author: ROWLEY, President Judge:

text:
    602 A.2d 350
    COMMONWEALTH of Pennsylvania v. Joseph WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1991.
    Filed Jan. 22, 1992.

      Joel I. Fishbein, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   ROWLEY, President Judge:

Appellant Joseph Williams was convicted of possession with intent to deliver a controlled substance, possession of drug paraphernalia, and criminal conspiracy. He was sentenced to three to eight years imprisonment for possession with intent to deliver, with concurrent terms of six to twenty-four months imprisonment for possessing drug paraphernalia and five years probation for conspiracy. In this appeal appellant raises issues of suppression, sufficiency and weight of the evidence, and ineffective assistance of counsel. After considering all of appellant’s arguments, we affirm the judgment of sentence.

In October 1989, pursuant to citizen complaints that drugs were being sold from a house at 3966 Poplar Street, Philadelphia, Officer Rone made a controlled buy of two vials of cocaine. Rone approached the house and told the woman sitting on the porch that he needed “two” and handed her a pre-recorded ten-dollar bill. The woman tapped the porchboards and said “two.” A floorboard moved and a male’s hand stuck out two vials of cocaine. As Rone walked away from the house, an unidentified male passed him and said “Hello Officer” or words to that effect. Rone rushed around the corner and told his field superior of the identification. The field superior decided to move on the house immediately. The officers rushed to the house and entered the premises. They gathered all the individuals in the house into the living room and then proceeded to search the house. They found drug paraphernalia in the basement. Upstairs in the bedroom they found cocaine, vials, and currency which included the pre-recorded $10.00 bill. Finding evidence that the house belonged to Sharon Thompson, the officers questioned the women in the living room to find out which one was Ms. Thompson. When they found her, they began to place her under arrest. At that time, appellant stated “Don't lock her up. She doesn’t know anything about it. They are my drugs.” N.T. 11/16/90, 120. The police officers then arrested appellant.

I. SUPPRESSION

Appellant offers two distinct suppression issues. The first derives from the Fourth Amendment’s protection against unreasonable searches while the second derives from the Fifth Amendment’s protection against compulsory self-incrimination. After hearing the evidence, the suppression court denied the motions to suppress. We will now examine each of these issues in turn.

The scope of review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant’s rights. The burden of proving the admissibility of the evidence lies on the Commonwealth’s shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence. Pa.R.Crim.P. 232(h). On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact. Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972); and see Commonwealth v. Burgwin, 254 Pa.Super. 417, 386 A.2d 19 (1978) (Opinion in Support of Reversal, per Price, J.).

Commonwealth v. Eliff, 300 Pa.Super. 423, 428, 446 A.2d 927, 929 (1982).

A. Fourth Amendment

Appellant argues that the police violated his Fourth Amendment rights when they entered the house at 3966 Poplar Street without a warrant and without exigent circumstances. The Commonwealth concedes the absence of a warrant but disputes the alleged absence of exigent circumstances. There was testimony, which was believed by the trial court, that an unidentified male said “Hello, Officer” or words to that effect when Officer Rone passed him on the sidewalk, about three to five feet from the house. At this point, the Commonwealth suggests, Rone obviously had good reason to believe his cover was blown and that the prerecorded buy money, drugs, and accomplices within the house might soon disappear. Rone then proceeded to tell his field superior, who made a quick decision to “take the house” immediately.

Appellant argues that the above-mentioned facts are insufficient to show exigent circumstances. Appellant points out that there is no evidence that anyone in the house overheard the greeting. This is of no moment since the unidentified greeter could simply have repeated his observation at the house. By no means should we confine the showing of the exigent circumstances to the discrete event of the greeting; instead the problem was created when a person with apparent ability to blow Rone’s cover approached the house. It could logically be inferred, not that the initial greeting was heard, but that the observation would be repeated.

Appellant questions whether the identification of Officer Rone as a police officer was ever made in the first place. Appellant warns that by allowing police officers to skirt the warrant requirement by fabricating exigent circumstances, we would allow the exigent circumstance exception to swallow the rule requiring warrants. We are aware of the dangers posed by exceptions to constitutional principles. We are also cognizant of the dangers of fabrication. Commonwealth v. Daniels, 280 Pa.Super. 278, 286, 421 A.2d 721, 725 (1980). Nevertheless, appellant’s argument goes to credibility.

When reviewing a suppression claim, we are bound by the facts found in the record and in determining the matter, we consider only the evidence of the prosecution’s witnesses and may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602 (1987). Also see Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989).

Commonwealth v. Markovitch, 388 Pa.Super. 244, 249, 565 A.2d 468, 470 (1989).

The suppression court was permitted to believe all, part, or none of a witness’ testimony. Id. 388 Pa.Superior Ct. at 250, 565 A.2d at 471. It was free to disbelieve appellant’s testimony and to believe the officer’s testimony, and it did. If the officer’s cover had truly been blown, the suspects and the evidence could well have disappeared before the officers would have had time to get a search warrant. As will be discussed below, potential loss of evidence constitutes exigent circumstances, as does the potential flight of a suspect.

Appellant next argues that the factors set out in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1979), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980), were not met in this case. In Williams, the Pennsylvania Supreme Court examined the question of whether exigent circumstances excused a warrantless search of the defendant’s house. The court borrowed elements from Dorman v. United States, 140 U.S.App.D.C. 313, 320, 435 F.2d 385, 392-393 (1970), to help define when exigent circumstances exist. Those elements included: 1) a grave offense; 2) reasonable belief that the suspect is armed; 3) clear showing of probable cause to believe that the suspect committed the crime involved; 4) strong reason to believe the suspect is on the premises; 5) likelihood that the suspect will escape if not immediately apprehended; and 6) peaceful entry. Williams, supra, 483 Pa. at 298, 299, 396 A.2d at 1179, 1180. However, the paragraph introducing the elements is key, and has occasionally been forgotten, as appellant appears to have done in this case:

Terms like “exigent circumstances” or “urgent need” are useful in underscoring the heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant, and that it is only in the light of those circumstances and that need that the war-rantless search meets the ultimate test of avoiding condemnation under the Fourth Amendment as “unreasonable”. While the numerous and varied street fact situations do not permit a comprehensive catalog of the cases covered by these terms, it may be useful to refer to a number of considerations that are material, and have particular pertinence in the case at bar.

Williams, supra, 483 Pa. at 298, 396 A.2d at 1179, citing Dorman, supra (emphasis added).

Various other courts in Pennsylvania have applied the factors set forth in Williams. Some of these courts have appeared to apply them in a checklist or a “litmus test” fashion. Others have refused to do so. We conclude that the latter approach follows the spirit of the Supreme Court’s guidance in Williams.

Essentially, the exigent circumstances exception involves balancing the needs of law enforcement against individual liberties and/or rights. Some factors will outweigh others in a given case. Justice Brennan in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), emphasized the primacy of the gravity of the offense. In Welsh, Wisconsin’s grading of a traffic offense was the keystone in the majority’s determination that there were no exigent circumstances excusing the lack of a warrant.

In other cases, the need to protect evidence was found to be key. Exigent circumstances exist when the inevitable delay involved in getting a warrant must give way to an urgent need for immediate action. Commonwealth v. Conn, 377 Pa.Super. 442, 547 A.2d 768 (1988). The exigent circumstance exception applies when evidence will be destroyed or when the safety of officers or other individuals is at stake. Id. There can be no inflexible standard; instead the “reasonableness of searches and seizures must necessarily be determined on a case-by-case basis.” Commonwealth v. Eliff, 300 Pa.Super. 423, 438-439, 446 A.2d 927, 935 (1982).

The first Supreme Court case to examine the factors of Williams substantively was Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). There the Court listed the “seven” Williams factors and stated, “These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.” Id., 486 Pa. at 557, 406 A.2d at 1031. The Court then examined factors for and factors against exigent circumstances in that case. In concluding that no exigent circumstances existed, the Court once again noted a priority within the factors when it stated, “Even more importantly, there was little need of swift apprehension.” Id., 486 Pa. at 558, 406 A.2d at 1031.

This Court also recognized the primary role that the need of swift apprehension can play in Commonwealth v. Hartford, 313 Pa.Super. 213, 459 A.2d 815 (1983), where no exigent circumstances were found even though four Williams factors were met, but there was no need for swift apprehension. This Court noted in Commonwealth v. Santana, 329 Pa.Super. 427, 478 A.2d 863 (1984), that the relevant factors are to be balanced. In Commonwealth v. Monarch, 330 Pa.Super. 165, 479 A.2d 491 (1984), reversed on other grounds, 510 Pa. 138, 507 A.2d 74 (1986), this Court upheld a warrantless search when a drunk driver left the scene of an accident and went home. The court noted that several factors “coalesced to create the exigent circumstances” and also that “some factors will outweigh others in balancing the scale.” Id., 330 Pa.Superior Ct. at 177, 178 n. 3, 479 A.2d at 497 n. 3. In Commonwealth v. DeShields, 335 Pa.Super. 89, 96, 483 A.2d 969, 972 (1984), this Court explicitly stated that one of the Williams factors was not relevant to that case.

A case-by-case determination cannot be avoided. Appellant’s lockstep approach to Williams must be rejected. We remind appellant, and state clearly for the record, that the very nature of exigent circumstances makes them unsusceptible to checklists. Even if we were to hold that appellant is correct in arguing that some of the elements listed in Williams have not been met, this would not be the same as saying that appellant is correct in arguing that there are no exigent circumstances.

After listing six Williams factors, Judge Sheppard found that three were easily met (grave offense, probable cause to believe crime was committed at the subject premises, strong reason to believe suspect was on premises). See Trial Court Opinion at 14. He then analyzed the remaining three factors. He found that there was a need for swift apprehension due to the unidentified male’s identification of Rone. He also found that the entry onto the premises was peaceable. Both these issues were hotly contested, but their resolution was a matter of credibility. Concerning the final factor, Judge Sheppard wrote, “Admittedly, there was no evidence presented to suggest that the suspects were believed to be armed. On the other hand, experience in carrying out drug arrests in this country has demonstrated that in many instances weapons are found in the premises.” Id. at 15. Judge Sheppard determined that “on balance” the requisite Williams factors were met. Id. We agree.

Appellant’s final argument connected with the Fourth Amendment is that the police should have waited for a warrant after securing the premises. Appellant cites Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966), in which the Court stated that the police should have acquired a warrant before proceeding with a search of defendant’s hotel room. Two major distinctions from the case at bar can be noted. First, in Ellsworth, the search was not commenced until two hours after the defendant was arrested. Second, and most important in this Court’s view, the search was not geographically proximate to the arrest. In the case at bar, the search was made contemporaneous to a valid arrest. The arrest was made in a house and only that house was searched. The possibility that other suspects might be hiding in the house and/or that evidence might be destroyed justified the police search of the entire house. Appellant’s argument that the officers should have waited for a search warrant is ungrounded in the realities of a fast-moving narcotics bust in a crack house.

Given our disposition of appellant’s arguments and our deference to the fact-finding capacity of the suppression court, we agree with the suppression court that exigent circumstances existed which excused the normal requirement for a search warrant before entering a private residence.

B. Fifth Amendment

Appellant’s next suppression issue derives from the Fifth Amendment and concerns the admission into evidence of his statement to the police that the drugs were his. Appellant argues that he did this merely because he wanted to prevent his paramour, who was months pregnant, from being arrested. He implies that the police placed him under psychological pressure to confess to a crime he did not commit. Although there are no cases in Pennsylvania presenting these same facts, this case is remarkably similar to People v. Torres, 198 Ill.App.3d 1066, 145 Ill.Dec. 123, 556 N.E.2d 741 (1990). In Torres, the police searched defendant’s house pursuant to a search warrant and recovered cocaine. When the police placed defendant’s wife under arrest, defendant began to confess in an attempt to exculpate his wife. Defendant stated, “I’m the man of the house, I control the house.” At trial, defendant explained, “I told officers I cannot let arrest [sic] my wife because I’m supposed to be responsible in the house and if they going to arrest somebody to take me in.” Id. 145 Ill.Dec. at 125, 556 N.E.2d at 743. The court reasoned that the “protection of Miranda does not exclude statements simply because of the defendant’s motives in making them.” Id. 145 Ill.Dec. at 127, 556 N.E. at 745. The court pointed out that Miranda requires custodial interrogation. Since there was no interrogation in Torres, there was no Miranda violation.

We find Torres persuasive in this case. Appellant argues that he made his statement out of chivalry, merely to prevent his paramour from being arrested. As admirable as such a motive might be, it does not provide relief to appellant. There was no Miranda violation since Miranda requires a custodial interrogation, and there was no interrogation here. The police were acting entirely within their scope of authority. When they found drugs and drug paraphernalia in the house, they logically suspected the owner of the house. When the bedroom search turned up Sharon Thompson’s identification and the address on it matched the residence, they asked the assembly of people in the living room for their names. When Sharon Thompson identified herself, they proceeded to place her under arrest. This very well may have had the unintended consequence of placing psychological pressure on appellant. However, at the time of this occurrence, there was no interrogation going on, least of all of appellant. His statement was purely spontaneous. Whatever his motivations may have been, they cannot be charged against the police. Therefore, we conclude that the trial court correctly admitted the statement against appellant.

II. SUFFICIENCY OF THE EVIDENCE

Appellant states in his brief that “apart from [his] inadmissible statement” there is not sufficient evidence to convict him of possession with intent to deliver. Appellant’s brief at 15. He also asserts that the conviction for conspiracy must fail for the same reason. Id. at 17. Appellant misperceives the extent of our review. When the sufficiency of the evidence is challenged, all of the evidence admitted at trial is considered. “We may not grant a motion in arrest of judgment on a diminished record....” Commonwealth v. Maybee, 429 Pa. 222, 226, 239 A.2d 332, 335 (1968). Accord Commonwealth v. Baker, 466 Pa. 479, 483, 353 A.2d 454, 456 (1976). Instead, in reviewing a motion in arrest of judgment, “the sufficiency of the evidence must be evaluated upon the entire trial record-[A]ll evidence actually received must be considered, whether the trial rulings thereon were right or wrong.” Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965), quoted in Commonwealth v. Hazlett, 429 Pa. 476, 478, 240 A.2d 555, 556 (1968), and Commonwealth v. Maldonado, 343 Pa.Super. 154, 158, 494 A.2d 402, 404 (1985) (citations omitted; emphasis in original).

In any event, we have concluded that the statement in question was properly admitted. We also note that appellant’s confession was bolstered by corroborating evidence that indicated his joint possession and control of the house. Such evidence included appellant’s IRS W-4 form for tax withholding, the fact that appellant gave 3966 Poplar Street as his address to the police after his arrest, the presence of his clothes in the bedroom, and the logical inferences drawn from the fact that Ms. Thompson is the mother of three of his children.

III. WEIGHT OF THE EVIDENCE

“The grant of a new trial on the ground that the verdict is against the weight of the evidence is generally committed to the sound discretion of the trial court.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981). In reviewing the evidence we must look at all the evidence. Commonwealth v. Gonce, 320 Pa.Super. 19, 26 n. 1, 466 A.2d 1039, 1043 n. 1 (1983). To warrant a new trial, “it must appear from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail.” Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981).

Commonwealth v. Sullivan, 372 Pa.Super. 88, 90, 538 A.2d 1363, 1365 (1988).

The evidence presented at trial represented two widely contrasting perspectives on the events in question. The many conflicts between the two stories were resolved by the jury in favor of the Commonwealth’s version of events. The result reached by the jury does not shock the conscience of this Court; in fact, the verdict is adequately supported by competent evidence. We conclude that the trial court did not abuse its discretion when it refused to grant a new trial due to the weight of the evidence.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

As a general rule, ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977).
* * * * * *
The initial inquiry which we make is whether appellant’s claims are of arguable merit. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983); Commonwealth v. Kenney, 317 Pa.Super. 175, 182, 463 A.2d 1142, 1145 (1983) (quoting Commonwealth v. Kaufman, 307 Pa.Super. 63, 73, 452 A.2d 1039, 1044 (1982)). Only if the underlying claim is of arguable merit must we inquire whether the strategy chosen by counsel had some reasonable basis designed to effectuate the interest of his client. Commonwealth v. Hubbard, 472 Pa. 259 at 278, 372 A.2d 687 at 696 (1977). The burden of establishing counsel’s ineffectiveness lies with the petitioner. Commonwealth v. McNeil, [506 Pa. 607, 487 A.2d 802] supra; Commonwealth v. Kenney, supra.

Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173, 174-75 (1985).

Appellant was represented at trial by Victor Snyder. At the conclusion of the trial, Snyder withdrew and Joel Fishbein (“appellate counsel”) was appointed. On January 22, 1991, appellate counsel appeared at a hearing on appellant’s post-trial motions and raised, inter alia, the issue of ineffective assistance of counsel due to counsel’s failure to place into evidence certain photographs which, it is claimed, would have proven the violent entry of the police into 3966 Poplar Street or would at least have impugned the credibility of the police officers. It is further alleged that counsel was ineffective for failing to provide a necessary witness.

At trial, Sharon Thompson claimed that the police had broken into her home with violence and had broken pipes in the basement and damaged her front door. This testimony was challenged on cross-examination and the following significant exchange occurred:

Q: Do you have any pictures of that lock that was broken?
A: No, I*don’t.
Q. ... and you have pictures of those pipes that were broken?
A. No, I don’t.

N.T. 11/20/90, 19, 25.

Ms. Thompson explained the total lack of proof by saying that the damage had been repaired before trial (N.T. 11/20/ 90/ 4-6, 17-19, 24-25). Trial counsel cannot be ineffective for failing to place into evidence photographs which, according to sworn testimony, do not exist. Furthermore, appellant’s failure to establish that the photographs exist is sufficient grounds to deny his claim. See e.g. Commonwealth v. Johnson, 479 Pa. 60, 62, 387 A.2d 834, 834-35 (1978) (failure to provide investigatory report or even prove it existed).

In addition, we conclude, pursuant to our analysis of Williams in Section I.A., that even if appellant were able to prove that the photographs existed at the time of trial, that trial counsel knew of their existence, and that those photographs proved everything appellant claims they would have proved, the facts of the case before us would still support the application of the exigent circumstances exception to the warrant requirement. Appellant has failed to prove that he was prejudiced by the alleged ineffectiveness of counsel. Therefore, there is no merit to the claim.

Appellant argues that trial counsel was ineffective for failing to produce Pam Scott, the woman sitting on the porch from whom the drugs were actually purchased, as a witness. However, at the time of the trial, Pam Scott was under bench warrant status. N.T. 11/16/90,114-116. It is absurd to require defense counsel to produce as a witness someone who is currently a fugitive from justice. Her absence from this case was not the result of defense counsel’s ineffectiveness, but was the direct result of her own illegal act. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 35 Pa.S. § 780-113(a)(30), (32); 18 Pa.C.S. § 903.

      . Another factor the Court in Williams addressed was whether the entry was made in the daytime. However, the Court noted that this consideration could cut either way in a given case. Some later courts have added daytime entry as a seventh factor while others have maintained only six factors.

      . Appellant raises this issue in his brief in the "Summary of Argument” section. This contention was not argued in the "Argument” section of the brief, nor was it stated or implied in the Statement of Questions Involved. Nevertheless, it was orally addressed on motion for post-trial relief and was discussed by Judge Sheppard in his opinion: Although the brief has not met the dictates of Pa.R.A.P. 2116(a), we will not consider the issue waived, but will address it on the merits.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    602 A.2d 358
    Violet SELM v. Robert ELLIOTT, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1991.
    Filed Jan. 28, 1992.

      Gary A. Falatovich, Greensburg, for appellant.
    Annaliese P. Masser, New Stanton, for appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Robert Elliott appeals from the order entered in the Court of Common Pleas of Westmoreland County on March 13, 1991, which directed the local domestic relations office to implement genetic testing so that the question of Jessica Seim’s paternity may be resolved. As the facts of record overcame the presumption that Jessica Seim was a child of the marriage of appellee and Scott Seim, paternity is a relevant fact warranting the ordering of testing to establish paternity. Therefore, we affirm.

The procedural history of this case may be summarized as follows. On October 16,1989, Violet Seim, appellee, filed a complaint for support alleging that Jessica Seim, a child bom to her thirteen days previously, had been fathered by appellant. As appellee had been married to Scott Seim at the time of Jessica’s conception and birth, the trial court scheduled an evidentiary hearing relating to the questions of both paternity and the presumption that a child bom to a married woman is a child of the marriage. On March 13, 1991, upon the completion of the evidentiary hearing, the trial court found that Mrs. Seim had rebutted the presumption that Jessica was a child of her marriage. Consequently, it entered the challenged order. This timely appeal followed.

A trial court in a support action may require a putative father to submit to a blood test if the question of paternity is a relevant fact. See Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990). Consequently, in order to determine the appropriateness of the trial court’s order, we must decide whether the court correctly concluded that appellee rebutted the presumption that a child born to a married woman is a child of the marriage. In this regard, we note that appellant asserts that the evidence presented by appellee failed to overcome the presumption and that he demonstrated the applicability of the doctrine of estoppel to prevent appellee from denying Scott Seim’s parentage of Jessica.

The presumption that a child conceived by and born to a married woman is the child of the mother’s husband is one of the strongest presumptions in our law. See Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1990), petition for allowance of appeal granted, 527 Pa. 673, 594 A.2d 658 (1991). Consequently, the burden in overcoming that presumption is heavy.

Traditionally, courts have permitted the presumption to be overcome only by evidence which clearly and convincingly establishes “non-access or that the husband was impotent or had no sexual intercourse with his wife at any time when it was possible in the course of nature for the child to have been begotten.” Commonwealth ex rel. Ermel v. Ermel, 259 Pa.Super. 219, 221, 393 A.2d 796, 797 (1978), quoting Cairgle v. American Radiator & Standard Sanitary Corp., 366 Pa. 249, 255, 77 A.2d 439, 442 (1951) (citations omitted).

Id., 402 Pa.Super. at 66, 586 A.2d at 399. Keeping these principles in mind, we now consider the evidence presented at the hearing.

The evidence presented by appellee indicates that she met Scott Seim in 1986, while both were serving in the United States Air Force at an installation in Great Britain. In August of that year, shortly after their engagement, she was transferred to North Carolina. Although Scott continued to work in Great Britain, they were married on November 26, 1986, in the United States. Following the marriage, the two returned to their respective posts, Scott to England, and Violet to the United States.

In May or June, 1987, appellee visited Scott in England. During the course of this visit, she became pregnant with her first child, Nicholas. She therefore filed the requisite paperwork to effectuate her separation from the Air Force. Although appellee subsequently planned to rejoin her husband, she never received the requisite orders. Eventually, Scott informed her that he did not want her with him. Appellee testified that she had not seen nor spoken to her husband since August, 1987. Notes of Testimony (“N.T.”), 3/13/91, at 19.

Appellee testified that when she separated from the United States Air Force in August, 1987, her husband prepared the necessary paperwork to effect her medical insurance by CHAMPUS, the military’s insurer for dependents of servicemen. Id., at 30. The medical identification card she received was issued August 26, 1987, the day she separated from the Air Force, and expired on December 8, 1989, the date Scott was to be discharged. Id., at 30-31, 46. Appellee also testified that she has been on public assistance since January, 1988. Id., at 29. She stated that at the time of Nicholas’s birth, February 15, 1988, her medical assistance card specified “that I had to show the CHAMPUS card first for all bills and then my medical assistance card.” Id. at 32. Thus, CHAMPUS was the primary insurer, and medical assistance was the secondary insurer.

Nicholas was born at Forbes Regional Hospital in Mon-roeville, Pennsylvania, on February 15,1988. Approximately twenty months later, Jessica was born at the same hospital. Appellee testified that she showed both the CHAMPUS and medical assistance cards when admitted to the hospital to give birth to her children, as both were in effect. She testified that at no time did she ever designate Scott Seim as the father of her second child, Jessica. To the contrary, appellee indicated that she named appellant as Jessica’s father on the birth certificate.

Appellant attempted to counter the evidence presented by appellee by introducing hospital records relating to both Nicholas’s and Jessica’s births. These records referred to Scott Seim as the husband of Violet Seim and indicated that he resided at the same address as his wife. In addition, appellant introduced a statement of account relating to Jessica’s birth sent to Scott at appellee’s address along with a copy of a payment voucher issued by Scott’s insurance company. Finally, appellant introduced testimony of a letter carrier, who stated that he had delivered a few pieces of mail addressed to Scott Seim at appellee’s address.

Our review of the evidence reveals that the trial court correctly concluded that the evidence presented by appellee overcame the applicable presumption. As demonstrated above, appellee presented evidence that she neither saw nor heard from her husband after he told her that he did not want her to join him in Great Britain. Although appellant attempted to contradict this evidence with the hospital records showing that CHAMPUS paid a portion of the costs associated with Jessica’s birth, in conjunction with the testimony of a letter carrier that Scott Seim received mail at appellee’s address, his effort was ineffectual. Appellee testified that at the time the CHAMPUS card was issued, she and her husband were not separated, and had plans to reunite in England following her separation from the air force. Moreover, medical assistance required that she submit the identification card from CHAMPUS, the primary insurer, along with the medical assistance card. This testimony clearly explained why Forbes Regional Hospital utilized Scott Seim’s CHAMPUS card and designated him as the person responsible for the payment of the account.

Furthermore, the testimony of the letter carrier established only that Scott Seim had received “very few” pieces of mail at appellee’s address over the course of the year. N.T., 3/13/91, at 61. In fact, appellant’s presentation of the testimony of the letter carrier, in our view, reinforced appellee’s testimony that Scott Seim did not reside with her. The mail carrier, in addition to establishing that Scott received very few pieces of mail, testified that the electric bill, the water bill, and the gas bill were addressed solely to appellee. Id., at 63. In light of appellee’s testimony, it is a fair inference of the evidence that the mail that did arrive addressed to Scott Seim derived only from his status as the CHAMPUS insured.

We agree with the trial court that appellee adequately rebutted the presumption of legitimacy. Her testimony, which was found credible by the trial court and was unre-butted by appellant, established that she had not seen nor heard from Scott Seim since he told her, while she was pregnant with his child, that he did not want her to join him in England as planned. Moreover, appellee never held out her husband as the father of Jessica, and Scott had never acknowledged or supported the child. Consequently, unlike Scott v. Mershon, supra, there clearly is no extant family relationship between the child and the husband such as would preclude a challenge to the presumption. In light of these facts, it is clear that Jessica’s needs would not be best served by maintaining the status quo. Compare Scott v. Mershon, supra (since action was for support and husband already fulfilled that obligation, there was no aggrieved party; thus the child’s needs and interests were served by maintaining the status quo).

The following language, in a recently-filed decision of this court, is pertinent:

Instantly, there has been no prior adjudication of paternity, and the record does not reflect that appellant has ever acted in a manner that would estop him from denying paternity of the children to be supported. There is no evidence that he ever accepted the children as his own or provided for their support.
The presumption of paternity which arises from the marriage relationship does not necessarily render the question of paternity irrelevant. This presumption, although one of the strongest presumptions in the law, ... is a rebuttable presumption.

Rodriguez v. Rodriguez, 410 Pa.Super. 549, 600 A.2d 589 (1991) (Wieand, J., concurring, opinion at 592-593) (citations omitted; emphasis added).

Moreover, appellee is not estopped from denying Scott’s paternity of Jessica. As is well-established, the presumption of legitimacy may not be lightly turned aside, and “the conduct of the father (and/or the mother) may operate to estop any further inquiry.” Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961, 963 (1990). We further stated in that case that a mother cannot hold out her husband as the father of her child, and thereafter, upon separation, charge a different man with paternity. Such is not the case herein. The unrebutted testimony, found credible by the trial court, established that the mother and her husband had separated long before the child in question was conceived.

Accordingly, for the foregoing reasons, we affirm the order granting genetic testing.

Order affirmed.

      . The notes of testimony indicate that the trial court had a copy of the birth certificate before it, but it was never admitted into evidence, and is not in the record certified to us. N.T., 3/13/91, at 23-24.

      . Our decision in this regard is unaffected by the fact that the evidence presented by Mrs. Seim consisted solely of her own testimony. It is clear that the testimony of a mother in a support matter may overcome the presumption in question. See Commonwealth ex rel. Savruk v. Derby, 235 Pa.Super. 560, 344 A.2d 624 (1975).


author: TAMILIA, Judge:

text:
    602 A.2d 362
    John J. O’ROURKE, Guardian Ad Litem on Behalf of Bernadette H. O’ROURKE and John J. O’Rourke in His Own Right, Appellant, v. Dr. Gopal RAO and Shadyside Hospital.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1991.
    Filed Jan. 29, 1992.

      Charles E. Evans, Pittsburgh, for appellant.
    Richard S. Dorfzaun, Pittsburgh, for appellee Rao.
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from judgment entered November 9, 1990. The underlying medical malpractice action against defendants, appellee Dr. Gopal Rao, a general surgeon, and Shadyside Hospital, began in March, 1981 when appellant, Bernadette O’Rourke, since deceased, was admitted to Shadyside Hospital for surgical repair of a hiatal hernia. On March 10, 1981, several days after the surgery, Mrs. O’Rourke suffered a stroke. Dr. Rao was not in the hospital and was telephoned by the attending nurses several times throughout the late evening and early morning of the next day. Dr. Rao eventually came to the hospital and entered a note on Mrs. O’Rourke’s chart at approximately 2:00 a.m. indicating he would ask a neurologist to examine her, but it was not until after 10:00 a.m. on March 11th that a neurologist, Dr. David Wright, first saw Mrs. O’Rourke. Dr. David Zorab, á neurosurgeon, was also brought in for consultation shortly thereafter, and Dr. Wright diagnosed plaintiff as having an infarction of the brain stem. Mrs. O’Rourke remained semi-comatose to the time of trial.

The case was brought to trial under the “increased risk of harm” doctrine set forth in section 323(a) of the Restatement (Second) of Torts. During the course of trial, plaintiffs reached a settlement with defendant Shadyside Hospital under a joint tortfeasor’s release, but proceeded to a jury verdict in their case against Dr. Rao. Although both parties identified Dr. Wright as a witness in their pretrial statements, neither called him to testify. Both parties, however, produced expert testimony in support of their respective theories. Appellants presented expert testimony to show the failure in promptly diagnosing and treating the symptoms exhibited by Mrs. O’Rourke increased the risk of harm. Dr. Rao, for his part, presented expert testimony to show Mrs. O’Rourke's stroke was seriously disabling in nature, that had a neurologist been consulted earlier, he would not have diagnosed a stroke, and earlier diagnosis and treatment would not have altered the outcome. The jury returned a verdict, by way of special interrogatories, finding Dr. Rao was negligent, but that his conduct was not a substantial factor in bringing about the harm suffered by Mrs. O’Rourke.

On appeal, appellant husband seeks a new trial, claiming the trial court erred in failing to instruct the jury on the requested “missing witness” charge with regard to Dr. Wright, or allow plaintiffs to argue the inference raised by Dr. Rao’s failure to call Dr. Wright as a witness.

We are afforded by appellant in this case the opportunity to comment upon and even expand the commonlaw “missing witness” rule as it is applied in Pennsylvania. As stated in McCormick, the rule is:

[I]f a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.
The cases actually fall into two groups. In the first, an adverse inference may be drawn against a party for failure to produce a witness reasonably assumed to be favorably disposed to the party. In the second, the inference may be drawn against a party who has exclusive control over a material witness but fails to produce him, without regard to any possible favorable disposition of the witness toward the party. Cases in the second group are increasingly less frequent, due in part, no doubt, to the growth of discovery and other disclosure requirements. In either group, if the testimony of the witness would be merely cumulative, the inference is unavailable.
Despite the plenitude of cases recognizing the inference, refusal to allow comment or to instruct does not often serve as a ground for reversal. This counsel of caution is reinforced by several factors. Possible conjecture or ambiguity of inference is often present. The possibility that the inference may be drawn invites waste of time in calling unnecessary witnesses or in presenting evidence to explain why they were not called. Failure to anticipate that the inference may be invoked entails substantial possibilities of surprise. And finally, the availability of modem discovery and other disclosure procedures serves to diminish both the justification and the need for the inference. For some or all of these reasons, and others, recognition of the inference may well be disappearing.

McCormick on Evidence § 272, 1987 pocket part (3d ed. 1984) (footnotes omitted). After sedulous review of the voluminous record in this case, we find no error by the estimable trial court in regard to this issue, and we decline to expand the missing witness rule beyond its present parameters. In fact, by our decision in this case, we hope to simplify the application of what has become one of the most abused evidentiary rules.

It is well established in this Commonwealth the decision whether to tell the jury they might draw an unfavorable inference from the failure of a party to call a witness is a matter within the trial court’s discretion which this Court will not overturn absent manifest abuse. Rupnik v. Pa. Railroad Co., 412 Pa. 460, 194 A.2d 906 (1963).

In his brief, appellant engages in a lengthy discussion of the missing witness rule, imbuing in it subtle and blatant distinctions, which, if ever warranted by decisions of the courts in Pennsylvania, we seek in this decision to underscore are no longer so. To the contrary, we find the rule as established by our Supreme Court to be straightforward, but limited in its applicability.

The Supreme Court has held the missing witness rule inapplicable if the “witness is equally available to both sides of the litigation. In other words, the inference is permitted only where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties.” Bentivoglio v. Ralston, 447 Pa. 24, 29, 288 A.2d 745, 748 (1972). Stated another way, the witness must be within the control of the party in whose interest it would naturally be to produce him. Rupnik, supra, 412 Pa. at 464, 194 A.2d at 909. Absent a showing of the witness’ unavailability to the party seeking the inference, no inference can be taken. Id. Additionally, the rule is inapplicable where the likelihood exists the testimony of the uncalled witness would be unimportant, cumulative or inferior to evidence already presented. Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973). While appellant presents numerous other decisions in support of his argument distinguishing Rupnik, Benti-voglio and Downey, he does not contend subsequent case law has vitiated their authority. Instead, he argues their central premise of equal availability encompasses personal interest as well as physical availability. We continue to hold Rupnik, Bentivoglio and Downey controlling, and even adopting appellant’s rationale, we find the facts of this case still fall within the exceptions prohibiting application of the missing witness rule.

From the record, it is clear Dr. Wright, called by Dr. Rao, was the first neurologist to examine and treat Mrs. O’Rourke, and as a treating physician, there is no dispute his identity and whereabouts were well-known to all parties. In fact, Dr. Wright was listed as a potential witness on the pretrial statements of both plaintiffs and Dr. Rao. Further, plaintiffs never established, or even alleged, that Dr. Wright refused to or balked at testifying on their behalf. Dr. Wright was not an employee of Dr. Rao, but merely a colleague, and thus not within Dr. Rao’s control by virtue of any employment relationship. To the contrary Dr. Wright, as Mrs. O’Rourke’s treating neurologist, was equally within plaintiffs’ control at all stages of this case. Given the comprehensiveness of modern discovery practice, and absent any facts indicating Dr. Wright was “peculiarly within the reach and knowledge” of Dr. Rao, we find no error by the trial court in refusing to give the requested missing witness charge. For these reasons, we also find no error by the trial court in refusing to allow plaintiffs to raise the missing witness inference in closing argument.

Appellant next argues the trial court erred in instructing the jury a doctor is not a warrantor of a cure, where defendant’s alleged negligence was based on a theory of increased risk of harm. As a result, appellant argues this instruction was inapplicable and/or confusing to the jury. We disagree and find the trial court disposed of this issue with dispatch, clarity and accuracy when it said:

The charge has a logical place in an action against health care providers based on negligence rather than breach of contract. It would not make sense to limit its use to contract actions since it is expressly intended to apply in the absence of a special contract. It is an essential part of the analysis of the standard of care in a professional negligence action, correctly stating what is not required. Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974).
Plaintiffs have not cited any cases in support of their argument that the “no guarantee of cure” charge is not appropriate in cases involving allegations of failure to diagnose and/or treat a patient. Such a restriction would not be justified. Failure to reach a correct diagnosis or to administer the proper treatment may or may not be the result of professional negligence, but it remains true that, in the absence of a special contract, there has been no guarantee of a cure and the jury should be told that it is not to approach the question of liability as if the doctor were to be held to such a standard. In his brief, Defendant Dr. Rao cites two medical malpractice cases which involved allegations of negligent failure to treat and diagnose, Smith v. Yoke, 412 Pa. 94, 194 A.2d 167 (1963) (Defendant physician failed to x-ray an elderly patient who had fallen, and, as a result, failed to discover and treat a fractured hip), and Carl v. Matzko, 213 Pa.Super. 446, 249 A.2d 808 (1968) (Defendant physician failed to make timely diagnosis of tension of the spermatic cord in a young man, who, as a result, suffered the loss of a testicle). In both these cases, the proposition that a physician does not warrant a cure or guarantee of good result was mentioned by the court as being among the applicable principles. Therefore, Plaintiffs argument that the “no guarantee of a cure” charge should not have been given is without merit.

(Slip Op., Horgos, J., 5/24/91, pp. 12-13.)

Appellant’s final claim is the trial court erred in this increased risk of harm case by charging the jury that the mere occurrence of an injury does not necessarily prove negligence. Appellant argues that because an increased risk of harm case involves a distinct standard of causation, it is error to phrase a charge so as to imply causation must be shown with certainty.

It is not a subject of this debate that section 323(a) of the Restatement, as adopted in Pennsylvania, serves to “relax the degree of certitude normally required of plaintiffs evidence in order to make a case for the jury as to whether a defendant may be held liable for the plaintiffs injuries.” Hamil v. Bashline, 481 Pa. 256, 269, 392 A.2d 1280, 1286 (1978). It is well accepted that “[o]nce a plaintiff has introduced evidence that a defendant’s negligent act or omission increased the risk of harm to a person in plaintiffs position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.” Id., 481 Pa. at 269, 392 A.2d at 1286. See also Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). We note, however, the Supreme Court made it equally clear causation is still a required element which must be established in all negligence actions. Bashline, supra, n. 5. While plaintiffs established a prima facie case under the increased risk of harm theory, it was still a matter for the jury to “decide whether defendant’s negligence was a substantial factor in bringing about the harm.” Id., 481 Pa. at 273, 392 A.2d at 1288-89. As a result, the jury was free to accept or reject the testimony of plaintiffs’ medical experts or that of defendants that Mrs. O’Rourke would have suffered the same disability even if there had been earlier diagnosis and treatment of her stroke. That the jury apparently chose the latter course does not place an otherwise proper charge by the trial court in error. We, therefore, find this claim without merit.

Judgment affirmed.

      . Unfortunately, the trial judge, the Honorable Leonard C. Staisey, died prior to deciding post-verdict motions and the case was assigned to the Honorable Robert P. Horgos, who denied post-verdict motions.


author: MONTEMURO, Judge:

text:
    602 A.2d 366
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Filed Jan. 31, 1992.

      Douglas R. Bare, York, for appellants.
    John R. Gailey, Jr., York, for Coleman, participating party.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from an order modifying the contingency fee agreement between the administrator of the estate of Georgia L. Murray and the law firm of Prankel & Associates. On appeal, appellant, Frankel & Associates, has raised an issue not previously before this court; whether a trial court may fix attorneys’ fees pursuant to Pa.R.C.P. 2206. We hold that trial courts are so empowered.

The events preceding this appeal are as follows. Georgia L. Murray (decedent) was struck and killed by an automobile while walking down a city sidewalk. Ms. Murray was survived by her three children, all under the age of four, and by her parents. Following the death of her daughter, decedent’s mother filed a petition for the grant of Letters of Administration with the York County Register of Wills.

Decedent’s boyfriend, Phillip Martin, and the father of decedent’s youngest child, filed a caveat to the mother’s petition. At this juncture, appellant represented Mr. Martin. Eventually, Mr. Martin renounced his claim to the letters and requested that York Bank and Trust Company (Bank) be appointed administrator. After testimony and findings, the Register of Wills granted Letters of Administration to the Bank. In its capacity as administrator, Bank retained appellant to pursue a wrongful death action against the driver of the automobile, Jessica L. Love (defendant). For its services, appellant was to receive one-third of the gross recovery.

Decedent’s mother appealed the grant of letters to the York County Orphans’ Court Division. A hearing was held during which decedent’s mother challenged the propriety of the one-third contingency fee agreement. Despite testimony that the mother would not charge an administrator’s fee, nor enter into a contingent fee agreement in excess of ten (10) percent, the orphans’ court affirmed the grant of letters to the Bank because of the animosity which existed between decedent’s mother and boyfriend over custody of decedent’s children.

Soon after appellant began representing the estate, it was approached by defendant’s insurance carrier who offered the policy limits to all claimants. (N.T. 9/24/90 at 25-7, 32). At this point, the only issue remaining for resolution was the division of the proceeds between the estate and the other claimants.

To resolve this issue, appellant filed a complaint and defendant responded by filing a petition for interpleader. The net result of the petition was a judgment of non pros entered against one claimant and extensive negotiations between the estate and the remaining claimant. Eventually, an amicable division of the insurance proceeds was reached and a petition for approval was filed with the court.

Pursuant to Pa.R.C.P. 2206, the trial court approved the settlement, but reduced appellant’s fee to twenty (20) percent of the recovery. Appellant petitioned the trial court for reconsideration. Its petition was denied and a timely appeal was taken to this court.

In its brief, appellant asserts that it is an abuse of discretion for the trial court to: (1) base its opinion on unsupported factual findings; (2) exceed its authority under Pa.R.C.P. 2206; (3) reduce counsel fees below twenty-five (25) percent; and, (4) find that the record does not support a one-third contingency fee. For the reasons discussed below, we find that the trial court has not abused its discretion.

Rule 2206(a) provides, in part, that a wrongful death action in which a minor has an interest may not be compromised or settled until the court, upon petition of any party, approves the settlement as being fair and equitable. Additionally, rule 2206(c) states that a trial court “may ... approve an agreement for the payment of counsel fees and other proper expenses out of the share of damages to which a minor is entitled” from a wrongful death action. We have not previously addressed the limits of a court’s power under this rule.

The courts of common pleas differ in their interpretation of the power granted to them by rule 2206. In Arndt’s Adm’r v. Davis, 34 Pa.D. & C.2d 444 (Lancaster 1965), the Lancaster County Court of Common Pleas noted that under rule 2206 it had the authority to fix counsel fees payable from a minor’s share of a wrongful death recovery. This same proposition was also put forth by the Washington County Court of Common Pleas in McAlister v. Stevens, 41 Pa.D. & C. 612 (Washington 1941). However, the Philadelphia County Court of Common Pleas has taken a more restrictive view of the power conveyed by rule 2206(c). In Wexler v. Philadelphia Transp. Co. 3 Pa.D. & C.2d 122 (Philadelphia 1956), the court found that Rule 2206 only conferred the power to approve attorney’s fees, not the power to fix such fees. To resolve this conflict, we must ascertain and give effect to the intent of our Supreme Court when it adopted rule 2206. Pa.R.C.P. 127.

A wrongful death action is the means by which a decedent’s survivors are compensated for the pecuniary loss they have sustained as the result of the death of a loved one. Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213 (1983). When one or more of the survivors are minors, our Supreme Court has adopted a rule which requires court approval before any such wrongful death action may be settled, compromised or discontinued. Pa.R.C.P. 2206. The purpose of this rule is to ensure that a minor’s interest is protected and that any settlement entered into for the benefit of the minor is fair and equitable.

To further protect the interests of minor beneficiaries, a trial court has the authority to approve fee agreements payable out of the minor’s share of a wrongful death settlement. Pa.R.C.P. 2206(c). It is appellant’s contention that the trial court’s authority under rule 2206 is limited to approving an agreement for the payment of counsel fees and therefore, the trial court cannot fix or modify fee agreements. While this argument is supported by a superficial reading of the rule, such a reading is not supported by our Supreme Court’s rules of construction, nor our interest in promoting judicial economy.

Our reading of rule 2206 indicates that our Supreme Court adopted this rule to make certain that a minor receives a fair and equitable settlement of his or her interest in a wrongful death action. To further protect a minor’s interest, the Supreme Court empowered trial courts to approve agreements governing attorneys’ fees, we believe, with the intent to ensure that such fees are also fair and equitable.

If we should limit a trial court’s power to approving fair and equitable fee agreements and disapproving what the court finds to be either unfair or inequitable, the trial court will be required to address endless petitions from dissatisfied counsel. This would be an unnecessary waste of judicial resources. As we are required to construe rule 2206 in such a manner as to secure “the just, speedy and inexpensive determination of every action or proceeding,” we hold that rule 2206 confers the power to approve or disapprove fee agreements, and the power to fix counsel fees. Pa.R.C.P. 126.

Appellant argues that such an interpretation is contrary to our Supreme Court’s intent and in support of its argument, our attention is directed to Pa.R.C.P. 2039. Rule 2039 provides that:

(a) No action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition presented by the guardian of a minor.
(b) When a compromise or settlement has been so approved by the court, or when a judgment has been entered upon a verdict or by agreement, the court, upon petition by the guardian or any party to the action, shall make an order approving or disapproving any agreement entered into by the guardian for the payment of counsel fees and other expenses out of the fund created by the compromise or judgment; or the court may make such order as it deems proper fixing counsel fees and other proper expenses.

Appellant contends that the language of rule 2039 indicates that when our Supreme Court empowers the trial courts with the authority to fix attorneys’ fees, it does so in clear and unmistakable language; thus, rule 2206 conveys only the power to approve fee agreements and nothing more. This argument neglects to consider the purpose behind promulgation of rules 2039 and 2206.

Rule 2039 was adopted to ensure that the interests of minor litigants are protected above all other conflicting interests. Klein v. Cissone, 297 Pa.Super. 207, 213, 443 A.2d 799, 802 (1982). To adequately protect minors’ interests, the power to supervise settlements was conveyed to the courts. Wilson v. Bensalem Township School Dist., 27 Pa.Commw. 609, 367 A.2d 397 (1976). Without such a rule, trial courts would lack the power to prevent settlements which are unfair to minor litigants. Goodrich-Amram 2d § 2039(a):1 (1977).

Rule 2206 is also intended to protect the rights of minor litigants. Before its adoption, minor children had no right to recover for the wrongful death of a parent when the deceased parent was survived by his or her spouse. Shambach v. Middlecreek Elec. Co., 45 Pa.Super. 300 (1911), aff'd, 232 Pa. 641, 81 A. 802 (1911). Thus, a surviving spouse could settle a wrongful death action without obtaining, the consent of the childrens’ guardian and more troubling, without regard as to whether the settlement was fair to the minor children. And because such a settlement precluded the childrens’ guardian from pursuing the claim further, it was possible to prevent minors from obtaining a just recovery for the wrongful death of a parent.

To prevent such an unfair result, rule 2206 was adopted to impose judicial scrutiny on wrongful death settlements involving minor beneficiaries. Although rule 2206 does not expressly convey the same powers as rule 2039, both rules are intended to protect the rights of minor litigants. Thus, our Supreme Court must have intended to convey similar powers under both rules. If not, the best interests of minor litigants cannot be fully protected.

Because we find that the trial court had the authority to modify the instant fee agreement, we must next determine if the trial court’s decision to modify the agreement is supported by the record and by the relevant law. As in all cases where the reasonableness of an attorneys’ fee is questioned, our power of review is necessarily limited. We may only reverse the trial court if we find an abuse of discretion or an error of law, Gilmore v. Dondero, 399 Pa.Super. 599, 605, 582 A.2d 1106, 1108 (1990); Romano v. Lubin, 365 Pa.Super. 627, 630, 530 A.2d 487, 488 (1987); In re Estate of LaRocca, 431 Pa. 542, 547, 246 A.2d 337, 339 (1968), and we will not find that the trial court has abused its discretion unless the award is based on erroneous factual findings or irrelevant legal factors. Dondero, supra.

In determining the reasonableness of appellant’s fee, the trial court must consider:

amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was “created” by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question.

LaRocca, supra, 431 Pa. at 546, 246 A.2d at 339. We have carefully reviewed that trial court’s opinion and we find that the court properly considered the above factors before it modified the instant fee agreement.

In the instant case, the net proceeds available for distribution to decedent’s children is $273,625.17. We recognize that this sum was obtained as a result of appellant’s negotiations with counsel for the insurance carrier and a third party claimant. But, this is not a fund created by the attorney. See Id. 431 Pa. at 547, 246 A.2d at 339. To the contrary, this sum reflects the net proceeds of an insurance policy which was always available to decedent’s estate and which was offered to the estate shortly after appellant began its representation.

Appellant expended slightly more than fifty-three (53) hours in reaching this settlement. Petitioner’s Exhibit ll. Most of this time was spent negotiating the division of insurance proceeds with the insurance carrier and counsel for the third party claimant. Id. As the trial court correctly found, appellant conducted a minimal amount of discovery and drafted limited pleadings. Id.; (T.C.O. at 5-6). We can find no evidence that the issues presented to appellant were overly complex or out of the ordinary. Accordingly, we find that counsel fees of twenty (20) percent are fair and equitable under the facts of this case.

Appellant contends that we should reverse the trial court’s order as we did previously in the case of Romano v. Lubin, supra. However, Romano is factually distinguishable from the instant case.

In Romano, the trial court stated that its decision was based on the factors enunciated in LaRocca, supra. However, the Romano court went on to state that:

it weighed the interests of the brain damaged child against the interests of his law firm. The court stated that it was required to ‘scrupulously [protect]’ the rights of the child and therefore, felt duty bound to reduce the attorneys’ fee so as to increase the minor-client’s share of the settlement.

Id. 365 Pa.Super. at 629, 530 A.2d at 488. It was this impermissible weighing of conflicting interests that lead us to reverse the trial court in Romano, a factor not evidenced by the record in the instant, appeal. Accordingly, we find that Romano is not dispositive to our decision in the case now before us.

Order affirmed.

      . Two other individuals were also injured in the accident, Reynaldo Rodriquez and Jennifer Gooler. Ms. Gooler's claim was disposed of by a judgment of non pros. Mr. Rodriquez pursued his claim against the driver of the automobile.

      . 42 Pa.C.S.A. § 8301. Section 8301 provides:
      (a) General action may be brought to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.
      (b) as provided in subsection (d), the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased.... The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth.

      . Decedent’s mother, as guardian of two of decedent’s children, filed an answer to the petition for approval. In her answer, the mother approved of the proposed settlement, but challenged the requested attorneys’ fees. ,

      . It is the practice of the York County courts to limit contingency fees obtained in settling a minor’s claim to twenty-five (25) percent and appellant contends that any reduction in its fee should be limited to this percentage. For the reasons discussed infra, we believe that when a trial court sets a fee pursuant to Pa.R.C.P. 2206, the court should set a fee which is fair and equitable to the minor without regard to whether the fee exceeds or is less than a particular percentage.

      . In addition to the fifty-three hours previously mentioned, this exhibit also describes approximately twenty hours of legal services provided to Mr. Martin and the Bank in resolving the dispute over issuance of Letters of Administration. Appellants attempt to justify its fee by directing a court’s attention to hours expended in a matter outside the scope of the fee agreement is unseemly and we do not condone such conduct. See also (T.O.P. at 19, 27-9).

      . T.C.O. denotes Trial Court Opinion of 9/28/1990.

      . Appellant also contends that the trial court based its opinion on two additional erroneous factual findings which we have not yet addressed. Specifically, the finding that the contingent fee agreement was the source of the antagonism between the parties and that decedent’s mother did not strongly object to the contingent fee agreement. Because our reading of the trial court’s opinion indicates that these findings were not relied on in reducing appellant’s fee, we find it unnecessary to address the accuracy of these determinations.


author: CAVANAUGH, Judge:

text:
    602 A.2d 371
    COMMONWEALTH of Pennsylvania, Appellant, v. Myla FRIEDMAN, Appellee.
    Superior Court of Pennsylvania.
    Argued June 18, 1991.
    Decided Jan. 22, 1992.

      Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, for Com., appellant.
    Dennis J. Cogan, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   CAVANAUGH, Judge:

This is a Commonwealth appeal from an order of the lower court granting a suppression motion. A statement made by appellee and videotapes taken from her apartment were suppressed after the Honorable Juanita Kidd Stout found that the investigating officers violated appellee's rights as guaranteed by the fourth, fifth, sixth, and fourteenth amendments to the U.S. Constitution. After the conduct of an evidentiary hearing, Judge Stout determined that the statement made by appellee at police headquarters was the product of custodial interrogation and that appellee did not knowingly, intelligently, and voluntarily waive her rights to remain silent and to be represented by counsel during questioning. Specifically, the court found that the failure of the assigned detective to inform appellee that the victim of the shooting had died prior to her waiver of rights renders the waiver ineffective. Regarding the search, the warrant did not specify videotapes to be seized, and, therefore the court found they were not within the scope of the warrant.

On November 26, 1989, appellee shot and killed Bryan Edwards. The shooting occurred in the bedroom of appel-lee’s apartment. Appellee summoned the police to her residence and reported to them that she had been raped by Edwards and she shot him to protect herself. Appellee was taken to police headquarters where she was questioned by a homicide detective. She recited a history of difficulties with the victim, her boyfriend until of late, and explained the occurrence of the shooting. After approximately ten hours at the police station, she left with her family. She was arrested on homicide charges on January 12, 1990. Appel-lee was also charged with arson for the firebombing of the victim’s automobile thirteen days before the killing. The hearing on the suppression motion was on November 1 and 2, 1990. By order signed November 20, 1990, Judge Stout joined all charges for trial and made the suppression order applicable to both the murder and arson cases.

The scope and standard of review of an order suppressing evidence is well-established:

We must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the [suppression] court’s findings of fact if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).
Commonwealth v. Lagana, 517 Pa. 371, 375-376, 537 A.2d 1351, 1353-1354 (1988). See also, Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-763 (1989). “We will ... affirm the decision of the suppression court ‘if it can be sustained for any reason whatsoever, even if the [suppression] court offered an erroneous reason to support its action.’ ” Commonwealth v. Bowers, 400 Pa.Super. 377, 381, 583 A.2d 1165, 1167 (1990), quoting Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 309-310, 422 A.2d 1126, 1131 (1980). See also: Commonwealth v. Shaw, 494 Pa. 364, 368 & n. 1, 431 A.2d 897, 899 & n. 1 (1981); Commonwealth v. Nelson, 320 Pa.Super. 488, 493-494, 467 A.2d 638, 641 (1983).

Commonwealth v. Bagley, 408 Pa.Super. 188, 193, 596 A.2d 811, 813 (1991).

When the defendant fails to present any witnesses, the uncontradicted evidence submitted by the Commonwealth shall be considered on review. Commonwealth v. Davis, 407 Pa.Super. 415, 595 A.2d 1216 (1991).

In keeping with its obligation to enter a statement of findings of fact, Pa.R.Crim.P. 323(i), the lower court made the following findings of fact, relevant to the statement, which are supported by the record:

1. About 1:22 p.m., Sunday, November 26, 1989, police responded to a call from the second floor rear apartment, 1830 Green Street, Philadelphia, Pennsylvania.
2. Upon their arrival, they discovered the defendant, Myla Friedman, was present and that the victim, Bryan Edwards had been shot. He was removed to Hahne-mann Hospital where he was pronounced dead at 2:05 p.m.
3. At 2:25 p.m. the defendant was transported to Homicide Division of the Philadelphia Police Department by Sgt. Kelley. There she met Detective Guster Richardson.
4. Detective Richardson completed Form 72-229 on which he recorded biographical data including the fact that the defendant had a Bachelor’s Degree from Temple University and was a student at the Law School of Temple University. He also noted that the defendant did not appear to be under the influence of drugs.
5. After Form 72-229 was completed, Detective Richardson gave defendant the Miranda warnings, asked the Miranda questions, and received answers which indicated the defendant wished to give a voluntary statement.
6. Even though Detective Richardson knew at the time he read the Miranda warnings that the victim was dead, having been told of that fact by other officers at the scene, and despite the fact that the defendant asked him a couple of times whether or not the victim was dead, Detective Richardson told her that the victim was in grave condition and urged her to speak to him as quickly as possible.
Detective Richardson then proceeded, at 3:12 p.m., to tell the defendant that he was questioning her about “the shooting of Bryan Edwards.”
7. The defendant gave Detective Richardson a brief oral recitation of what happened in her apartment and then gave him a 15-page statement followed on a 16th page by a sketch of her apartment.
8. The written statement was begun at 3:25 p.m., one hour and twenty minutes after the victim had been pronounced dead.
9. The defendant was given water between 3:55 and 4:00 p.m., at which time the statement was resumed.
The defendant was taken to the ladies’ room at 4:40 p.m. and the statement continued at 4:46 p.m.
10. At 5:30 p.m., Mrs. Pamalyn Friedman, the defendant’s stepmother, her son and sister, arrived at the Police Administration Building from Mt. Vernon, New York and sought to see the defendant but were denied permission. Instead, they were directed by the detectives, one of whom gave Mrs. Friedman his card, to Chinatown for dinner. They followed the detectives’ suggestion, went to dinner but returned to the Police Administration Building some one and a half hours later again to be denied permission to see the defendant.
11. Mrs. Friedman inquired as to whether the defendant had been raped and was told by one of the detectives that there had been no rape but that the sexual relations had been voluntary.
12. At 5:45 p.m., two hours and twenty minutes after the statement had begun, the defendant was told that the victim had died.
13. The defendant was not rewarned of the Miranda rights for the shooting death rather than a shooting about which she had been warned earlier.
14. Even though the defendant had appeared somewhat upset at the beginning of the statement, when she was being questioned about a shooting, she became more upset upon learning of the victim’s death and she began to cry.
15. The defendant declared she had been raped and cut but the detectives made no effort to verify the claim of rape.
At 6 p.m., they did have her checked by a policewoman, Carmen Ortiz, to determine whether she had been cut as she claimed. The defendant indicated she did not wish to go to the hospital.
16. At 6:05 p.m., the defendant was given water and she remained alone until 6:25 p.m., when the statement was resumed. It was completed at 6:40 p.m.
17. Between 6:40 and 7:10 p.m., the defendant read the statement and between 7:10 and 7:15 p.m. she made corrections on the statement and signed it.
18. From 7:15 to 10:25 p.m. the defendant was alone. During that time, she was given a note from her husband, Walter Kusmenko, was taken to the ladies’ room and twice was given water.
19. At 10:25 p.m., the defendant requested to speak to Officer Carmen Ortiz, and she was alone between 10:30 and 10:50 p.m.
20. At 10:50 p.m., the defendant was taken by Officer Ortiz to the Identification Unit for photographs of her scarred chest. There she remained until 11:20 p.m.
21. Even though Jerry Friedman, the defendant’s uncle, was present at the Roundhouse during part of the time the defendant was being questioned, the defendant only saw him as she passed the waiting area where he was seated while she was on the way to have her chest photographed.
22. From 11:20 to 11:28 p.m., the' defendant was alone.
23. From 11:28 p.m., Detective Richardson and Sgt. Finn asked the defendant to extend the interrogation time. At 11:38 p.m., she signed a rather inartistic [sic] form which said, among other things:
24. The questioning resumed and three and a half additional pages were written. The statement was completed, read and signed at 12:36 a.m., November 27, 1989.
25. At 12:38 a.m., November 27, 1989, the defendant was released and she left with her uncle after having been in custody ten hours and thirteen minutes.

Notes of Testimony, Nov. 2, 1990, 199-204.

After making these factual findings, the lower court concluded that suppression of the statement was mandated by the federal constitution. The court determined that since appellee was only advised she was being questioned about a “shooting” and not about a “shooting death” or murder, she was not aware of the general nature of the transaction giving rise to the charges. The court reasoned as follows:

The transaction is not of the same nature. A shooting is an aggravated assault and battery, a felony of the second degree, for which the sentence may range from a fine not to exceed $25,000, or a sentence of not more than ten years, or both. A shooting death is a homicide for which a conviction of murder in the first degree mandates a sentence of life imprisonment or death. The difference between the two crimes is of such distinction and dynamic difference, physically and legally, that if the death of the victim is known by the interrogator at the time the waiver is signed, the interrogator must advise the suspect of the death and not merely of the aggravated assault.

Lower Court Opinion, November 14, 1990, at 9.

The conclusion reached is not supported by the law and is an inadequate basis upon which to order suppression of appellee’s statement.

The United States Supreme Court addressed the issue of a suspect’s being warned of the scope of interrogation in Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987). In Spring, the defendant was arrested after he sold stolen firearms to undercover agents of the Bureau of Alcohol, Tobacco & Firearms. Prior to this arrest, an informant had told the agents that Spring had killed a man in Colorado. After Spring was advised of his Miranda rights, he waived them all and signed a statement that he was willing to answer questions. After the agents asked him about the firearms transaction, they asked him if he had ever shot anyone. Spring indicated yes, but denied any knowledge of the Colorado killing. Two months later state officers questioned Spring. He again waived his rights, and then confessed to the killing. The issue before the Supreme Court was whether the first statement was obtained under circumstances which violated Miranda since Spring had not been informed of potential subjects of interrogation. The Court found that it had not.

The Court held, “a suspect’s awareness of all the possible subjects of questioning in advance of questioning is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.” 479 U.S. at 577, 107 S.Ct. at 859, 93 L.Ed.2d at 968. Although held on a firearm charge, Spring could validly waive his Miranda rights without being informed that the police were investigating a murder and that the questioning related to the murder investigation.

Pennsylvania state court cases, decided both before and after Spring, apply the Fifth Amendment and reach the same result. In Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553 (1977), the supreme court stated that there was no requirement that interrogating officers affirmatively provide information to the suspect as to the crime under investigation; rather the Commonwealth must show that the defendant knew of the occasion for the interrogation. The court imposed upon the Commonwealth the burden of showing by a preponderance of the evidence that the suspect is aware of the subject matter of the interrogation.

This burden may sometimes be satisfied by the establishment of circumstances attending the interrogation, such as the prior statements of the suspect, see Commonwealth v. Cooper, supra, [444 Pa. 122, 297 A.2d 108], or that fact that interrogation follows hard upon the criminal episode and there is no circumstance lending ambiguity to the direction and purpose of the questioning.

Id., 475 Pa. at 23, 379 A.2d at 556.

In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), the court reiterated the standard that a suspect must have “ ‘an awareness of the general nature of the transaction giving rise to the interrogation,’ in order to make an intelligent and understanding waiver of his rights.” Id., 502 Pa. at 485, 467 A.2d at 293, quoting Dixon, 475 Pa. at 22, 379 A.2d at 556. The defendant in Travaglia claimed that his waiver of Miranda rights was invalid because the pre-interrogation warning form listed only firearms and resisting arrest charges. The court found that even if the officers did not tell the suspect that, in addition to violation of the Uniform Firearms Act and recklessly endangering another person, four homicides were under investigation it was not possible to find an ambiguity in the suspect’s mind about the purpose of the interrogation. The court held that the facts that the interrogation was on the same day as the most recent homicide and that the defendant and a co-defendant had handed the weapon used in that homicide to police less than an hour before arrest clearly established that the defendant was aware of the general nature of the transaction. It stated that to find otherwise would be patent hypothesis and fantasy. Id., 502 Pa. at 487, 467 A.2d at 294.

In Commonwealth v. Moss, 518 Pa. 337, 543 A.2d 514 (1988), the supreme court noted that it has never held that a suspect must be informed of each and every crime under investigation. Id., 518 Pa. at 341, n. 1, 543 A.2d at 519, n. 1. It affirmed that the standard for proving a knowing and intelligent waiver was establishment of the circumstances attending the interrogation and the lack of ambiguity as to the questioning’s direction and purpose.

This court in Commonwealth v. Carr, 398 Pa.Super. 306, 580 A.2d 1362 (1990) found that where a suspect is arrested on a fugitive warrant and waives his Miranda rights, he may be questioned about a shooting which resulted in a woman’s death.

In examining the circumstances of this case we find there can be no question but that appellee was aware of the general nature of the transaction about which she was interrogated. Appellee was fully aware that she shot Bryan Edwards, that he had shown no signs of life when he was taken by the emergency personnel from her apartment to the hospital, and that it was this transaction that the police were interested in. Whether the victim was known to be dead or alive is a fact of no legal consequence in consideration of appellee’s waiver of her Miranda rights. Even if it were, the waiver of rights form signed by her stated that she was in the homicide division of the police department and that the interrogator, Detective Richardson, was a homicide detective. The questioning took place within two hours of the police arrival at appellant’s apartment and discovery of the victim.

The appellee argues that police deception or trickery caused her waiver of rights to have been made unknowingly and unintelligently. The appellee points to Detective Richardson’s evasive answer that Edwards was in “grave condition” when appellee asked on several occasions if he was okay. This is not the sort of police subterfuge which would vitiate the validity of the waiver. To render a confession inadmissible the police fabrication must be likely to cause it to be untrustworthy. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989). Since appellee was not legally entitled to know whether the victim was still alive or not, see supra, that Detective Richardson gave her a possibly incomplete answer to her inquiries does not cause the confession to be untrustworthy. Appellee knew at the time of questioning that she had shot Edwards in the neck. She was present in her apartment as unsuccessful emergency efforts were made to resuscitate him. She knew she was being questioned by a homicide detective. Nothing said by Detective Richardson in response to appellee’s inquiries about Edwards was trickery going to the trustworthiness of appellee’s confession. See, Commonwealth v. Danforth, 395 Pa.Super. 1, 69, 576 A.2d 1013, 1047-1048 (1990) (Kelly, J., dissenting) (collecting cases upholding confessions after police had supplied false information.)

We find that the lower court erred in concluding that appellee had to be told that it was a “shooting death” under investigation before her waiver of Miranda rights was valid.

In the alternative, the appellee argues that deviation from the Miranda warnings constituted an improper inducement for her to waive her rights. She points to Detective Richardson’s statement that “it was very important to her” if the police could speak with her and find out what happened in her apartment.

Initially, we note that the strict incantation of Miranda rights upon which appellee bases her argument has been rejected by the U.S. Supreme Court. The case Commonwealth v. Johnson, 484 Pa. 349, 399 A.2d 111 (1979) cited in appellee’s brief was referred to in Duckworth v. Eagan, 492 U.S. 195, 201, n. 2, 109 S.Ct. 2875, 2879, 106 L.Ed.2d 166, 175-176, n. 2 (1989) as being among the state court cases which have incorrectly found that language that “if and when you go to court a lawyer will be appointed” did not satisfy Miranda. On the contrary, Duckworth held that Miranda warnings are not defective which inform a suspect that a lawyer will be appointed “if and when you go to court.” Therefore, reliance upon the holding and rationale of Johnson is no longer appropriate.

There is no question that appellee was fully informed of her Miranda rights. The question is whether being told it was important to her to speak to Detective Richardson affected the validity of the waiver. To decide this issue the context in which the statement was made must be considered. The suppression court found that Detective Richardson told appellee it was important that she speak with him as quickly as possible before he took basic biographical information from her, recorded on Form 75-229, and before he began to advise her of her Miranda rights. There is no requirement that a suspect be advised of any Miranda rights where the police seek biographical, general information for completion of a Form 75-229. Commonwealth v. Jasper, 526 Pa. 497, 587 A.2d 705 (1991).

We find that Detective Richardson’s statement was not a sufficient inducement to render appellee’s waiver invalid. He made no promise of a benefit or of special consideration as he administered the warnings. Nor did he make such representations after he accurately informed appellee of all her Fifth Amendment rights and asked her specific questions regarding her understanding and waiver of those rights. There is no indication in the record that appellee did not understand her rights nor that she placed any importance upon the detective’s earlier statement. This lack of any demonstrable concern or confusion on appellee’s part regarding her right to remain silent or her right to counsel distinguishes this case from Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409 (1989). In Gibbs, the statement found to be an inducement was made to defendant after he was read his rights and after he asked a question, “What good would it do me to tell you?” This sequence of events rendered the detective’s response of possible benefit by telling the court of defendant’s cooperation an inducement.

The statement at issue was uttered prior to the commencement of warnings and even prior to the gathering of biographical information. There is no causal link between it and appellee’s decision to waive her rights. It did not constitute an inducement to waive them.

For the above reasons, we find that the lower court committed legal error in suppressing appellee’s written statement. We reverse that portion of the order regarding the statement.

The second aspect of the lower court’s order before us for review is the suppression of physical evidence. The Commonwealth alleges that the items seized, particularly videotapes, were obtained pursuant to a valid search warrant, or alternatively, were subject to the plain view doctrine. The lower court held that lack of particularity in the warrant requires suppression of all items not specifically mentioned within the four corners of the warrant.

The search warrant identifies the following items to be searched for and seized:

Photos, sketches, 38 caliber revolver and other evidence of a crime, blood

The probable cause section of the affidavit states as follows:

On Sunday, November 26,1989, at 1:29 P.M., police of the 9th District responded to a radio call “1830 Green Street 2nd floor rear rape in progress.” Police officer Dorsey Lay #5301 responded and upon his arrival he gained entry to the apartment, at which time he observed a black male lying on the bed with a wound on the left side of his neck. The male was partially covered and a knife was laying on his chest. The officer also observed a silver 38 caliber revolver lying on the floor, near the closet. Rescue arrived and transported the victim who was identified as Bryan Edwards, to Hahnemann Hospital. Edwards was treated and pronounced dead at 2:05 P.M. by Dr. Brzozowski.
It is requested that this search and seizure warrant be approved for the purpose of processing the scene.
The warrant states that the violation is murder.

The order entered on November 2, 1990 provided that, “Written statements and videotapes are suppressed along with any thing not particular [sic] mentioned within the ‘four corners’ of the search warrant.”

This court has recently conducted a thorough analysis of the particularity requirement of a search warrant. In Commonwealth v. Bagley, 408 Pa.Super. 188, 596 A.2d 811 (1991), we examined relevant federal and state constitutional provisions and case law pertaining to the need to particularly identify “as nearly as may be” possible items to be seized. As noted in Bagley, the supreme court’s decision in Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d 896 (1989) lays out the standard for determining compliance with the particularity requirement:

The language of the Pennsylvania Constitution requires that a warrant describe the items to be seized “as nearly as may The clear meaning of the language is that a warrant must describe the items as specifically as is reasonably possible. This requirement is more stringent than that of the Fourth Amendment, which merely requires particularity in the description. The Pennsylvania Constitution further requires the description to be as particular as is reasonably possible. See Commonwealth v. Reese, 520 Pa. 29, 31-32, 549 A.2d 909, 910 (1988) (Nix, C.J., dissenting) (Pennsylvania particularity requirement more stringent than that of the Fourth Amendment because Pennsylvania particularity requirement precedes probable cause requirement).
was probable cause. Any unreasonable discrepancy between the items for which there was probable cause and the description in the warrant requires suppression. An unreasonable discrepancy reveals that the description was not as specific as was reasonably possible.

Commonwealth v. Grossman, 521 Pa. 290, 296-297, 555 A.2d 896, 899-900 (1989) (footnote omitted).

Id., 408 Pa.Superior Ct. at 196-197, 596 A.2d at 814-815.

In Bagley, the warrant was issued for, “Address book of decedent, a diary of decedent, or other materials providing names and addresses of relatives or persons close to the decedent_” Id., 408 Pa.Superior Ct. at 206-208, 596 A.2d at 820. Taken pursuant to this warrant were, inter alia, the following:

(3) one letter found in kitchen dated 4/4/89 signed Charles Bagley; (4) one envelope found in Kitchen-Selective Insurance, New Jersey; (5) one telephone bill dated 3/21/89 found in kitchen; (6) airplane baggage claim tickets for Pan Am #822635; (7) paper with passport information and business card for travel agency; (8) address book found in living room; (9) Century 21 name tag from John Matthews, Inc. Realtors; (10) note from front door of residence from Sonja White; (11) various phone numbers and addresses; (12) letter from Honeywell Protection Services to Charles Bagley; and (13) letter from Barclays Bank in England dated 3/13/89.

Id., 408 Pa.Superior Ct. at 207, 596 A.2d at 820.

This court affirmed suppression of the above items because they did not constitute evidence of the commission of a crime. Similarly, in the instant case we conclude that the videotapes were not evidence of a crime, nor were they described “as nearly as may be” in the warrant. The affidavit accompanying the warrants adds nothing in terms of particularity, but merely states that the search and seizure warrant was sought for the “purpose of processing the scene.”

We reject the Commonwealth’s argument that the videotapes are encompassed within the designation “photos.” From reading the warrant and affidavit we agree with the lower court that in order to seize the tapes the officers would have had to describe them more particularly in the warrant. From the context of the warrant it would seem that the “photos and sketches” referred to would be taken by the police officers in the processing of the crime scene and would constitute “visual information” authorized by the search warrant. See, id., 408 Pa.Superior Ct. at 212, 596 A.2d at 823. Certainly the sort of rummaging cautioned against by this court in Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d 24 (1982) cited in Bagley, 408 Pa.Super. at 194, 596 A.2d at 814 would be sanctioned were we to adopt the Commonwealth’s reasoning. To apply the interpretation urged by the Commonwealth would allow officers “to pick and choose among an individual’s possessions to find which items to seize.”

For the above reasons we affirm the suppression order as it relates to the videotapes.

The final matter before us is the remainder of the physical evidence, other than the videotapes. In its opinion, the lower court only referred to the videotapes. Its order did extend to anything not in the four comers of the warrant. From our review of the warrant, affidavit, and property receipts, it appears that nothing else that was seized went beyond the four corners of the warrant.

The order is reversed insofar as it suppressed the statement made by appellee. The order is affirmed as it relates to the videotapes. Case remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished.

      . The Commonwealth has certified that the prosecution of the case is substantially handicapped by the effect of the suppression order. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Lindsay, 406 Pa.Super. 638, 595 A.2d 86 (1991).

      . The oral statements made by appellee in her apartment were not challenged and were not subject to the suppression order.

      . The Commonwealth was represented by the state Attorney General’s Office since Ms. Friedman, a law student, had worked as a legal intern in the Philadelphia District Attorney’s Office for the three-month period preceding the killing.

      . The lower court only considered the application of the federal constitution to appellee’s claims of violation of her rights. This limitation to federal law was clearly proper since appellee only alleged violation of the United States Constitution in her omnibus pretrial motion and in all oral presentations before the lower court. Nowhere did defense counsel state that reliance was placed upon guarantees in the state constitution; nor has there been any discussion, on a substantive level, of whether there exists any difference between the protections offered by the federal and state constitutions. Therefore, our analysis is confined to federal law. See, Commonwealth v. Santiago, 528 Pa. 516, 599 A.2d 200, 201, n. 7 (Pa.1991).

      . The lower court found that appellee was subject to custodial interrogation for Miranda purposes. On appeal, the Commonwealth argues that the appellee was not under arrest or in custody during her presence at the Police Administration Building. We are inclined to agree with the lower court that appellee could reasonably believe she was not free to leave police headquarters during the period of interrogation. Given the adequacy of the Miranda warnings, we do not rule whether appellee was in custody or not, but rather we assume arguen-do that she was in custody and entitled to the protection of Miranda warnings.

      . Unexplained is the failure of the lower court to consider Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987), and the state court precedent cited above. (The Commonwealth referred to Spring during argument at the suppression hearing.) These cases had all been decided prior to the November 2, 1990 order and the November 14, 1990 opinion. The misapplication of the law by the lower court is made yet clearer by two cases decided after the date of its opinion. Our supreme court recognized in Commonwealth v. Santiago, 599 A.2d 200 (Pa.1991) that the Fifth Amendment right to counsel was "non-offense-specific", as held in McNeil v. Wisconsin, 501 U.S. -, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). These cases pertain to a suspect’s request for counsel and whether the presence of counsel is required after a suspect invokes the Fifth Amendment right to counsel during a prior questioning session concerning a different offense. In Santiago, the court held that although different offenses were involved, the invocation of the right to counsel under the Fifth Amendment was not offense specific, and, therefore, subsequent questioning was impermissible.
      Because we find that the initial warnings were adequate, we do not reach the issue regarding the re-warning at 11:28 p.m. Appellee never requested an attorney or sought to terminate the interrogation. No re-application of the Miranda warnings was required.

      . Unlike the appellee, the defendant in Commonwealth v. Singleton, 439 Pa. 185, 266 A.2d 753 (1970) was never properly informed of his Miranda rights. Instead, he was told his statements could be used for or against him. This misinformation is perhaps not surprising since Singleton was warned of his constitutional privileges on April 17, 1966, and Miranda was decided on June 13, 1966. We do not find this case apposite to the one at bar where a complete, correct rendition of rights was given.

      . These tapes, although not included in the certified record to this court, have been described as "video love letters”, one being from the victim to the appellee and the other from the appellee to the victim.

      . There is no issue regarding probable cause for the issuance of the warrant.