author: ROWLEY, Judge:

text:
    565 A.2d 458
    COMMONWEALTH of Pennsylvania v. William Irving DAVIS A/K/A Bean Davis A/K/A William Irwin Davis A/K/A William Boo Davis, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 31, 1989.
    Filed Oct. 16, 1989.

      Melaine S. Rothey, Asst. Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Com.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   ROWLEY, Judge:

Is the statement “I have a lawyer,” made by a defendant at his preliminary arraignment, sufficient to bar police-initiated questioning several days later? This is one of several issues presented by appellant in his appeal from the judgment of sentence imposed following his conviction by a jury on charges of robbery, conspiracy, theft, receiving stolen property, recklessly endangering another person, two counts of third degree murder and three counts of homicide by vehicle. Having carefully considered the arguments of counsel, and the record as certified to us, we affirm.

The facts are as follows: On October 16, 1984, Jobe Wright, Terrance George and appellant drove through the Monroeville Mall parking lot in a red Chevrolet Camaro. George reached out of the car and snatched the purse of Marjorie Wilson. Appellant and his companions then exited the parking lot and proceeded along Route 22 west-bound towards Pittsburgh. After travelling approximately one-half mile, appellant, who was driving, lost control of the vehicle and crossed over into the lanes of oncoming traffic. In the tragic collision which ensued, an elderly couple died. Terrance George also lost his life.

Appellant fled the scene of the accident on foot. He turned himself in to police several days later. Jobe Wright, who was injured and in a dazed state, proceeded one-quarter mile on foot to the parking lot of Sears, where he was attended to by a Monroeville Police Officer. Eventually, paramedics took Wright to the Forbes Health System. Wright recovered from his injuries and stood trial with appellant on one charge relating to the fatal collision.

Following the jury’s guilty verdict, appellant filed timely post-verdict motions which were denied. He was sentenced to an aggregate term of imprisonment of not less than 18 years, 3 months nor more than 36½ years. On appeal he presents five issues consisting of two alleged pre-trial errors and three alleged trial errors.

I.

Appellant first argues that the trial court erred in failing to suppress allegedly inculpatory statements made by him to the police while he was incarcerated. The precise question before us is whether the statement “I have a lawyer” made by a defendant at his preliminary arraignment in response to the magistrate’s statement that he has the right to representation by counsel and that counsel would be provided if he cannot afford it, is an invocation of his Fifth Amendment right against self-incrimination as protected by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Appellant specifically claims that his statement, under Edwards, was sufficient to bar the police from initiating any subsequent interviews with him.

Appellant has not claimed that his Sixth Amendment right to counsel has been violated. Nor has he claimed that the Miranda warnings given to him before questioning were inadequate. Additionally, there has been no suggestion that the statements were made involuntarily. Thus, the issue raised by appellant is very narrow: whether appellant “expressed his desire to deal with the police only through counsel,” prior to the police-initiated custodial interrogation that elicited the statements he now argues should have been suppressed. The trial court concluded that appellant did not invoke his right to the presence of counsel during questioning. For the reasons which follow, we agree.

A.

In the landmark case of Miranda v. Arizona, supra, the U.S. Supreme Court held that where an “individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Id., 384 U.S. at 474, 86 S.Ct. at 1627. Fifteen years later, in Edwards v. Arizona, supra, the Supreme Court, as a corollary to its earlier decision in Miranda, adopted a bright-line rule “that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [and that an accused having] expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. at 484-485, 101 S.Ct. at 1884-1885.

In the post-Miranda and post-Edwards case of Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), the Supreme Court noted that the rigid prophylactic rule of Edwards

embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.

Id. at 95, 105 S.Ct. at 492-493. It is the threshold inquiry with which we are concerned in this case.

B.

Appellant was taken into custody during the late evening hours of October 18th or 19th, 1984, two or three days after the collision. He was driven to the Public Safety Building in Pittsburgh, where his preliminary arraignment occurred in the early morning hours of the next day. Appellant contends that the invocation of his right to have counsel present before or during questioning occurred at the preliminary arraignment when he stated, “I have a lawyer.” The questioning which appellant claims violated his rights occurred on October 21st and October 25th. On October 21st Officer William Naccarati of the Wilkins Township Police Department read appellant his Miranda rights and asked appellant whether he understood them. Appellant replied that he did, and signed a written form containing his rights. That document was entered into evidence at the April 22, 1985 Suppression Hearing as Commonwealth Exhibit Number 4.

On October 25th Lieutenant Louis Smith of the Monroe-ville Police Department sought to interview appellant. Lt. Smith read appellant his Miranda rights. Appellant initialed each Miranda question with his initials, “WD,” indicating his understanding of the question. This form, containing appellant’s initials, was introduced into evidence at the April 12, 1985 suppression hearing as Commonwealth Exhibit Number 1. After signing and initialling both forms, appellant proceeded to voluntarily give statements which he claims are incriminating.

To reiterate, the narrow question before us is whether appellant’s statement to the magistrate at the October 19th or 20th preliminary arraignment is sufficient to bar policeinitiated interrogations on October 21st and 25th under Edwards. In footnote 3 of Smith v. Illinois, supra, the Supreme Court indicated the wide range of positions taken by courts on this issue:

Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. Still others have adopted a third approach, holding that when an accused makes an equivocal statement that “arguably” can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to “clarify” the earlier statement and the accused’s desires respecting counsel.

Smith v. Illinois, supra, 469 U.S. 91, 96 n. 3, 105 S.Ct. 490, 493 n. 3 (citations omitted). The Supreme Court found no need to resolve these conflicting positions in Smith because judgment “must be reversed irrespective of which standard is applied.” Id. at 96, 105 S.Ct. at 493. Thus, the wide variety of approaches to the issue continues throughout the various state and federal jurisdictions.

The case of Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986), though a plurality decision, suggests that our Supreme Court would not adopt the first of the three schools of thought outlined in Smith v. Illinois. Reading all of the opinions in Hubble, it seems apparent that the Court would adopt the view that not every use of the word “lawyer” would result in invocation of a defendant’s rights under Edwards. In Hubble, Justice Larsen wrote,

To hold that every utterance of the word “lawyer” automatically erects the Edwards’ “cone of silence” around the accused, thus insulating him from all further police-initiated questioning and communication, would be far too rigid and would not serve the interests or needs of justice.

509 Pa. at 511, 504 A.2d at 175 (emphasis in original). Accord, Collins v. Francis, 728 F.2d 1322 (11th Cir., 1984) (“[Defendant’s] request for counsel at his arraignment did not place his request in the Miranda/Edwards fifth amendment right-to-counsel posture”).

In the case at bar, the evidence as to what transpired at the preliminary arraignment is not totally clear. No court reporter was present, the participants’ memories of the proceeding are sketchy, and appellant did not testify regarding the proceeding. Nevertheless, in considering the evidence in the light most favorable to the appellant, we have found that he stated “I have a lawyer.” Clearly, however, this comment was made in response to the magistrate’s statement that appellant has a right, pursuant to the Sixth Amendment, to representation by counsel after the initiation of judicial proceedings. Thus, appellant’s response does not even begin to approach a declaration that he wanted to have a lawyer present with him during questioning, pursuant to his Fifth Amendment rights. In Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987), the Supreme Court noted that “[t]he fundamental purpose of the Court’s decision in Miranda was ‘to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process.’ ” 107 S.Ct. at 831, quoting Miranda, 384 U.S. at 469, 86 S.Ct. at 1625 (emphasis supplied by Chief Justice Rehnquist in Barrett). Not having invoked his right to have counsel present during questioning at his preliminary arraignment, appellant was properly given the choice of making a statement when his Miranda rights were read to him and understood by him on October 21st and 25th.

We emphasize that our decision in no way diminishes the importance of Edwards, Smith v. Illinois, and Barrett in safeguarding a defendant’s right to have counsel present at questioning. In Edwards, the defendant stated during interrogation “I want an attorney present before making a deal.” 451 U.S. at 479, 101 S.Ct. at 1882. In Smith, the defendant was asked during interrogation whether he wanted a lawyer present at questioning. He replied, “Uh, yeah. I’d like to do that.” 469 U.S. at 93, 105 S.Ct. at 491. In Barrett, appellant stated during questioning that he was willing to talk about the incident, but he did not want to put anything in writing until his attorney arrived. 107 S.Ct. at 830.

In the case at bar, however, appellant’s statement that he had a lawyer, directed to the magistrate, was made completely outside the interrogation setting, several days prior to any questioning. We find no precedent requiring us to hold that appellant’s statement under these circumstances “erected the Edwards cone of silence” so as to bar subsequent police-initiated questioning. A decision to the contrary would fly in the face of Hubble, supra. Therefore, the trial court properly refused to suppress the statements made to police by appellant.

II.

Appellant next argues that the trial court erred in failing to sever the cases of appellant and his co-defendant, Jobe Wright. He insists that (1) their defenses were at loggerheads because each insists he was not driving, and (2) the fact that fewer charges were pending against his co-defendant predisposed the jury towards finding him guilty. We disagree.

We are governed by the following standard of review:

[Questions of consolidation or severance of defendants for trial rest in the discretion of the trial judge and his rulings on such matters will not be disturbed on appeal except for manifest abuse of discretion. When the crimes charged arise from the same acts or series of acts and much of the same evidence is necessary or applicable to all defendants, a joint trial is ‘permissible, if not advisable.’ Especially where a conspiracy to commit crime is alleged, the defendants should be tried together, ‘unless it can be shown that one or more of the defendants will be actually prejudiced by doing so.’

Commonwealth v. Hamm, 325 Pa.Super. 401, 409-10, 473 A.2d 128, 132-33 (1984) (citations omitted). Our Court stated as a general proposition in Hamm that “joint trials should not be ordered where defendants assert antagonistic defenses.” Id., 325 Pa.Superior Ct. at 411, 473 A.2d at 133. However, in Commonwealth v. Bennie, 352 Pa.Super. 558, 508 A.2d 1211 (1986), we stated further that

[consolidation is proper unless the defenses are ‘irreconcilable and exclusive.’ The defenses must conflict at the core; mere divergence on peripheral matters or mere hostility between co-defendants does not require severance.

Id., 352 Pa.Superior Ct. at 566-67, 508 A.2d at 1215 (emphasis added; citations omitted).

Appellant’s first claim is that his defense conflicted with that of his co-defendant, Wright, so as to justify separate trials. The gravamen of his claim is that each defendant claimed that he was not driving the car when it crashed.

The “defenses” were presented in the following manner. Appellant gave a statement to police after he turned himself in, in which he asserted that he had not been driving the car. Appellant stated he thought Terrance George had been driving, although he was not sure. Appellant then changed his statement to say that Terrance George was in the passenger seat at the time of the purse snatch. N.T. at 487-488. Appellant did not testify at trial, but his statements, containing the above assertions, were admitted into evidence. Jobe Wright testified at trial, however, and stated that appellant was driving when he picked him (Wright) up. Terrance George got into the front passenger’s seat, and Wright climbed into the back seat. Thus, it is clear from the record that Wright’s testimony places appellant in the driver’s seat during the entire series of events.

The fact that appellant and his co-defendant each claim not to have been driving at the time of the collision is not an “irreconcilable and exclusive” defense, especially under the circumstances of this case. First, with three people in the car the jury could have found that both Wright and appellant were not driving when the collision occurred. For this reason alone, the defenses did not “conflict at the core.” Second, because Wright took the stand, appellant’s counsel had ample opportunity to cast doubt upon the veracity of Wright’s testimony that appellant was driving, and not Terrance George. Therefore, the trial judge did not abuse his discretion in refusing to sever the cases.

On the issue of severance, appellant cites no cases for, and we find no support for, the proposition that appellant was prejudiced by the fact that his co-defendant, Jobe Wright, had fewer charges pending against him than did appellant. Thus, we find no merit to this argument. Therefore, since our review of the record does not disclose the existence of any prejudice to appellant or any abuse of discretion by the trial judge in denying appellant’s motion to sever, he is not entitled to a new trial on the basis of this issue.

III.

Appellant next argues that the trial court erred in failing to redact the statement “we did a purse snatch” made by his co-defendant, Jobe Wright, to an emergency room nurse. Appellant argues that the statement should have been submitted to the jury as “I did a purse snatch,” so as not to implicate appellant in the crime. Appellant cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in support of this argument.

In Bruton, the Supreme Court held that defendant Bruton was denied his constitutional right to confront the witnesses against him because his co-defendant’s out of court confession to a postal inspector implicating both men in an armed robbery was received in evidence without the co-defendant taking the stand. Justice Brennan, writing for the Court, noted that the confession provided “substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination.” 391 U.S. at 128, 88 S.Ct. at 1623 (emphasis added). Thus, the Court held the confession of the joint defendant inadmissible.

In the case at bar, the statement at issue came about in the following manner. Following the collision, Jobe Wright was taken to a local emergency room for treatment of injuries. Coincidentally, shortly before Wright’s arrival at the emergency room the FBI called to warn medical personnel to be on the alert for young black males who had received facial lacerations in an unrelated bank robbery.

Testimony at trial established that during the course of treating Jobe Wright, Nurse DeStein asked him if he had participated in the bank robbery. Wright responded, “We snatched a purse.” N.T. at 278. Counsel for appellant immediately objected to the introduction of this statement. The objection was overruled, and the statement was admitted. Id.

In this case, appellant was not referred to by name in Wright’s statement to Nurse DeStein. Nevertheless, appellant’s counsel argues on appeal that his client was prejudiced by introduction of the statement because “we” can only refer to the individuals present in the car, one of whom is dead and the other of whom is the appellant. Thus, he claims that under Bruton, the statement is inadmissible and a new trial must be granted. We disagree.

The protections of Bruton are unavailable to appellant for two reasons. First and foremost, the maker of the statement, Jobe Wright, took the stand at trial and was available for cross-examination. Indeed, appellant’s counsel cross-examined Wright at pages 634-40 and 642-44 of the transcript and had ample opportunity to attempt to disprove Wright’s assertion that appellant was involved in the purse snatching incident at the Mall. In a recent decision re-examining Bruton, the Supreme Court reiterated the holding that “where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.” Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1706, 95 L.Ed.2d 176 (1987). Since Wright took the stand at trial, Bruton is not a bar to admission of the statement.

Second, even if Wright had not testified this Court has held, under facts similar to those of the case at bar, that a statement containing references to “other fellows”, “they”, “someone”, “one of the guys”, but not to anyone- by name, does not violate Bruton. Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980), appeal dismissed, 499 Pa. 267, 452 A.2d 1347 (1982); see also Commonwealth v. Howard, 375 Pa.Super. 43, 543 A.2d 1169 (1988) (statement made by a co-defendant to a man who accused “them” of using his car during a murder did not violate Bruton). For both of these reasons we hold that the trial court did not err in refusing to redact the statement made by codefendant Wright to Nurse DeStein regarding the purse snatch.

IV.

Appellant next argues that the evidence presented by the Commonwealth was insufficient to sustain his conviction for third degree murder because such evidence does not support a finding that he acted with malice. He argues primarily that his acquittal by the jury on the second degree (felony-murder) charges conclusively proves that the jury found he did not act with malice in bringing about the deaths of the two elderly victims.

Generally speaking, “[m]alice aforethought is the general intent prerequisite to a finding of murder.” Commonwealth v. Weinstein, 499 Pa. 106, 115, 451 A.2d 1344, 1348 (1982). In analyzing appellant’s argument, however, we must examine the element of malice as it particularly relates to the charge of second degree murder. Our Supreme Court has stated that common law felony murder

is a means of imputing malice where it may not exist expressly. Under this rule, the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony.

Commonwealth v. Yuknavich, 448 Pa. 502, 295 A.2d 290, 292 (1972), quoting Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 224-225, 261 A.2d 550, 553 (1970). Our Court explained further:

[E]ach crime enumerated in the felony-murder statute is a crime of specific intent____ Once such intent is shown, the felony-murder doctrine merely imputes the malice incident to the intentional felony over to the killing

Commonwealth v. Rawls, 328 Pa.Super. 469, 473-74, 477 A.2d 540, 543 (1984). Appellant appears to be arguing that his acquittal by the jury of second degree murder represents a finding by the jury that there was no malice present to support any charge of murder. We disagree for several reasons.

First, our Court has held that “[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence. [The acquittal may be] ... no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Commonwealth v. Parrotto, 189 Pa.Super. 415, 422, 150 A.2d 396, 399 (1959); see also Commonwealth v. Yachymiak, 351 Pa.Super. 361, 505 A.2d 1024 (1986). Thus, to the extent this is viewed by appellant as an inconsistent verdict, Pennsylvania courts offer no basis for reversal. Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971); Commonwealth v. Davison, 243 Pa.Super. 12, 364 A.2d 425 (1976).

Second, legal malice may consist of either “an express intent to kill or inflict great bodily harm” or of a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty” which indicates an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610, 613 (1975). Further, it is well settled in this Commonwealth that legal malice may be inferred and found from the attending circumstances of the act resulting in death. Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973) (emphasis added).

In the case of Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975) our Supreme Court was called upon to determine whether the requisite malice existed to sustain a verdict of murder against a drunk driver who ran down a 14-year-old cyclist in mid-afternoon. Testimony established that the weather was dry and clear, appellant was travelling 60 to 80 miles per hour in the vicinity of a city park, and that the decedent’s body was hurled 115 feet through the air. Our Supreme Court held:

From the evidence presented to the trier of fact, we are satisfied that there was sufficient basis to find the recklessness of consequence and a mind regardless of social duty which is necessary to establish the presence of malice. The intoxicated condition of the driver, the excessive rate of speed which he was travelling, the distance the bodies and bicycles were propelled upon impact, his awareness that this was an area where children were likely to traverse, the absence of any physical or climatic condition which could explain or contribute to the happening of the accident and the appellant’s failure to stop immediately after impact, all exhibit the wickedness of disposition, the hardness of heart, cruelty and recklessness associated with murder in the second degree.

Id., 461 Pa. at 563-64, 337 A.2d 548. Similarly, in the case at bar, the circumstance that appellant was fleeing the scene of a purse snatch, the excessive rate of speed at which he was travelling, the “weaving” of the automobile through traffic, the result of death on impact (or immediately thereafter) of three of the five occupants in the two cars, appellant’s awareness that this was a traffic artery to one of the large area shopping malls, the absence of any physical or climatic condition which could explain or contribute to the happening of the accident, and appellant’s flight from the scene all exhibit the wickedness of disposition, the hardness of heart, cruelty and recklessness associated with third degree murder. Commonwealth v. Taylor, id. Therefore, we hold that there is ample evidence to support the jury’s finding of malice in the manner by which appellant fled from the scene.

Third, and most importantly, our Court has specifically held that a verdict of guilty of third degree murder is not inconsistent with findings of not guilty of first or second degree murder and voluntary and involuntary manslaughter. Commonwealth v. Boccella, 266 Pa.Super. 485, 405 A.2d 923 (1979). In summary, appellant’s argument that the jury’s verdict proves that malice does not exist must fail.

V.

Finally, appellant argues that a mistrial should have been granted due to allegedly improper remarks made by the prosecutor in his closing statement. Our Court has held that “[a] prosecutor has an obligation during closing arguments to present the facts in a manner that will lead the jury to a dispassionate and objective evaluation and will produce judgment warranted by the evidence.” Commonwealth v. Davis, 363 Pa.Super. 562, 583, 526 A.2d 1205, 1219 (1987). “Only those remarks whose ‘unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict’ will necessitate the ordering of a new trial.” Commonwealth v. Goins, 508 Pa. 270, 276-277, 495 A.2d 527, 530 (1985); Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968).

Appellant points to two sections from the prosecutor’s closing which he claims are prejudicial. The first relates to appellant’s location within the automobile:

According to Boo Davis, according to his statement, no one was driving the car. He is in the back seat, Terrance George is in the front passenger’s seat. No wonder the car crashed.

N.T. at 821. Appellant argues that this statement was prejudicial because it misstated the facts and fixed in the jurors’ minds the belief that appellant’s “alleged version of the events was incredible.” We disagree. At most, appellant can claim only that the remark was sarcastic. The record clearly reveals that appellant’s version of the events, as given to the police in his statement, was fraught with uncertainty and ambiguity regarding which of the three occupants was driving the car. The Commonwealth merely emphasized this ambiguity, which already had been apparent to the jury. Moreover, following defense counsel’s objection, and a discussion at sidebar, the assistant district attorney accurately summarized for the jury the contents of appellant’s statement to the police regarding the identity of the driver. Thus, although the prosecutor’s remark was strong and arguably sarcastic, it was based on the evidence presented and we can find no prejudice. Commonwealth v. Davis, supra.

The second allegedly prejudicial remark, according to appellant, is as follows:

Ladies and gentlemen, felony murder. During the perpetration of a felony murder which includes commission or the attempt to commit the crime or the flight therefrom, I submit to you, ladies and gentlemen, Mr. Davis driving that car at 60 to 70 miles an hour down that highway, he is doing it for a reason, to get away to avoid apprehension known only to Mr. Wright and Mr. George what their activity was. What did they do after the car crashes is totally consistent with their behavior while they are driving down the road. While Mr. Davis is driving the car, they are fleeing the area. What do both of them attempt to do after the crash? They don’t stay there and help their friend. They both flee. Flight from the commission of the crime, from the robbery, Elmer and Sarah Burger died for no other reason. They were on that highway while Mr. Davis, Mr. Wright, and Mr. George decided to do a purse snatch at the Monroeville Mall, and because they happened to be on this roadway while these three are trying to get away, they are dead. And that is not right, and the law permits you and gives you the power because you are the representatives of our community, gives you the power to find those men guilty.
I say this is not to happen. We won’t permit this to happen. We won’t permit innocent people to be killed on our highways because this happened while they are out committing crimes such as robbery, and rape, and burglary, and arson. In this case, robbery.
Mr. Davis was driving that car on Route 22 noontime by the Monroeville Mall at 60, 70 miles an hour, somebody on that roadway is going to die, and I submit to you it just happened that it was Elmer and Sarah Burger. It just as easily could have been anyone else that got up on that stand and testified that he was on the roadway that day, Dawn Noel, or Evelyn Catley, Mr. Clark, anybody. The way that car was being driven on that highway at that time of day, someone was going to die.

N.T. at 838-39 (emphasis added). Appellant claims this portion of the prosecutor’s closing was prejudicial in three respects: it inflamed the passions of the jury with unwarranted references to rape, burglary and arson; it contained the unwarranted conclusion that “someone was going to die” on the highway merely because appellant was travel-ling 60 to 70 miles per hour; and it impermissibly “personalized” the incident by hypothetically placing live witnesses who testified at trial in the position of the elderly couple which died.

We find no merit to these arguments. “[A] reviewing court must consider an allegedly improper comment in light of the context in which it occurred and its possible effect on the fact-finder.” Commonwealth v. Martin, 307 Pa.Super. 118, 125, 452 A.2d 1066, 1069 (1982). The reference to rape, burglary and arson was an isolated occurrence which was immediately cured when the prosecutor stated, “[i]n this case, robbery.” Moreover, these remarks were aimed at getting the jury to return a verdict of second degree murder, i.e. felony murder. This the jury did not do, returning a verdict of guilty of third degree murder instead. Therefore, although the prosecutor did not overstep his bounds under the circumstances of this case, neither has appellant demonstrated any prejudice.

Likewise, under the circumstances of this case, we find no merit to the contention that the statement “someone was going to die” was impermissible argument. Our Supreme Court has stated that a prosecutor “must have reasonable latitude in presenting his case and must be free as well to make his arguments with 'logical force and vigor.’ ” Commonwealth v. Johnson, 516 Pa. 527, 530, 533 A.2d 994, 996 (1987), quoting Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 62 (1975). The facts of this case were necessarily gruesome, given that three people died immediately upon impact, or very soon thereafter. The Court in Johnson indicated that the brightest line delineating permissible and impermissible prosecutorial conduct is drawn “at the point where the language and inferences of the summation no longer relate back to the evidence on the record.” Id. That line was not crossed by the prosecution in this instance.

Last, appellant objects to the prosecution’s invocation of witnesses’ names and the suggestion that they, instead of the victims, could have been killed. Ms. Noel, Ms. Catley and Mr. Clark each testified that he or she was on the road, in the immediate vicinity of the accident, and witnessed the accident. Ms. Noel was travelling two car lengths behind the car occupied by the elderly victims. She witnessed the Camaro, travelling at a high rate of speed, cross the median strip and collide head-on with the victims, directly in front of her. “[I]t scared me,” she testified, “because it was coming so fast.” N.T. at 228.

Ms. Catley was travelling toward Pittsburgh, and testified that the Camaro passed her, weaving in and out of traffic, crossed the median strip, and collided with the victims’ car. Mr. Clark also was travelling toward Pittsburgh when the Camaro “cut in front of me, cut real sharp, lost control, slammed on his brakes, went over into the other lane and hit a car.” N.T. at 559. The testimony of each witness reveals in startling reality that he or she came within seconds of losing a life. The prosecutor’s comments, strong as they were, amounted to appropriate references to the testimony.

In conclusion, our review of the record in this case, including the closing arguments of counsel, is devoid of anything which would require us to interfere with the discretion of the trial judge who was in a position to observe the demeanor of the lawyers at trial. Commonwealth v. Johnson, supra.

Judgment of sentence affirmed.

      . See our memorandum decision in Commonwealth v. Jobe Wright, No. 346 Pittsburgh, 1986. As to additional charges pending against Wright, see infra note 6.

      . The Sixth Amendment states, in relevant part: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S.C.A. Const. Amend. 6. The Sixth Amendment provides a right to counsel at a "critical stage” after the initiation of adversary judicial proceedings. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) ("if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid").

      . The record is in conflict on this point. At trial, Officer Naccarati testified that the arrest occurred on October 18, 1984. However, at a post-trial evidentiary hearing held in October, 1986, Officer Naccarati testified that the arrest occurred on October 19th.

      . See cases listed in U.S.C.A. Const. Amend. 5, note 753.

      . The policeman asked: "Who was driving [at the time of the accident]?” Appellant replied: “I don’t know. Terry was driving out there. I don't know who was driving back." N.T. at 484 (emphasis added).

      . The Commonwealth notes in its brief that Wright was a juvenile at the time of the collision. Consequently, the criminal homicide charge was the only charge certified to the Court of Common Pleas. At the time of the suppression hearing, additional charges relating to the purse snatch and collision were pending against Wright in juvenile court. Suppression Hearing Transcript at 51.

      . But see Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). The majority specifically noted: “We express no opinion on the admissibility of a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun.” 107 S.Ct. at 1709, n. 5.

      . Common law felony murder was codified by our legislature with the enactment of 18 Pa.C.S. § 2502:
      (b) Murder in the second degree. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

        . Prior to the 1974 amendment of 18 Pa.C.S. § 2502, "Murder,” the elements of second degree murder were identical to the elements of present-day third degree murder, the crime of which appellant in the case herein was convicted. See Historical Note to 18 Pa.C.S. § 2502. Therefore, the Supreme Court’s holding in Taylor is applicable with equal force to the case at bar.


source: Caselaw Access Project

author: CERCONE, Judge.

license: Public Domain

text:
    565 A.2d 468
    COMMONWEALTH of Pennsylvania v. Anne MARKOVITCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Oct. 25, 1989.

      A. Charles Peruto, Sr., Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the judgment of sentence. After a hearing, appellant, Anne Markovitch’s motion to suppress evidence and non-verbal statement was denied by a suppression court. Appellant was found guilty by a jury of criminal conspiracy, manufacture, delivery or possession with intent to manufacture or deliver a controlled substance and possession of drug paraphernalia. Post-verdict motions were inadvertently filed late by trial counsel. Trial counsel then filed a petition for leave to file a motion for new trial and in arrest of judgment nunc pro tunc. After a hearing, the lower court considered the post-verdict motions and denied them on the merits. Appellant was then sentenced to serve an eleven and one-half (11½) to twenty-three (23) month sentence of imprisonment. A notice of appeal was timely filed by appellate counsel. We affirm.

On appeal, appellant raises three issues for our review: (1) whether trial counsel was ineffective for failing to file timely post-verdict motions; (2) whether the lower court erred in denying the pretrial motion for suppression of evidence; and (3) whether there was insufficient evidence to support the verdicts of guilty. The lower court made findings of fact which are summarized as follows. On May 19, 1987, Philadelphia Narcotics Officer Rosemary Giordano obtained a search warrant pursuant to information she had obtained from an informant. The warrant authorized the search of 3027 Lee Street and the seizure of controlled substances, any devices used in weighing and packaging, and any documents or records reflecting narcotics sales, proceeds from illegal sales and proof of residency. Pursuant to the warrant, seven policemen went to 3027 Lee Street. Two of the officers went to the rear alley behind the house while the rest of the officers, including Officer Giordano and Sergeant William Perkis, went onto the front porch of the house. Officer Giordano knocked on the front door and identified themselves as police and announced that they had a warrant. There was no response. Sergeant Perkis felt vibrations of someone moving about in the house and looked through the front window. He observed four persons, including appellant come from the direction of the basement door and run towards the back door of the house. Both the basement door and the back door were located in the kitchen.

Sergeant Perkis advised that persons were going out the back door and directed that force be used to open the front door. Sergeant Perkis entered through the window and the others entered the front door after using force to open it. Led by Sergeant Perkis, the officers went through the house into the kitchen. Appellant was detained by Sergeant Perkis and Officer Giordano on the steps leading from the house down into the yard. Four others were detained in the yard by the other officers.

Sergeant Perkis returned to the kitchen and proceeded to the basement of the premises to determine if there were any other persons present. He found an octagonal, glass-top table in the basement with chairs around it, and three jackets around several of the chairs. On the table were various drugs and drug paraphernalia. The table was being used to cut and package what appeared to be cocaine. After observing this scene, Sergeant Perkis immediately returned to the yard, announced what he had found and directed that all the detainees be placed under arrest. He then informed the prisoners of their Miranda rights. All five of the prisoners were then brought back into the house.

Officer Giordano searched appellant and found a zip-lock bag containing ⅟16 to ⅛ of an ounce of a white, chunky substance, believed to be cocaine in appellant’s bra. Appellant was wearing a shirt and blue jeans. Before removing her from the house for transportation to the Narcotics Unit, Officer Giordano went into the basement and retrieved a woman’s black leather jacket from one of the chairs around the cutting table. She handed the jacket to appellant, who put it on.

Appellant’s first contention is that her trial counsel was ineffective for failing to timely file post-verdict motions. In her brief, appellant argues that the record reflects no Order granting leave to file the post verdict motions nunc pro tunc. Initially, we note that although there is no order in the record, at the hearing on the post-verdict motions the lower court indicated that it would accept the untimely filed motions and consider them on the merits. The lower court’s opinion further reveals that these motions were considered on the merits. Although this argument was not raised in written post-verdict motions, it is clear that the issue was considered and ruled upon by the lower court. Thus, the claim is not waived for failure to include it in written post-verdict motions. See Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988) (wherein we held that it was improper to deem an issue waived for alleged failure to preserve it for review when the trial court elected to address the issue on its merits).

An alternate resolution to appellant’s first contention is to recognize that she was represented by new counsel on appeal. The issue of ineffectiveness is properly preserved for our review at this juncture since it is the first opportunity when counsel whose effectiveness is being challenged no longer represents appellant. See Commonwealth v. Nauman, 345 Pa.Super. 457, 459 n. 3, 498 A.2d 913, 914 n. 3 (1985) (averments of ineffective assistance of trial counsel are properly made on appeal where that is the first instance in which the appellant is represented by counsel other than trial counsel).

Under either explanation, the issue is properly preserved for our review. There is no merit to appellant’s contention, and in addition she has failed to show any prejudice as a result of trial counsel’s action. See Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)) (wherein we held that to establish a claim of ineffectiveness of counsel a showing must be made of, inter alia, how counsel’s choice of action prejudiced the client). Under these circumstances, trial counsel’s failure to timely file post-verdict motions did not amount to ineffective assistance.

Appellant’s second contention is that the lower court erred in denying the pretrial motion for suppression of evidence. It is the province of the suppression court to make findings of fact and conclusions of law as to whether evidence was obtained in violation of an accused’s constitutional rights. Commonwealth v. Tuck, 322 Pa.Super. 328, 469 A.2d 644 (1983). 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).

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” U.S. Const. amend. IV; Pa. Const. art. 1, § 8. Warrantless searches are, “subject only to a few specifically established and well-delineated exceptions,” per se unreasonable and are therefore prohibited by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). One of the exceptions is that the police may, without a warrant, conduct a search incident to a lawful arrest to prevent destruction of evidence. Commonwealth v. Zock, 308 Pa.Super. 89, 454 A.2d 35 (1982).

We will examine appellant’s arguments in a chronological order. First, in an attempt to claim that she was an innocent bystander, appellant refers to her own testimony that she was just sitting at the kitchen table when police executed the warrant. We note that it is within the province of the trier of fact sitting without a jury to pass upon the credibility of witnesses and the weight to be accorded to the evidence produced. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). The lower court sitting without a jury is free to believe all, part or none of a witness’ testimony in determining the weight to be accorded it. Id. A court reviewing a conviction may not substitute its judgment for that of a trial judge sitting as the fact finder. Id. Considering this standard of review in addition to the constraints associated with reviewing a suppression court hearing as outlined above, we will not question the suppression court’s apparent decision not to find appellant’s testimony credible.

Second, appellant complains that she was under arrest as soon as the police detained her on the steps leading from the house to the back yard and that this “arrest” was without probable cause. We find no merit to this contention since police during the execution of a search warrant may properly detain persons found on the premises to minimize the risk of harm to the officers and to prevent efforts to conceal or destroy evidence. Commonwealth v. Carr, 334 Pa.Super. 459, 483 A.2d 542 (1984). This temporary detention is not an arrest. See Commonwealth v. Lagana, 517 Pa. 371, 537 A.2d 1351 (1988) (wherein our supreme court held that a temporary detention does not become an arrest when police take no action indicating an intention to take the person into custody beyond the actions necessary to conduct the detention). In the instant case, appellant was merely detained while Sergeant Perkis returned to the house and found the drugs and drug paraphernalia in the basement. She was not placed under arrest until after this discovery.

Finally, appellant argues that there was no probable cause to believe that she was connected to the drugs found in the basement. Contrary to this assertion, the record is replete with connections. First, appellant was found on the premises where there was a vast quantity of cocaine and drug paraphernalia in open view. Second, Sergeant Perkis saw appellant coming from the basement where the drugs were later found. Third, the chairs, the woman’s jacket, the knocked-over drinks and the interrupted appearance of the cocaine packaging operation gave ample reason to believe that appellant was sitting with the others packaging cocaine until the police arrived. Finally, appellant was stopped as she was attempting to flee after the officers knocked and announced. The combination of all of these factors constitutes probable case to arrest appellant in connection with the drugs found in the basement. See Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983) (wherein we held that flight with companions, plus discarding of contraband by one companion, established probable cause); Commonwealth v. Mitchell, 222 Pa.Super. 335, 295 A.2d 90 (1972) (en banc) (wherein we held that flight with companions during police investigation, plus contraband in plain sight in car from which accused fled, established probable cause). For all of the above reasons, we find that the suppression court did not err in denying appellant’s pretrial motion for suppression.

The final issue appellant raises is that there was insufficient evidence to support the verdicts of guilty. The standard by which we review a challenge to the sufficiency of the evidence is well established. The evidence must be viewed in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the jury could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). In Commonwealth v. Murdrick, 510 Pa. 305, 507 A.2d 1212 (1986), our supreme court further stated that: “When reviewing the sufficiency of the evidence, an appellate court may not substitute its judgment for the jury’s.” Id. 510 Pa. at 307-08, 507 A.2d at 1213 (quoting Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982) cert. denied 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983)). As more thoroughly discussed above, the facts of this case make it reasonable that a jury could determine that the appellant had constructive possession of the drugs and drug paraphernalia found in the basement. Constrained by our narrow scope of review, we find that the lower court did not err in denying appellant’s post-trial motions.

Judgment of sentence affirmed.

      . 18 Pa. C.S.A. § 903.

      . 35 P.S. § 780-113(a)(30).

      . Id. § 780-113(a)(32).

      . We are cognizant that a recent plurality opinion of our supreme court held that:
      [T]he trial court chose to ignore the untimely filing of the appellant’s post-trial motions and addressed the merits of her alleged errors. Since such consideration was permitted under [Pa.R.C.P. 126] and did not affect the trial court’s jurisdiction, the Superior Court erred in not reviewing the merits of the appeal.

        Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1989). We will not rely on this decision since it is a plurality. See Commonwealth v. Bracero, 325 Pa.Super. 494, 473 A.2d 176 (1984) appeal granted 512 Pa. 191, 516 A.2d 338 (1986), affirmed 515 Pa. 355, 528 A.2d 936 (1987) (wherein we held that plurality opinions do not have precedential authority).


author: BROSKY, Judge. BECK, Judge,

text:
    565 A.2d 472
    COMMONWEALTH of Pennsylvania v. Ricky Lee BURKHOLDER and Harvey L. Burkholder, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 13, 1989.
    Filed Oct. 24, 1989.

      Arthur T. McDermott, Carlisle, for appellants.
    John M. Eakin, Dist. Atty., Mechanicsburg, for the Com., appellee.
    Before BROSKY, BECK and HOFFMAN, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence following a Bench finding of guilt of violations of various provisions of the Game Law, 34 Pa.C.S. 101 et seq. Specifically, appellant, Harvey L. Burkholder, was charged with violating § 2323(a)(1), Tagging and Reporting Big Game Kills; § 2307(a), Unlawful Taking or Possession of Game or Wildlife; § 2504(a), Shooting on or Across Highways; and § 2308(a)(7), Unlawful Devices and Methods. Appellant, Ricky Lee Burkholder, was charged with violating § 2323(a), Tagging and Reporting Big Game Kills, and § 2307(a), Unlawful Taking or Possession of Game or Wildlife.

The issues raised on appeal are (1) whether the search and seizure conducted at appellant, Harvey Burkholder’s residence was in violation of Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution; (2) whether evidence seized at the scene and retained in the possession of the Game Warden for six weeks should have been suppressed; (3) whether the Commonwealth proved a charge of conspiracy against the appellants; (4) whether the trial court abused its discretion in denying a view of the scene; and (5) whether the court abused its discretion by failing to reopen the trial to hear after-discovered evidence. Because we find that the items were seized pursuant to a stale search warrant, we reverse and remand for a new trial.

The incident giving rise to the above charges occurred on December 14, 1987, in Cumberland County. Witnesses, Mr. and Mrs. Bruce Davis, while standing on the porch of their home, observed appellant, Harvey L. Burkholder, alight from his pick-up truck on a nearby roadway and fire several shots toward a number of deer. Apparently having shot one of the deer, he then re-entered the vehicle and drove in the direction of the animals.

At the same time, Mrs. Davis drove to where the pick-up truck was then parked and observed Mr. Burkholder fire two more shots at the animal, killing it.

At that time, Mr. Burkholder’s son, appellant, Ricky Lee Burkholder, who had been hunting with a third party, appeared on the scene. He assisted his father in dragging the animal to the truck and then left the scene with his father. Although Ricky Lee Burkholder later claimed to game officials that he, not his father, had shot the deer and had attached his tag to it, the trial court found from the evidence presented at trial that Ricky Lee Burkholder had not shot the deer and was aware that it was not properly tagged when removed from the scene.

After the shooting incident, Mrs. Davis reported to the Game Warden that Harvey Burkholder had illegally shot at the deer from the road. Two days after the incident, the Game Warden searched the area of the road from where Mrs. Davis said Harvey Burkholder had been shooting and found two spent .30-06 cartridges, which the Warden retained in his possession.

Approximately six weeks later, on January 30, 1988, the Game Warden, accompanied by other officers, conducted a search at the Harvey Burkholder residence. Although the warrant authorized only the seizure of “all firearms chambered for the .30-06 shell,” the officers also seized both live and spent .30-06 ammunition, in addition to firearms. The rifles and ammunition were turned over to the State Police Laboratory for analysis. At this time, the Game Warden also turned over to the State Police Laboratory the spent cartridges he had found at the scene two days after the shooting.

The State Police Laboratory report revealed that the spent cartridges found at the scene by the Game Warden two days after the shooting incident were fired from one of the rifles seized at the Harvey Burkholder residence.

Appellants were subsequently charged with various violations of the Game Law, as noted above.

Appellants were found guilty on all charges at a hearing before a District Justice and, following appeal, were again found guilty at a de novo hearing before the Court of Common Pleas of Cumberland County. Appellants' motion for an arrest of judgment or for a new trial was denied. The court sentenced appellants to pay the costs of prosecution. In addition, the court imposed fines totalling $1,100 against Harvey Burkholder and $600 against Ricky Burk-holder. This appeal followed.

The first issue to be addressed is the propriety of the search and seizure conducted at the Harvey Burkholder residence. Appellants contend, among other things, that the issuance of the warrant was constitutionally invalid because the warrant was not issued until six weeks after the shooting of the deer, resulting in the issuance of a stale warrant. Appellants support their argument by citing Commonwealth v. Jackson, 461 Pa. 632, 638, 337 A.2d 582, 585 (1975), which states:

Before a magistrate may issue a constitutionally valid search warrant he must be furnished with information sufficient to persuade a reasonable man that probable cause to conduct a search does exist. The requisite probable cause must exist at the time the warrant is issued and be based on facts which are closely related in time to the date of the issuance, for it is well-settled that stale information cannot supply the probable cause necessary for the issuance of a search warrant.

(Emphasis added). (Citations omitted).

Case law holds that if the district justice is presented with evidence of criminal activity at some prior time, it must also be established that the criminal activity continued up to the time of the request for the warrant in order to support a finding of probable cause. Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984). In the present case there was no showing that the criminal activity continued up to the time of the issuance of the warrant. The determination must be made, then, as to what constitutes staleness when no evidence of continued criminal activity is presented.

Courts have been reluctant to set a hard and fast rule as to what constitutes staleness; such a determination must be made on a case by case basis. Commonwealth v. Stamps, 493 Pa. 530, 536, 427 A.2d 141, 144 (1981). The following guidelines for deciding whether information contained in a search warrant affidavit is stale were set forth in Commonwealth v. Klimkowicz, 331 Pa.Super. 75, 479 A.2d 1086 (1984). The magistrate must consider the nature and quantity of items to be seized, the time lapse involved and the ease with which the items may be disposed. The applicable standard for determining the time limits to be placed on search warrants is one of reasonableness. 331 Pa.Super. at 81, 479 A.2d at 1089.

Klimkowicz involved a time lapse of five weeks between the commission of the crime and the execution of the warrant. There, the crime committed was burglary, and the court, considering the “hot” nature of the items and the difficulty of disposing of such items, found that it was not unreasonable for the magistrate to believe that the items described could still be found at the defendant’s home five weeks after the crime. The warrant was therefore found valid.

In the instant case, the district justice apparently assumed that the appellant would still have at his home at the date of issuance of the warrant the rifle used in the shooting of the deer six weeks earlier. However, appellant testified that he did not possess the rifle in question at the time of the incident and only acquired it two weeks later. His testimony illustrates that the possibility of a change in circumstances existed. Here, as contrasted with Klimkowicz, appellant’s rifle was not “hot,” and was therefore easily disposable. Appellant had ample time either to dispose of the weapon used to kill the deer or, as he testified, to acquire it from another party. As the court in Commonwealth v. McCants, 450 Pa. 245, 299 A.2d 283 (1973), stated:

There are times when the facts and circumstances presented to the magistrate remain unchanged long after the warrant is issued. However, once it is recognized that it is possible for the facts and circumstances to change with the passing of time, a redetermination of probable cause is constitutionally required.

The McCants court further pointed out:

A search warrant must issue, if at all, upon an existing cause. A search warrant is no general aim for ferreting out crime, but a special proceeding, based on present cause, hedged by tacit constitutional provisions, which must be speedily executed.

(Emphasis supplied). 450 Pa. at 240, 299 A.2d at 286.

We find that because of the length of time that elapsed between the shooting of the deer and the date of the warrant and the lack of proof of criminal activity, the evidence seized at the home of appellant Harvey Burkholder was the fruit of a search without a valid warrant. This evidence, therefore, should have been suppressed.

Because we are remanding for a new trial, we need not consider appellants’ second and fifth claims.

Appellants’ third claim is that the evidence was insufficient to convict Ricky Burkholder of the conspiracy provisions of 34 Pa.C.S. § 2307(a).

When reviewing a sufficiency of the evidence claim, we view the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462, alloc. gr. in 520 Pa. 602, 553 A.2d 964 (1988). We then determine if there is sufficient evidence to find every element of the crime beyond a reasonable doubt; the Commonwealth may sustain its burden of proof by wholly circumstantial evidence. Id. Circumstantial evidence may be used to establish a conspiracy. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). Among the circumstances relevant to prove conspiracy are (1) association between alleged conspirators; (2) knowledge of the commission of a crime; (3) presence at the scene; and (4) participation in the object of the conspiracy. Id. While such circumstances are insufficient standing alone, an accused may be linked to a conspiracy beyond a reasonable doubt when the circumstances are viewed in conjunction with each other and in context to their occurrence. Id.

Our review of the evidence reveals that it was sufficient to find that appellants conspired to “hunt for or take or possess, use, transport or conceal any game or wildlife unlawfully taken or not properly marked....” 34 Pa.C.S. § 2307(a). Two witnesses observed Harvey Burkholder shoot at, from a highway, and apparently hit an anterless deer. Burkholder then slit the throat of the wounded deer, in order to relieve its suffering. Ricky Burkholder, Harvey’s son, then appeared and helped his father remove the deer from the scene. Harvey Burkholder never affixed a “kill tag” to any deer, since the tag was still affixed to his hunting license the following day when confronted by a game official. Harvey Burkholder claimed that Ricky had shot and tagged (witnesses stated that the deer was never tagged by anyone) the deer, and Ricky confirmed this version of the event. Therefore, appellants’ claim is without merit.

Appellants fourth contention is that the trial court’s refusal to grant a view of the scene was highly prejudicial to the defense, as such a view would have proven that the Commonwealth’s witnesses could not have witnessed the events to which they testified.

Because the shooting incident occurred in December and the trial did not take place until July, when, due to the foliage on the trees, the countryside would bear no resemblance to its appearance in December, the trial court relied on photographs and a sketch of the scene. The photographs used at trial were taken at a time which accurately reflected the foliage as it would have appeared on the date of the incident.

Rule 1112 of the Pennsylvania Rules of Criminal Procedure provides that a trial judge may, in his discretion, order a view of the scene of the crime. Absent an abuse of discretion, the trial judge’s decision not to allow view will not be overturned. Commonwealth v. Jones, 319 Pa.Super. 570, 574, 466 A.2d 691, 693 (1983). We find that in view of the difference in landscape at the time of trial from the date of the shooting, the trial judge properly disallowed a view of the scene.

Reversed and remanded for new trial. Jurisdiction relinquished.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent from the majority’s decision to reverse appellants’ convictions for violating state game laws. Appellants’ claim that law enforcement officers obtained a search warrant on the basis of stale information has not been preserved for appellate review. The only suppression issue that appellants raised in the trial court concerned the seizure of items not covered by the search warrant. This issue was correctly addressed by the trial court in the following portion of its opinion:

The defendants contend that the search of their residence, on January 30, 1988, exceeded the scope permitted by the search warrant which had been obtained by the police. Specifically, they contend that certain items were seized which were not identified as items to be searched for in the warrant itself. The defendants do not contest the fact that the Commonwealth had probable cause for the issuance of a warrant, nor do they attack the warrant itself. During the search, game officers and other law enforcement officials were intent upon seizing .30-06 rifles, owned by the defendant, any one of which might have been used by the defendant in the game violations alleged. While at the home, the police also seized certain .30-06 ammunition with the thought of using it for test firing purposes. Having thought better of this procedure, the ammunition was returned. The weapon seized, was, however, retained by the police, test fired, and shown ultimately to be the weapon whose expended rounds were found at the scene. The fact that items, outside a warrant, are taken does not necessitate suppressing those items which are legally seized. Commonwealth v. Stewart, 343 [Pa.Super.] 514, 495 A.2d 584 (1985)....
In this case, the only items which the Commonwealth sought to admit into evidence were those which were identified in the search warrant itself. The Commonwealth did not introduce into evidence any items seized which were not identified in the warrant. We see no basis, therefore, in suppressing evidence otherwise lawfully seized.

Trial Court Op. at 3-4 (emphasis added).

On appeal, appellants have shifted gears and attacked the issuance of the warrant. I would not reach the merits of this new issue. This court cannot review a case upon a different theory from that relied upon in the trial court. Commonwealth v. Mehalic, 382 Pa.Super. 264, 284, 555 A.2d 173 (1989). “A theory of error different from that presented to the trial jurist is waived on appeal, even if both theories support the same basic allegation of error which gives rise to the claim for relief.” Commonwealth v. Gordon, 364 Pa.Super. 521, 543, 528 A.2d 631, 638 (1987). See, e.g., Commonwealth v. Harmes, 255 Pa.Super. 147, 153 n. 1, 386 A.2d 551, 553 n. 1 (1978); Commonwealth v. Waters, 248 Pa.Super. 123, 128-29, 374 A.2d 1348, 1351-52 (1977). I recognize that there may be exceptional circumstances in which a rigid and inflexible application of the waiver doctrine would be unreasonable and unfair. However, I can see no justification for reversing a judgment of sentence where, as here, the appellants rely on a theory that is substantially different from the theory presented to the trial court, the trial court was deprived of an opportunity to consider the new theory, and the only punishment imposed on the appellants was a fine.

Since appellants have waived their challenge to the search warrant, I would not reach the merits of their staleness claim. I conclude that appellants’ remaining issues are not meritorious, and I would therefore affirm the judgments of sentence.


author: JOHNSON, Judge: HOFFMAN, Judge,

text:
    565 A.2d 477
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian RUTTLE.
    Superior Court of Pennsylvania.
    Argued May 25, 1989.
    Filed Oct. 27, 1989.

      Gerard T. Rosso, Asst. Dist. Atty., Norristown, for Com., appellant.
    John P. Gregg, Norristown, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from a suppression court order ruling that evidence of Brian Ruttle’s refusal to submit to a chemical test be excluded from his criminal trial for Driving Under the Influence of Alcohol or Controlled Substance. Finding that evidence of the defendant’s refusal to submit to chemical testing is admissible in a criminal proceeding even though the defendant was not properly advised that his license would be suspended or revoked if he failed to consent to the test, we reverse the suppression order and remand.

From the evidence produced at the suppression hearing, the trial court determined that on March 20, 1988, Ruttle was found by the police at the site of a car accident. He was standing near his car and had a large head wound, slurred speech, a staggered walk and the odor of alcohol on his breath. The police took Ruttle to a hospital where his wound was treated and he was asked to submit to a blood test. Ruttle was told by the police that if he did not submit to the test there was a “possibility” that he could lose his license or that his license would be suspended for a year. Ruttle refused the test.

Ruttle was arrested and charged with violation of the following offenses: 1) Driving Under Influence of Alcohol or Controlled Substance; 2) Driving While Operating Privilege is Suspended or Revoked; 3) Reckless Driving; 4) Driving Vehicle at Safe Speed; 5) Violation Concerning Licenses; and 6) Chemical Testing to Determine Blood Alcohol Content. After a preliminary hearing, only the charges of Driving Under the Influence of Alcohol or Controlled Substance, and Driving While Operating Privilege is Suspended or Revoked were bound over for trial. Ruttle filed a pretrial omnibus motion for the suppression of evidence of his refusal to take a chemical test. After a hearing on November 17, 1988, the suppression court granted Ruttle’s motion on the ground that he was not sufficiently warned that his refusal would result in the suspension of his license.

The Commonwealth appeals the order of the suppression court, contending that evidence that the defendant refused to submit to a chemical test is properly admissible in a criminal proceeding pursuant to 75 Pa.C.S. § 1547(e). The Commonwealth argues that 75 Pa.C.S. § 1547(e), does not condition such admissibility upon the defendant’s being advised that his refusal will result in suspension of his license. Conversely, Ruttle reasons, as did the suppression court, that Commonwealth v. Hunsinger, 379 Pa.Super. 196, 549 A.2d 973 (1988) controls the outcome of this case because it is authority for the proposition that a refusal may not be defined differently under 75 Pa.C.S. § 1547(b) than it is defined under 75 Pa.C.S. § 1547(e). He argues that because 75 Pa.C.S. § 1547(b) requires that a defendant be warned that his license will be suspended prior to his refusal, and because case law establishes that the absence of a proper warning will invalidate any subsequent refusal for the purposes of civil license suspension proceedings, then pursuant to Commonwealth v. Hunsinger, the refusal must also be invalid for the purpose of introducing evidence thereof into a criminal proceeding pursuant to 75 Pa.C.S. § 1547(e). The relevant statute, 75 Pa.C.S. § 1547, provides in pertinent part:

(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.
(2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing.
(3) Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspension for other reasons.
(e) refusal admissible in evidence. — in any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge.

75 Pa.C.S. § 1547. [Emphasis added].

We have reviewed the statutory language and the relevant case law and find that Ruttle’s reliance upon Commonwealth v. Hunsinger, supra is misplaced. In Hun-singer, the defendant was suspected of driving while under the influence of alcohol and was asked to take a breathalyzer test. The defendant refused the test several times but finally assented. At his trial on a charge for driving under the influence of alcohol under 75 Pa.C.S. § 3731(a)(1), evidence of the defendant’s initial refusal to take a chemical test was admitted into evidence. On appeal, this court addressed the defendant’s contention that the term “refusal” should be defined differently for criminal proceedings than for civil proceedings. If defined differently, the defendant’s behavior would not have constituted a “refusal.” After reviewing the policy reasons behind 75 Pa.C.S. § 1547, we disagreed with the defendant and determined that the term “refusal,” which is defined in civil summary license suspension cases as anything other than unequivocal

consent, should be defined in the same manner for the purpose of introducing evidence of a refusal into a criminal proceeding pursuant to subsection 1547(e). Therefore, defendant was deemed to have refused to submit to chemical testing even though he later permitted the tests to be conducted. On this basis, we found evidence of the defendant’s refusal admissible. In Hunsinger, the defendant did not argue that he was not sufficiently warned of the consequences of failing to submit to a chemical test.

In the case before us, however, the issue is not whether Ruttle’s behavior rises to the level of a refusal, as defined in Hunsinger. Rather, Ruttle argues that he was not sufficiently warned that his license would be suspended if he refused to be tested. Thus, the issue here is whether, in the absence of a sufficient license suspension warning for the purposes of subsection 1547(b), a defendant’s refusal (a response something less than unequivocal consent) is given knowingly for the purpose of introducing evidence of that refusal in a criminal proceeding pursuant to subsection 1547(e). This is an entirely different question and one of first impression in this Commonwealth.

By adopting an identical definition for the term “refusal,” the superior court did not thereby intend to incorporate all of the statutory requirements of civil license suspension cases into criminal proceedings for Driving Under the Influence of Alcohol or a Controlled Substance. License suspension cases are civil in nature and distinct from any criminal proceedings. Sheakley v. Commonwealth, 99 Pa.Commw. 328, 332-333, 513 A.2d 551, 553 (1986). We observe that a refusal preceded by a proper warning automatically triggers suspension of one’s license in a civil summary proceeding while the same refusal when used in a criminal proceeding simply constitutes one piece of evidence. Further, the use of refusal evidence in a criminal proceeding does not affect the disposition of any related civil charges. Id.; Commonwealth v. Shinn, 368 Pa.Super. 436, 440, 534 A.2d 515, 517 (1987). While we agree with the Hunsinger court that the term “refusal” is logically defined to mean anything other than unequivocal consent in both subsections 1547(b) and (e), the base of information necessary to make a “refusal” knowing under each subsection differs. A knowing refusal is one made with an awareness of the consequences. Here, subsections 1547(b) and (e) set forth separate consequences. Thus, the information necessary to an awareness of these independent consequences would, reasonably be different for each.

By promulgating subsection 1547(b), it was the legislature’s intent that motorists be forewarned of one consequence of refusing to submit to chemical testing, license suspension. Peppelman v. Commonwealth, 44 Pa.Commw. 262, 265, 403 A.2d 1041, 1043 (1979). Our courts have held that an individual has not been forewarned of this consequence unless an officer informs the motorist that his license will be suspended if he refuses a chemical test, Commonwealth v. McCafferty, 120 Pa.Commw. 153, 547 A.2d 1303 (1988) citing Commonwealth v. Sinwell, 68 Pa. Commw. 605, 450 A.2d 235 (1982), and in the event that the motorist informs the officer that he wishes to consult with counsel, an officer then advises the motorist that he has no right to counsel before submitting to the test. Commonwealth v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989); Commonwealth v. McFadden, 522 Pa. 100, 559 A.2d 924 (1989). The motorist’s refusal will not support license suspension unless it was preceded by a sufficient warning. Peppelman v. Commonwealth, supra. Thus, subsection 1547(b) protects the motorist by reminding him of the immediate and largely irreversible consequence of refusing to submit to a chemical test.

Noticeably, the requirement that a motorist be advised that his license will be suspended or revoked if he refuses to submit to a chemical test appears only in subsection 1547(b)(2), the provision discussing the civil consequences of not submitting to a chemical test. There is no compatible provision under subsection 1547(e). Nor does, subsection 1547(b)(2) warn of the possibility that the motorist’s refusal will be admitted in a criminal proceeding, the relevant information under subsection 1547(e).

The language of the statute itself further indicates that the legislature did not intend the introduction of evidence of a refusal to be conditioned upon whether police gave a sufficient warning. Subsection 1547(e) provides for the introduction of “other testimony concerning the circumstances of the refusal” when evidence of a refusal is admitted in a criminal proceeding. Accordingly, a defendant may testify to any excuse for his failure to submit to chemical testing, including the absence of a sufficient warning. No presumptions arise from the introduction of this evidence, and testimony concerning the circumstances surrounding the refusal could sufficiently diminish any arguably prejudicial impact of such evidence. Thus, the legislature has built into subsection 1547(e) a protective mechanism suitable to this subsection’s own particular objective of permitting probative evidence to be introduced into a criminal proceeding. The trier of fact, having been provided with all the circumstances, will determine what weight should be given to the mere fact of refusal. See Commonwealth v. Hunsinger, 379 Pa.Super. at 202, 549 A.2d at 976. Unlike the markedly different summary civil proceeding, it is not until a jury or judge returns a verdict of guilt that it could be alleged that the introduction of evidence of the refusal had any impact.

We reject Ruttle’s contention that the probative value of his refusal is outweighed by the prejudice to him. The failure of a defendant to take a chemical test may indicate an effort on his part to conceal evidence of his intoxication, and it may not. The factual circumstances of a particular case may present reasons for a defendant’s refusal that may well militate in his favor. Notably, the statute does not prevent the defendant himself from introducing refusal evidence along with other testimony concerning the circumstances of refusal. Thus, it is inappropriate to conclude that evidence of a refusal in the absence of a proper warning per se, no matter what other surrounding circumstances may exist, would unduly prejudice the defendant. This is a determination properly left for the judge at trial. Accordingly, we find that 75 Pa.C.S. § 1547 does not condition the admissibility of refusal evidence upon the defendant being properly warned that his license will be suspended if he fails to submit to a chemical test.

For the foregoing reasons, the order of the suppression court is reversed and this matter is remanded.

Order reversed and remanded. Jurisdiction relinquished.

HOFFMAN, J., files a dissenting statement.

HOFFMAN, Judge,

dissenting:

I respectfully dissent. Because appellant was not properly warned of the consequences of failing to submit to chemical testing, his refusal clearly would have been insufficient to allow for the suspension of his license pursuant to 75 Pa.C.S.A. § 1547(b). The majority, nonetheless holds that the refusal is admissible as evidence of his intoxication in a criminal proceeding. In so holding, the majority draws a distinction between refusals that are sufficient for civil license suspension proceedings and refusals that are sufficient for criminal proceedings. In Commonwealth v. Hunsinger, 379 Pa.Super. 196, 549 A.2d 973 (1988), we refused to draw a distinction between refusals in civil license suspension proceedings, see 75 Pa.C.S.A. § 1547(b), and refusals in criminal proceedings, see id. § 1547(e).

In Hunsinger, appellant argued that there should be a different standard for determining what actions or words constitute a refusal depending on whether the refusal was to be used in a civil proceeding (for license suspensions) or in a criminal trial. This Court disagreed and held that there was no reason to define refusal differently in a criminal proceeding. In this case, the suppression court, relying on Hunsinger, suppressed any reference to appellant’s alleged refusal to submit to chemical testing due to the improper warning. I agree with the suppression court’s analysis. Moreover, although I recognize that there is some support in the statute for the majority’s analysis, I have serious reservations about the workability of a rule premised on such a fine and tortured reading. It seems to me that the uniform rule suggested by Hunsinger, and followed by the suppression court, is a much more practical and fair reading of the statute, as it would be easier for police to follow, and would be more likely to ensure that refusals are knowing and intelligent. Because I agree with the suppression court, that there is no reason to treat the refusals differently depending on the type of proceeding, I would affirm the order below on the basis of the court’s opinion.