family doctor, David McConnell, Jr., called Connie Zaffino, also a caseworker at Warren County Child and Youth Services, and asked her to speak with Adam. She testified at a preliminary hearing that Adam told her that his father put his wiener in his butt, that his father put neosporin on it to make it stop hurting, but that it didn’t stop hurting.

Adam also spoke with his family doctor of eight years on Monday. Doctor McConnell testified regarding this interview as follows:

He [Adam] told me that while he was visiting at his father’s that an incident occurred in the bedroom in which his father told him to take his pants off and underpants. He used the word “wiener” for penis and he said that his father touched his wiener and made him touch his father’s wiener. He said that his father’s wiener got big and that he put it in his butt, he said that he pushed it in and out and it hurt a lot and that some white stuff came out.

The Commonwealth requested a preliminary hearing to establish whether the statements made by Adam about the sexual abuse to Dawn Keener, Randy Keener, Charlotte Huber, Doctor David McConnell, Jr. and Connie Zaffino were admissible at trial pursuant to 42 Pa.Cons.Stat.Ann. § 5985.1, the tender years exception to the hearsay rule. Section 5985.1 provides, in pertinent part:

General Rule — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal proceeding if:
(1) The court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability.
(2) The child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness and there is corroborative evidence of the act.

Id.

Instantly, after conducting an in camera hearing, the trial court deemed Adam incompetent and, therefore, unavailable to testify as a witness. See Commonwealth v. Hanawalt, 419 Pa.Super. 411, 615 A.2d 432, 433. (1992) (child incompetent to testify is “unavailable” for purposes of § 5985.1). After the in camera hearing, the trial court also determined that the statements to Dawn Keener, Randy Keener, Charlotte Huber and Doctor David McConnell, Jr. were relevant and contained a “sufficient indicia of reliability” to be admitted at trial. The trial court further found that the statements to Connie Zaffino did not meet the requirements for admissibility under § 5985.1.

On appeal, appellant’s sole claim is that the trial court improperly determined these statements to contain a “sufficient indicia of reliability,” particularly since the trial court also deemed Adam, the declarant, incompetent as a witness. After careful review, we find that the trial court erred in admitting these statements under the tender years exception to the hearsay rule.

Hearsay is generally inadmissible at trial unless it falls into one of the exceptions to the hearsay rule. Commonwealth v. Smith, 436 Pa.Super. 277, 286, 647 A.2d 907, 911 (1994). In Commonwealth v. Haber, 351 Pa.Super. 79, 85, 505 A.2d 273, 275 (1986), we noted:

The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact. Exceptions have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule.

Id.

Any statement admitted under § 5985.1 must possess “sufficient indicia of reliability,” as determined from the time, content and circumstance of its making. Therefore, this statute contemplates the inherent untrustworthiness of hearsay evidence and requires a firm foundation for any hearsay admitted under its terms. Moreover, this Court determined that properly admitted evidence under this hearsay exception possesses “particularized guarantees of trustworthiness” and, therefore, does not violate the accused’s right to confront witnesses under the state or federal constitution.

In Commonwealth v. Hanawalt, 419 Pa.Super. at 422, 615 A.2d at 438, this Court looked to the United States Supreme Court’s decision in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) to determine when an out-of-court statement contains the requisite “particularized guarantees of trustworthiness” to be admissible although the declarant does not testify at trial. The Hanawalt court stated:

Although the Supreme Court declined to endorse a mechanical test for determining when hearsay statements made by a child witness in child sexual abuse cases possess “particularized guarantees of trustworthiness” under the Confrontation Clause, it did provide that the main consideration in making such a determination is whether the child declarant was particularly likely to be telling the truth when the statement was made. The Supreme Court then identified a non-inclusive list of factors to consider when making such a determination. Such factors include, but are not limited to: 1) the spontaneity and consistent repetition of the statement(s); 2) the mental state of the declarant; 3) the use of terminology unexpected of a child of a similar age; and, 4) the lack of motive to fabricate.

Id. (citing Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

In this case, the trial court found Adam to be incompetent to testify at trial because he could not distinguish between truth and falsity. The trial court expounded its reason for deeming Adam incompetent to testify at trial in its opinion dated February 7, 1995, stating that Adam attempted to please adults to the extent that he stated what he believed the adults wanted to hear. In deeming Adam incompetent to testify, the trial court also relied on Adam’s statement that it is sometimes better to lie than to tell the truth because sometimes the truth hurts.

In its opinion discussing the admissibility of Adam’s statements, the trial court analyzed the individual statements as follows:

Next, the Court must determine whether the time, content and circumstances of the statements provide sufficient indicia of reliability. The alleged assault took place on Saturday, June 26, 1993, in the evening. On Sunday, when the child was returned to his mother, shortly after returning home he made the complaint that his butt hurt and thereafter disclosed to his mother and his stepfather what had occurred. The Court heard the testimony from the mother as to the nature of the questioning which occurred. The questioning was non-aecusatory and non-suggestive in nature. This was the first disclosure made by the child of a traumatic event which had occurred only the prior evening. The child spoke in terms which were consistent with his normal speech. Therefore, the Court finds that there is sufficient indicia of reliability and the statement made to Dawn Keener and her husband on Sunday, June 27, 1993, is admissible.
Following the statement Mrs. Keener made arrangements to take the child to the emergency room at the hospital. A few hours elapsed as Mrs. Keener called the hospital and told them the circumstances and wanted to await a time when the emergency room would not be crowded. The statement to Charlotte Huber was made at the hospital in an interview where the child drew a picture of his father and discussed the incident. The time that elapsed between the disclosure to his mother and the interview at the hospital is not significant in amount nor occurrence because the mother testified that there was very little further discussion with the child following his initial disclosure to her. The child’s statement to Charlotte Huber at the hospital was consistent with that made to the mother and stepfather; therefore, the Court finds there is sufficient indicia of reliability and the statement is admissible.
The statement to Dr. David McConnell, Jr., and Connie Zaffino was made at Dr. McConnell’s office on Monday, June 28. It is significant that Dr. McConnell had been the child’s doctor for some time and that the child apparently trusted the doctor and understood that he was with the doctor to receive medical treatment. The statement to the doctor and Connie Zaffino was consistent with the statements previously made. The Court finds there is sufficient indicia of reliability and the statement is admissible.
The Commonwealth seeks to introduce an additional statement made by the child to Connie Zaffino at an interview in here office at the Department of Human Services on June 30, 1993. There was no testimony as to whether or not there had been additional questioning of the child during the period between the statement of Dr. McConnell and the statement of June 30, and the statement is removed in time from the occurrence of the act by four days. The Court therefore finds that the Commonwealth had not met its burden of proof to show sufficient indicia of reliability, and the Court holds the conversation of June 30 between the child and Connie Zaffino is not admissible.

Trial Court Opinion, Feb. 9,1995.

Although the trial court made a determined effort to evaluate the hearsay testimony under § 5985.1, the court’s inquiry was inadequate since it failed to consider the effect of the child’s incompetency upon declarations to the witnesses. Also, since the court found that Adam has a tendency to tell adults what he believes they want to hear, the court should have more scrupulously inquired as to whether or not the child was subjected to any suggestive interrogation which may have led the child to answer in conformity with the interrogator’s expectations. Therefore, we grant appellant’s request for a new trial, so that the trial court can undertake a more searching evaluation under § 5985.1.

Judgment of sentence vacated, order reversed and case remanded for new trial. Jurisdiction relinquished.

      . All charges merge with involuntary deviate sexual intercourse for sentencing purposes.

      . Adam's mother and father both agreed to this arrangement.

      . In a later opinion, dated June 20, 1995, the trial court also notes that one of the statements, presumably Adam’s statement to Dr. McConnell, may be admissible under the treating physician exception to the hearsay rule.

      . In Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) the United States Supreme Court set forth the standard for admitting out-of-court statements made by unavailable witnesses, as follows:
      We noted[, in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)] that the Confrontation Clause "operates in two separate ways to restrict the range of admissible hearsay.” "First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment established a rule of necessity. In the usual case ... the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” ... Second, once a witness is shown to be unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” (Citations omitted.)

        Id.

      In Commonwealth v. Hanawalt, supra, this Court further noted:
      [B]ecause the statute [§ 5985.1] is a relatively new creation in this Commonwealth, it is not accorded the longstanding judicial and legislative experience of a firmly rooted hearsay exception. Thus, for 42 Pa.C.S. § 5985.1 to pass muster under the Confrontation Clause, the evidence admitted under section 5985.1 must possess “particularized guarantees of trustworthiness” as adduced from the totality of the circumstances surrounding the out-of-court statement made by the child victim. The language of 42 Pa.C.S. § 5985.1, specifically “(1) The court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability” (emphasis added), clearly fulfills these mandates. Accordingly, we find that 42 Pa.C.S. § 5985.1 mirrors the requirements asserted by Ohio v. Roberts, supra.

        419 Pa.Super. at 418, 615 A.2d at 435.

      . In Idaho v. Wright, supra, the Supreme Court refused to find that a child’s out-of-court statements are per se unreliable based on the fact that the child is deemed incompetent to testify at trial. Nevertheless, a child’s incompetency at time of trial may be relevant to determining whether the child’s earlier statements possessed "particularized guarantees of trustworthiness.”

      . We note that some of the statements may be admissible under the excited utterance exception or the treating physician exception to the hearsay rule in the new trial. See Commonwealth v. Hanawalt, 419 Pa.Super. 411, 615 A.2d 432, 433 (1992).


author: TAMILIA, Judge.

text:
    677 A.2d 846
    COMMONWEALTH of Pennsylvania, Appellant, v. Samuel TAYLOR.
    Superior Court of Pennsylvania
    Submitted Jan. 9, 1996.
    Filed May 7, 1996.

      Before: TAMILIA, FORD ELLIOTT and EAKIN, JJ.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for the Commonwealth, appellant.
    Rosalyn G. McCorkle, Pittsburgh, for appellee.
   TAMILIA, Judge.

The Commonwealth presents this appeal from the July 26, 1995 Order granting appellee’s motion to suppress the cocaine recovered from him during a warrantless arrest and search. The facts of this case are as follows.

On the afternoon of August 12, 1991, Constable Daniel M. Certo arrived at an apartment on Thomas Boulevard in Pittsburgh in order to evict appellee for failure to pay rent. Constable Certo notified appellee of the eviction and appellee began to pack his belongings. As he did so, the constable noticed appellee place a plastic bag containing smaller bags of a white substance in his right, rear pocket. The constable also noticed appellee removing a large sum of prepackaged money from a drawer beneath his bed. Constable Certo then arrested appellee and conducted a search of his person, believing that the plastic bags contained illegal drugs and the money was proceeds from illegal drug dealing activity. Pursuant to the search, 54 small bags of crack cocaine were recovered. Thereafter, appellee was charged with one count of possession of a controlled substance and one count of possession with intent to deliver. Trial was scheduled for May 21, 1992. However, on that date, appellee failed to appear and an arrest warrant was issued. Appellee was arrested the following day and on October 27, 1994, he pled guilty to the offenses charged. He was immediately sentenced to a mandatory term of three (3) to six (6) years’ imprisonment pursuant to 18 Pa.C.S.A. § 7508, Drug trafficking sentencing and penalties. On October 28, 1994, appellee filed a Motion to Withdraw Guilty Plea, which was granted following a hearing on February 3, 1995. Trial was then scheduled for March 23, 1995. On March 10, 1995, appellee filed his Motion to Suppress. The motion was granted by Order dated July 26, 1995 and this appeal followed.

Beneath the veneer of this simple fact pattern is an issue of first impression in this Commonwealth, namely, whether constables are lawfully empowered to make warrant-less arrests for violation of the drug laws. If constables lack such power, as found by the trial court, Constable Certo’s arrest and subsequent search of appellee was illegal, unless privileged on some other basis.

While our appellate courts have not specifically addressed the warrantless arrest powers of constables, our Supreme Court has recently considered the general status of constables under Pennsylvania law. In Re Act 147 of 1990, 528 Pa. 460, 598 A.2d 985 (1991), involved a legislative attempt to place the supervision, training and certification of constables under the judicial branch of our state government. In holding the Act an unconstitutional violation of the “separation of powers doctrine” contemplated by the Pennsylvania Constitution, the Court noted the following with regard to constables:

A constable is an elected official authorized to appoint deputy constables. 13 Pa.C.S. § 1, et seq. A constable is an independent contractor and is not an employee of the Commonwealth, the judiciary, the township or the county in which he works.
Simply stated, a constable is a peace officer. A constable is a known officer charged with the conservation of the peace, and whose business it is to arrest those who have violated it.

Id. at 462-63, 469, 598 A.2d at 986, 990 (citation and footnote omitted).

Thus, according to our Supreme Court, “a constable is a peace officer.” Id. Unfortunately, while Act 147 assists our determination, our case law is silent as to whether a “peace officer” has the power to make a warrantless arrest under the facts of the case. Our Supreme Court’s recent decision in Commonwealth v. Leet, 537 Pa. 89, 641 A.2d 299 (1994), however, is sufficiently analogous to provide a starting point for our analysis.

In Leed, “[t]he issue [was] whether a deputy sheriff has authority in Pennsylvania to make a warrantless arrest for motor vehicle violations committed in his presence.” Id. at 91, 641 A.2d at 300. The trial court had concluded that the deputy sheriff lacked such power and, like the trial court herein, suppressed evidence seized pursuant to what the court considered an illegal arrest. The Commonwealth’s appeal was certified for en banc review by our Court, which affirmed by a vote of six to two the trial court’s conclusion that deputy sheriffs lack authority to enforce the Motor Vehicle Code. Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991).

Our Court en banc began its analysis by discussing 16 P.S. § 1216, supra, which provides that sheriffs and deputy sheriffs “shall perform all those duties authorized or imposed on them by statute.” Id. at 493, 585 A.2d at 1035 (emphasis in original). From this provision, we drew the inference that sheriffs possess only those powers which are “authorized ... by statute.” Id. We then engaged in a thorough review of the Motor Vehicle Code and, citing numerous provisions that refer to “police officers”, found “that the legislature intended to vest police, not sheriffs, with authority to enforce the provisions of the Vehicle Code____ There is no corresponding provision in the Vehicle Code, or in any statute, which authorizes sheriffs or deputy sheriffs to arrest motorists without a warrant.... ” Id. at 493, 495, 585 A.2d at 1035, 1036.

Finally, our Court addressed, as follows, the Commonwealth’s claim that sheriffs possess the common law power to enforce the Vehicle Code:

The Commonwealth would nevertheless have us revert to the common law to find general peace-keeping duties in the sheriff. Based on authority vested in sheriffs and deputy sheriffs by the common law, the Commonwealth argues that sheriffs and deputy sheriffs have inherent power and authority to arrest without a warrant for all crimes, however defined, committed in their presence, including Vehicle Code violations. We are unable to accept this reasoning. In the first place, an attempt to imply power where the same has not been granted by statute would be in direct violation of the legislature’s mandate that sheriffs and deputy sheriffs shall perform the duties imposed by statute.

Id. at 497, 585 A.2d at 1037.

Following our en banc decision affirming the trial court, the Supreme Court granted allocatur. Commonwealth v. Leet, 537 Pa. 89, 641 A.2d 299 (1994). Unlike our Court en banc, which held that the issue must be resolved solely by resort to statute, the Supreme Court began its analysis with an exhaustive review of the powers possessed by sheriffs at common law. Following this review, the Court found:

[T]he common law power of the sheriff to make arrests without warrant for felonies and for breaches of the peace committed in his presence ... [is] so widely known and so universally recognized that it is hardly necessary to cite authority for the proposition ... [Thus], [u]nless the sheriff’s common law power to make warrantless arrests for breaches of the peace committed in his presence has been abrogated, it is clear that a sheriff (and his deputies) may make arrests for motor vehicle violations which amount to breaches of the peace committed in his presence.

Id. at 95-96, 641 A.2d at 303.

As this passage indicates, the Supreme Court completely inverted the analytical framework upon which our en banc decision was based. Where we had found that sheriffs possess only those Vehicle Code enforcement powers which are statutorily set forth, notwithstanding any common law powers, the Supreme Court held that sheriffs may exercise all powers traditionally possessed at common law, except those which our statutory law specifically has abrogated. “In short”, the Court concluded, “it is not necessary to find a motor vehicle code provision granting to sheriffs the power to enforce the code — sheriffs have had the power and duty to enforce the laws since before the Magna Carta; rather, it would be necessary to find an unequivocal provision in the Code abrogating the sheriff’s power in order to conclude that the sheriff may not enforce the Code.” Id. (emphasis in original). Following its determination that sheriffs possess the power to enforce the Vehicle Code, the Court remanded for a determination of whether sheriffs have been adequately trained for such enforcement. Id.

In sum, Leet stands for the proposition that in determining the authority of peace officers we must consider not only statutory powers but also any common law powers which preexisted and exceed those statutory powers. Unfortunately, the trial court herein restricted its review of a constable’s powers to statutory law and therefore made precisely the same mistake as our Court en banc in Leet. In determining that Constable Certo lacked the authority to arrest appellee, the trial court relied on 13 Pa.C.S. § 45, Arrest of offenders in view, which provides as follows:

The policemen and constables of the several boroughs of this Commonwealth, in addition to the powers already conferred upon them, shall and may, without warrant and upon view, arrest and commit for hearing any and all persons guilty of a breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or violating any ordinance of said borough, for the violation of which a fíne or penalty is imposed.

Following its review of this statute, the trial court held:

Looking at the statute on its face, this Court finds that the statute is clear on its face. Constables have authority to arrest on view for certain stated offenses. Constable Certo was at the premises to evict the Defendant, one of the statutory duties he is empowered with. The actions he took, however, were not amongst those set out by statute with which he was empowered. This Court is hard pressed to find case law supporting the Commonwealth’s contention that the constable was statutorily empowered to arrest Defendant without a warrant while on the premises to evict Defendant. Therefore this Court finds no merit to the appeal.

(Slip Op., Little, J., 7/26/95, p. 4.)

Hence, by restricting its review solely to statutory law empowering warrantless arrests, rather than determining whether any statutory law has abrogated already-existing common law powers, the trial court violated the mandate of Leet. It thus falls to us to consider the nature of power possessed by constables at common law.

Initially, we note “[t]he office of constable is not of the same grade and dignity as that attributed” to the common law sheriff considered in Leet. Anderson, A Treatise on the Law of Sheriffs, Coroners and Constables (Dennis & Co., 1941), § 7, p. 5. Further, “[a constable’s] powers are less and his jurisdiction smaller” than those of the sheriff. Black’s Law Dictionary (5th ed. 1979), p. 281. Nonetheless, in light of the lofty status possessed by common law sheriffs, the fact that constables were somewhat less powerful does not conclude our determination of whether Constable Certo possessed the power to make a warrantless arrest of appellee for his violation of the drug laws. Such a determination requires a more thorough review of the historical texts and treatises discussing the common law powers of constables.

Anderson, in his Treatise, supra, § 4, p. 3, states that the term “constable” is “derived from the Latin ‘comes stabuli,’ an officer who regulated all matters of chivalry, tilts, tournaments and feats of arms which were performed on horseback.” Accord, see Blackstone, Commentaries on the Laws of England (Callaghan & Co., 1899), Vol. I, Book I, p. 356. Moreover, at least one historian claims to have uncovered the original oath administered to constables upon their recognition as royal officials by the crown of England. Joan R. Kent in The English Village Constable, 1580-1642 (Oxford 1986), p. 52, states that the oath “specified only that [constables] should exercise the office within their townships, present ‘all mannour of bloodsheddes, assaltes and affreys and outcryes’ against the kings peace, execute all writs and precepts lawfully directed to them, and personally do all in their power to conserve the peace.” Id. at 52 (citing Trotter, Seventeenth Century Life, p. 85.).

Despite the earliest conceptions of constables as mere regulators of games and conservators of the peace, it is beyond question that by the late sixteenth and early seventeenth centuries their duties had expanded considerably. See generally Kent, supra. By this time, Blackstone notes:

The constable ... hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace, committed in his view, and carry him before a justice of the peace. And in case of felony actually committed, or a dangerous wounding, whereby felony is like to ensue, he may upon probable suspicion arrest the felon[.]

Blackstone, Commentaries, supra, at Book IV, p. 292. As with virtually all other aspects of English common law, the office of constable was retained in America prior to and following the Revolution. In speaking of constables in this country, Anderson has stated that “the [modern] constable has all the powers that appertain to his ancient predecessor under the common law.” Treatise, supra at § 7, p. 5. Blackstone has enunciated those retained powers as follows:

A constable in the United States ... may arrest for felony or breach of the peace without warrant, and will be excused from liability in doing so, even though it prove that the supposed offence has not been committed, provided the arrest was made on reasonable grounds of belief. •

Commentaries, supra at Book I, p. 357, n. 1.

Contemporary treatises also have asserted that constables may make warrantless arrests for felonies and breaches of the peace. For instance, 6A C.J.S. Arrest, § 19 For Felony provides:

a. In General
A peace officer may without a warrant arrest one whom he finds attempting to commit, or one who is committing, or has committed, or who he reasonably believes is committing, a felony in his presence or in his view, or when a person has committed a felony, although not in his presence.

Similarly, 5 Am.Jur.2d Arrest, Paragraph 3, By Peace Officers, § 47 provides:

§ 47. Generally
At common law, peace officers were authorized to arrest without warrant felons and persons reasonably suspected of being felons. As conservators of the peace, peace officers also had authority to arrest for offenses less than a felony committed in their presence, at least where a breach of the peace was involved. Thus, a peace officer may arrest without warrant under any conditions where a private person might do so, and also in the following additional cases: (1) reasonable suspicion of felony, whether or not any felony was actually committed, and (2) an affray in the officer’s presence and reasonable suspicion of participation therein, if the arrest is made at once or on fresh pursuit.

Moreover, Restatement, Second, Torts § 121 states:

121. Arrest by Peace Officer Without Warrant [A] peace officer acting within the limits of his appointment is privileged to arrest another without a warrant
(a) under any of the conditions which under the rules stated in [§ ] 119 ... give to a private person the privilege to arrest without a warrant.

Section 119, as referenced by section 121, provides:

119. Arrest Without Warrant by Private Person for Criminal Offense
[A] private person is privileged to arrest another without a warrant for a criminal offense
(b) if an act or omission constituting a felony has been committed and the actor reasonably suspects that the other has committed such act or omission[.]

Thus, since private citizens are empowered to make warrant-less arrests for felonies under section 119, peace officers are also permitted to make such arrests under section 121.

Finally, although finding it inapplicable to the facts at issue, our Court has acknowledged the “general rule” as follows:

A peace officer may, without a warrant, arrest for a felony or for a misdemeanor committed in his presence although the right to arrest for a misdemeanor, unless conferred by statute, is restricted to misdemeanors amounting to a breach of the peace.

Commonwealth v. Pincavitch, 206 Pa.Super. 539, 544, 214 A.2d 280, 282 (1965) (citation omitted).

Based on this review, we find that overwhelming authority supports the proposition that constables possessed the power at common law to make warrantless arrests for felonies and breaches of the peace. Further, complying with the mandate of Leet, we have examined the statutes and found no provision abrogating that power. Hence, since appellee’s possession of a controlled substance with intent to deliver constitutes a felony under 35 P.S. § 780-113(f)(1), we are unable to escape the conclusion that Constable Certo was empowered to arrest appellee. However, since the trial court never reached a determination of probable cause, our finding that Constable Certo possessed the common law power to arrest appellee does not necessarily compel the conclusion that the arrest was legal. Thus, we must remand for a determination of probable cause.

Finally, we note the trial court’s conclusion that constables “should have no greater police powers than private citizens.” (Slip Op., Little, J., 7/26/95, p. 3.) Our historical review of the common law powers possessed by constables also indicates the fundamental principle that “a private person may arrest without a warrant for a felony if the felony has been committed and the private person reasonably suspects that the person arrested is the felon....” Pennsylvania Law Encyclopedia, Arrest, § 5; 5 Am Jur 2d § 56 (“the common law accorded a private person extensive powers to arrest without warrant for felonies and breaches of the peace committed in his or her presence”); see also Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985) (“the conditions required to establish the privilege [of a citizen’s arrest], generally stated, are that a felony has been committed and that the actor reasonably suspects that the person whom he arrests has committed the felony”), and Restatement, Second, Torts § 119, quoted supra.

While our conclusion that constables possess the common law power to make warrantless arrests for felony drug law violations renders unnecessary a consideration of whether Constable Certo’s arrest of appellee also was privileged as a citizen’s arrest, we note the common law arrest powers of citizens to further clarify our instant holding.

Specifically, rather than enlarging the power of constables, our holding today merely recognizes that they possess a power exercised by private citizens since antiquity, the power to make warrantless arrests for felonies. In this sense, our decision is completely consistent with well-established law. See e.g., Restatement, Second, Torts § 121, Comment on clause (a) (“the peace officer has all the privileges of arrest which ... are conferred upon one not a peace officer.”). Thus, our holding avoids the anomalous situation of depriving constables of powers possessed by the ordinary citizenry. Accord, see Commonwealth v. Giles, 14 Adams L.J. 169 (1973); Nash, McCarty, Ball, supra at note 14.

In summary, we hold that constables possess the common law powers to conduct warrantless arrests for felonies and breaches of the peace. Since those powers have not been abrogated by our statutory law, they are retained by the constables of this Commonwealth. Leet, supra. Thus, constables currently possess the power to make warrantless arrests for felony violations of the drug laws. However, under the facts of this case, a finding of probable cause must be made prior to the determination that Constable Certo’s arrest of appellee was legal. Hence, we remand for a determination of probable cause.

Lastly, we note that the Supreme Court in Leet remanded on the following basis:

It has been argued that to protect public safety, anyone who enforces the motor vehicle laws should be required to undergo training appropriate to the duties. It is certainly within the proper function of government and in keeping with the realities of the modern world to require adequate training of those who enforce the law with firearms. Policemen, to whom the legislature has given primary responsibility for enforcement of the motor vehicle code, are required by statute to undergo formal training prior to enforcing the law. We deem this requirement to apply equally to sheriffs who enforce motor vehicle laws. Thus a sheriff or deputy sheriff would be required to complete the same type of training that is required of police officers throughout the Commonwealth.
As the record is incomplete in this respect, we must remand the case for a finding as to whether deputy sheriff Gibbons had completed appropriate law enforcement training, and for further proceedings consistent with this opinion.

Leet, supra at 96-97, 641 A.2d at 303 (footnotes omitted).

We find this rationale applicable instantly. Hence, in addition to determining probable cause, the trial court on remand must also inquire as to whether Constable Certo was adequately trained to address felony drug law violations encountered within the exercise of their duties.

Case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . The money was later determined to be in the amount of $3,401.

      . 35 P.S. § 780-113(a)(16).

      . Id.., § 780-113(a)(30).

      . Our determination of the power of constables to make warrantless arrests requires the assumption, for purposes of this appeal only, that Constable Certo had probable cause to believe appellee was engaged in a violation of the drug laws, since without probable cause the arrest was invalid whether or not Constable Certo possesses the power to enforce the drug laws.

      . The concept of citizen’s arrest is discussed infra.

      . The Supreme Court’s statement that "a constable is a peace officer” was merely express recognition of a well-settled legal principle. See e.g., Black's Law Dictionary (5th ed. 1979) (defining “peace officers” to include "sheriffs and their deputies, constables ... and other officers whose duty it is to enforce the peace."), and 6A C.J.S. Arrest, § 17 ("Justices, sheriffs, coroners, constables and watchmen are recognized peace officers at common law.”). Lastly, 16 P.S. § 1216, Peace officers; powers and duties, expressly applies to constables.
      Moreover, following its statement that "a constable is a peace officer”, the Court inserted a footnote which provides, "[t]he constable is a police officer." In Re Act 147 of 1990, 528 Pa. 460, 471, 598 A.2d 985, 990 (1991). Instantly, the Commonwealth asserts that this statement constitutes Supreme Court recognition that constables possess "the same authorities and duties” as police officers under all circumstances. (Appellant’s brief at 10.) We flatly reject this claim. Specifically, when read in the context in which it was uttered, the Court's statement indicates that the powers of constables and police officers are coextensive in matters relating to “conservation of the peace." Id. Further, as the remainder of the Court's Opinion indicates, its notation that "[t]he constable is a police officer" was intended as further support for the Court's ultimate conclusion that "a constable belongs analytically to the executive branch of government.” Id. Therefore, since Act 147 did not involve the relative arrest powers of constables and police officers, the Court’s statement cannot be taken as a blanket endorsement of constable powers coextensive with those of police officers under all circumstances. Finally, the Court’s finding that constables are independent contractors, as quoted above, clearly indicates that the Court did not consider constables and police officers analogous for all purposes, since Pennsylvania law has never characterized police officers as independent contractors.

      . We find Leet helpful because sheriffs, like constables, are defined as "peace officers.” See footnote 6, supra, and Blackstone, Commentaries on the Law of England (Callaghan & Co., 1899), Book IV, p. 292.

      . Two members of the en banc panel dissented and one did not participate in the resolution of the case.

      . Additionally, in Commonwealth v. Gorski, 538 Pa. 472, 649 A.2d 129 (1994) (per curiam) the Supreme Court reversed an Order of our Court entered at 418 Pa.Super. 648, 607 A.2d 1123 (1992), which had affirmed a trial court suppression Order on the basis that deputy sheriffs lack authority to enforce the Vehicle Code. The Supreme Court's Per Curiam Order, dated October 10, 1994, also remanded "for disposition consistent with Commonwealth v. Leet[.]” Gorski, supra at 472, 649 A.2d at 129.

      . We also reject the trial court's finding that, "on its face”, section 45 limits Warrantless arrest powers only to those enunciated. Initially, the statute expressly grants powers "in addition to the powers already conferred." Moreover, section 45 applies to "policemen” as well as "constables” and it cannot be argued that the arrest powers of "policemen” are limited to the few offenses contemplated by the section.

      . The Supreme Court’s decision in Commonwealth v. Leet, 537 Pa. 89, 641 A.2d 299 (1994), empowering sheriffs with Motor Vehicle Code enforcement responsibilities expressly turned on the Court’s finding that "in times going back to the Magna Carta, the sheriff was the chief law enforcement officer of the shire or county.” Id. at 95, 641 A.2d at 302.

      . In addition to the authorities cited, we have reviewed the text principally relied upon by the Leet Supreme Court, Stenton, English Justice Between the Norman Conquest and the Great Charter. However, the text does not discuss the warrantless arrest powers of constables.

      . Despite the fact that constables lack the common law power to arrest for misdemeanors not involving breaches of the peace, the count charging appellees with simple possession, a misdemeanor under 35 P.S. § 780-113(a)(16), need not be discharged since it relates to the power of the Commonwealth to charge those crimes to which the defendant must ultimately answer once probable cause has been established based upon the belief that a felony has been committed.

      . We note the existence of substantial authority indicating that an arrest by a peace officer acting without jurisdiction is nonetheless valid where a private citizen could have made the arrest. For instance, Restatement, Second, Torts § 121, Comment on clause (a) provides as follows:
      The peace officer has all the privileges of arrest which ... are conferred upon one not a peace officer. In such a case, his privilege to arrest is not dependent upon his being a peace officer; and it is immaterial whether he purports to act in his capacity as peace officer or as a private person or whether he is or is not acting within the territorial and other limits of his designation.

        Id.; see also Gaither v. United States, 134 App.D.C. 154, 413 F.2d 1061 (1969) (arrest held valid where conducted by special police officer who, although exceeding jurisdiction, retained the power of a private citizen to arrest for felony committed in his presence); Nash v. State, 207 So.2d 104 (Miss.1968) (appellant’s arrest for manslaughter held valid despite arresting sheriff’s lack of territorial jurisdiction, on the basis that sheriff retained the right of a private citizen to arrest for felonies committed in his presence); People v. Alvarado, 208 Cal.App.2d 629, 25 Cal.Rptr. 437 (1962) ("an arrest by a city policeman outside his territorial jurisdiction is unquestionably valid if made upon grounds which would authorize a lawful arrest by a private citizen.”); accord, People v. Burgess, 170 Cal.App.2d 36, 338 P.2d 524; People v. McCarty, 164 Cal.App.2d 322, 330 P.2d 484 (1958); People v. Ball, 162 Cal.App.2d 465, 328 P.2d 276 ("it would appear anomalous to hold unlawful an arrest by a peace officer when the same arrest by a private citizen clearly would have been lawful.”); State v. Hart, 149 Vt. 104, 539 A.2d 551 (1987) (misdemeanor arrest by constable acting without jurisdiction held invalid on the basis that constable, even as a private citizen, lacked power to conduct misdemeanor arrest).