author: WIEAND, Judge: FORD ELLIOTT, Judge, JOHNSON, Judge,

text:
    580 A.2d 333
    COMMONWEALTH of Pennsylvania v. Donald GAINER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1990.
    Filed Aug. 28, 1990.

      Michael L. Healey, Pittsburgh, for appellant.
    Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND, McEWEN, MONTEMURO, BECK, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   WIEAND, Judge:

Appellant’s principal contention in this appeal from an order denying P.C.H.A. relief is that trial counsel was ineffective when, after introducing evidence of an alibi defense, he failed to request the court to instruct the jury on the significance of the alibi evidence. Post-trial and appellate counsel are also alleged to be ineffective for failing to preserve for direct review the absence of such an instruction.

Donald Gainer was tried by jury and, on March 1, 1985, was found guilty of two counts of arson and one count of risking a catastrophe in connection with a fire which had destroyed the Arcade Theatre on the South Side of Pittsburgh on February 5,1984. Gainer was represented at trial by John O’Connor, Esquire, who withdrew after filing post-trial motions. The Public Defender’s Office was then appointed to represent Gainer and filed supplemental post-trial motions. The Public Defender subsequently withdrew from the case because of a potential conflict of interest, and Joseph Vogrin, Esquire, was appointed to represent appellant. He filed a second supplemental motion for post-trial relief in which he raised additional issues. After an evidentiary hearing had been held on post-trial motions, relief was denied, and Gainer was sentenced to serve an aggregate term of imprisonment of not less than twenty (20) years nor more than forty (40) years. The Superior Court, on direct appeal, affirmed the judgment of sentence. On April 6, 1987, Gainer filed a pro se P.C.H.A. petition, and Dennis I. Turner, Esquire, was appointed to represent him. Subsequently, Gainer retained the services of Michael J. Healey, Esquire, who currently appears as counsel for the defendant. An evidentiary hearing was held on October 27, 1988, after which the P.C.H.A. court issued an order denying post conviction relief. It is from the order denying post conviction relief that the instant appeal has been filed.

In Commonwealth v. House, 371 Pa.Super. 23, 537 A.2d 361 (1988), the Court said:

Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), allo, denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 158-160, 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Id., 371 Pa.Superior Ct. at 28, 537 A.2d at 363. See: Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); Commonwealth v. Riggins, 374 Pa.Super. 243, 248-249, 542 A.2d 1004, 1007 (1988). Establishing prejudice “requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Moreover,

“[bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis [designed] to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). See also: Commonwealth v. Akers, 392 Pa.Super. 170, 190, 572 A.2d 746, 755-756 (1990); Commonwealth v. Harner, 377 Pa.Super. 229, 243-244, 546 A.2d 1241, 1247-1248 (1988).

Instantly, both appellant and his girlfriend, Sandra Christensen, testified at trial that appellant had been at Christensen’s home at the time when the fire occurred. According to their testimony, appellant had picked Christensen up at work at or about 9:00 p.m., and the two had gone out until 1:00 a.m., when they returned to Christensen’s home. A babysitter, Ann Ryderewski, confirmed that appellant and Christensen had returned to Christensen’s home about 1:00 a.m., but Ryderewski said she had fallen asleep shortly thereafter and could not say whether appellant and Christensen were still in the house when the fire occurred at or about 2:30 a.m.

A review of the record makes it abundantly clear that the alibi testimony was a major part of appellant’s defense. It was presented to the jury during trial and emphasized during counsel’s closing argument. Despite appellant’s reliance on the defense of alibi, the trial court did not instruct the jury regarding the significance or effect of the alibi evidence. Indeed, the subject of alibi was not mentioned during the court’s charge to the jury. Trial counsel, moreover, did nothing to request such an instruction or object to the absence thereof. The failures of court and counsel were not raised in post-triál motions and, of course, were not argued on direct appeal. They were raised for the first time in appellant’s pro se brief in support of his P.C.H.A. petition, and were argued at the evidentiary hearing held on October 27, 1988.

Because appellant contends that all prior counsel were ineffective for failing to assert the absence of an alibi instruction this issue has been properly raised. It was raised at the first opportunity at which appellant was no longer represented by those lawyers whose effectiveness was being challenged. See: Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 646 (1982); Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978).

“Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963). In Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), the Supreme Court said:

The Commonwealth has the burden of proving every essential element necessary for conviction. If the defendant traverses one of those essential elements by evidence of alibi, his evidence will be considered by the jury along with all the other evidence. It may, either standing alone or together with other evidence, be sufficient to leave in the minds of the jury a reasonable doubt which, without it, might not otherwise exist. It will be the duty of the trial judge to carefully instruct the jury as to the relationship of the evidence of the prosecution and the evidence of the defendant as each bears upon the essential elements of the crime charged. This must be done without unfair disparagement although the trial judge must be left free to comment upon the evidence, as he has done heretofore, so long as he leaves the jury free to find its own true verdict.

Id., 396 Pa. at 231-232, 151 A.2d at 446. Subsequently, in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), the Supreme Court held that when a defendant introduces evidence of alibi he is entitled to have the jury instructed that it should return a verdict of acquittal if the defendant’s alibi evidence, “even if not wholly believed, raise[s] a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt.” Id., 490 Pa. at 633, 417 A.2d at 603 (footnote omitted). “Where an alibi defense is presented, such an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt.” Id., 490 Pa. at 633-634, 417 A.2d at 603 (footnote omitted). The Pounds rationale was reaffirmed by the Supreme Court in Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989).

The Commonwealth attempts to distinguish these Supreme Court decisions because they involved refusals by trial courts to give an alibi instruction and did not hold that trial counsel was ineffective for failing to request such an instruction. This is a distinction without a difference. In either event, the jury was not adequately instructed. The issue of the ineffectiveness of counsel for failing to request an alibi instruction was addressed by the Superior Court in Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985), where, after reciting the holdings of Bonomo and Pounds, the Court concluded:

In the case sub judice, appellant’s only witness had been an alibi witness. A correct jury instruction, therefore, was vital. Appellant’s counsel, however, did not request such an instruction; and when the court gave none, counsel failed to object.
In the face of this obvious dereliction, appellant’s counsel testified at the P.C.H.A. hearing that he didn’t request a specific alibi instruction because he didn’t believe the alibi witness. Neither he nbr the Commonwealth has been able to explain how the failure to request an alibi instruction after the alibi witness had testified could reasonably be calculated to serve the best interests of counsel’s client. The witness had testified; the alibi evidence was before the jury; and appellant was entitled to a specific instruction from the court regarding its significance. When the trial court failed to deliver the required instruction, counsel had a duty to request it to do so and, if the request was denied, to preserve the court’s error by an appropriate objection. To fail in this respect was so unreasonable that it must be equated with constitutionally ineffective assistance.

Id., 341 Pa.Superior Ct. at 70, 491 A.2d at 153. The same conclusion was reached in subsequent Superior Court decisions. See: Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985); and Commonwealth v. Roxberry, 381 Pa.Super. 314, 553 A.2d 986 (1988), allocatur granted, 523 Pa. 649, 567 A.2d 652 (1989).

The decided cases, therefore, are clear. Where alibi evidence has been introduced and where, as here, defense counsel has argued an alibi defense to the jury, an alibi instruction by the court, is essential. For the trial court to fail to give such an instruction is error. For defense counsel to fail to request an alibi instruction or object to the trial court’s omission thereof renders counsel constitutionally ineffective. As the Court said in Commonwealth v. Nauman, supra,

[w]here, as here, appellant’s counsel gave notice of an alibi defense and actually introduced evidence of alibi, there can be no reasonable basis for failing to request an alibi instruction. See: Commonwealth v. Brunner, supra. See also: Commonwealth v. Hoang Khai Tran, 307 Pa.Super. 489, 453 A.2d 993 (1982). There was nothing to lose and everything to gain by having the trial court explain to the jury that even if the jury did not wholly believe the alibi testimony it should nevertheless find appellant not guilty if it had a reasonable doubt about appellant’s presence at the time of the alleged offense. The failure to request such an instruction was ineffectiveness requiring a new trial.

Id., 345 Pa.Superior Ct. at 464, 498 A.2d at 916. See also: Commonwealth v. Roxberry, supra; Commonwealth v. Brunner, supra.

The absence of an alibi instruction, it has been held, is not harmless error. Commonwealth v. Willis, supra, 520 Pa. at 294, 553 A.2d at 962. In the absence of such a necessary instruction, “conviction may have resulted from the jury’s inference of guilt from a perceived failure on the [appellant's part to clearly establish the alibi.” Id. Similarly, the dereliction of trial counsel must be deemed prejudicial. For the jury to be given evidence of alibi and not to be told of its significance, i.e., how to use it, is to impair the jury’s ability to return a reliable verdict. Because counsel’s dereliction was prejudicial, it can be corrected only by awarding appellant a new trial.

There is no merit in appellant’s remaining argument that his trial counsel was ineffective for failing to request an accomplice or corrupt source instruction with respect to the testimony of Walter Sparks, a prosecution witness. An accomplice charge is required only when the evidence permits an inference that the witness was an accomplice. Commonwealth v. Upshur, 488 Pa. 27, 32, 410 A.2d 810, 812 (1980); Commonwealth v. Smith, 343 Pa.Super. 435, 447, 495 A.2d 543, 549 (1985). See also: Commonwealth v. Sisak, 436 Pa. 262, 268, 259 A.2d 428, 431-432 (1969); Commonwealth v. Howard, 375 Pa.Super. 43, 50, 543 A.2d 1169, 1172 (1988). The justification for the instruction is that an accomplice may inculpate others out of a reasonable expectation of leniency. Commonwealth v. Upshur, supra; Commonwealth v. Thomas, 479 Pa. 34, 37, 387 A.2d 820, 822 (1978); Commonwealth v. Watts, 348 Pa.Super. 224, 228, 501 A.2d 1152, 1154 (1985); Commonwealth v. Smith, supra.

In the instant case, however, there was no evidence from which the jury could have reasonably inferred that Sparks was an accomplice of appellant in starting the fire at the Arcade Theatre. The testimony was that Sparks had declined appellant’s offer of money to assist in setting the fire. This testimony was uncontradicted. Sparks also testified that after the fire appellant had. admitted setting it. There was, therefore, no evidence that Sparks had aided appellant or had participated in any way in committing the crime for which appellant was being prosecuted. It was undoubtedly because of the absence of such evidence that appellant’s counsel sought to attack Spark’s credibility, not by showing that he was an accomplice, but by emphasizing his prior criminal record, which included convictions for burglary and theft and suggested possible motives for fabrication.

Not only was there no basis for an accomplice instruction, but such a charge would have been inconsistent with appellant’s defense that he did not set the fire but was elsewhere at the time of the conflagration. Under such circumstances, trial counsel cannot be deemed ineffective for failing to request an accomplice instruction. See: Commonwealth v. Johnson, 496 Pa. 546, 549-550, 437 A.2d 1175, 1177 (1981); Commonwealth v. Karabin, 493 Pa. 249, 252-253, 426 A.2d 91, 93 (1981); Commonwealth v. Quarles, 361 Pa.Super. 272, 279-280, 522 A.2d 579, 582 (1987).

Because of Supreme Court decisions emphasizing the need for a jury instruction explaining the defense of alibi, we hold appellant’s trial counsel constitutionally ineffective for failing to request an alibi instruction after relying upon alibi testimony to establish a defense to the charges against his client. In view of this dereliction, a new trial must be granted.

Reversed and remanded for a new trial. Jurisdiction is not retained.

FORD ELLIOTT, J., filed a concurring and dissenting statement.

JOHNSON, J., filed a dissenting opinion in which KELLY, J., joined.

FORD ELLIOTT, Judge,

concurring and dissenting:

I concur in the result reached by the majority because I too believe that trial counsel was ineffective under the facts of this case, and that a new trial is warranted. However, I join with the dissent in recognizing the inadvisability of creating a per se rule of ineffective assistance of counsel. For to do so, is to interfere in the attorney — client relationship and to intrude on counsel’s essential and at times very delicate exercise of trial strategy. Such issues should always be decided on a case by case basis.

JOHNSON, Judge,

dissenting:

I agree with the majority that trial counsel was not ineffective for failing to request an accomplice or corrupt source instruction with respect to the testimony of Walter Sparks, a. prosecution witness. However, I find no ineffectiveness meriting a new trial in counsel’s failure to request an alibi instruction. I would affirm the order denying post-conviction relief. Therefore, I must respectfully dissent.

Initially, I would agree with the distinguished trial judge, the Honorable Robert P. Horgos, that Gainer has failed to demonstrate a reasonable probability that, but for counsel’s unprofessional errors (in failing to request an alibi charge) the result of the proceeding would have been different, that is to say, that our confidence in the outcome has been undermined. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). I would have little difficulty affirming, on the analysis of the trial court, the orders of November 22, 1988 which denied PCHA relief.

The outcome of this case at first appears to be controlled by this Court’s holding in Commonwealth v. Roxberry, 381 Pa.Super. 314, 553 A.2d 986 (1988). However, as the majority acknowledges, Roxberry is subject to re-examination by our Supreme Court, Commonwealth v. Roxberry, appeal granted, 523 Pa. 649, 567 A.2d 652 (1989) (Table).

The ostensibly controlling per se rule established in Commonwealth v. Roxberry, supra, was formulated in December 1988, some three years and ten months after the trial conduct here under review. As the distinguished author of the Roxberry opinion, the Honorable Donald E. Wieand, had earlier pointed out in Commonwealth v. Johnson, 347 Pa.Super. 93, 100, 500 A.2d 173, 177 (1985):

We will not “impose upon trial counsel [or appellate counsel] the qualities of a seer ... and counsel will not be deemed ineffective for failing to predict future developments in the law.” Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977). On the contrary, we examine counsel’s stewardship under standards as they existed at the time of his actions.

Cf., Commonwealth v. Ahearn, 357 Pa.Super. 404, 406-407, 516 A.2d 45, 46 (1986), appeal denied 514 Pa. 628, 522 A.2d 556 (1987) (Table).

The per se rule compelling a trial judge to give an alibi charge regardless of the circumstances did not appear in our jurisprudence until Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985), decided one month after the trial here under review. In Brunner, Judge Wieand relied upon Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980) and Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977) for the principle that “a failure to give a specific alibi instruction, where warranted, is error requiring a new trial.” 341 Pa.Super. at 70, 491 A.2d at 153. Judge Wieand rejected trial counsel’s explana^ tion that he did not believe the witness, with this:

The witness had testified; the alibi evidence was before the jury; and appellant was entitled to a specific instruction from the court regarding its significance. When the trial court failed to deliver the required instruction, counsel had a duty to request it to do so and, if the request was denied, to preserve the court’s error by an appropriate objection. To fail in this respect was so unreasonable that it must be equated with constitutionally ineffective assistance.

341 Pa.Super. at 70, 491 A.2d at 153.

Both Pounds and Van Wright, upon which Judge Wieand relied, involved a requested alibi instruction which Had been refused. In Van Wright, the testimony of a bartender had placed the question of alibi in issue. This court reviewed Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), in deciding how the issue of alibi evidence bears upon the presumption of innocence. In Van Wright, we held that “[t]his presumption cannot be fully honored if the trial court refuses to give an alibi instruction when a defendant’s evidence, if believed, would establish its applicability.” 249 Pa.Super. at 457, 378 A.2d at 385 (emphasis added).

Similarly, in Pounds, our Supreme Court had to consider whether a retrial was in order where the trial judge had refused a request to instruct the jury on the defense of alibi. The defendant’s testimony concerning his whereabouts was not supported by any other evidence but, nevertheless, a majority of the court found it to be sufficient to raise an alibi defense. There, the court held that the failure to instruct the jury upon request constituted trial court error which was not harmless. The court reasoned that, since the defendant bears no burden of proof on alibi, such evidence, even if not wholly believed, might have raised a reasonable doubt of the defendant’s presence at the scene of the crime at the time of its commission and thus, of his guilt. As in Van Wright, Pounds involved a refusal of a request for an instruction.

From my review of the cases, I conclude that it was not until Brunner in 1985 that this court suggested that an alibi instruction might be required regardless of trial counsel’s conduct or desire. I have found no case from our Supreme Court confirming this compulsory rule.

The per se rule established first in Brunner and followed in Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985) and Roxberry, supra, would compel a trial judge to give an alibi charge regardless of the circumstances and regardless of the wishes of the defendant or defense counsel. In both Brunner and Nauman, the opinion writer concluded that there could be no reasonable basis for failing to request an alibi instruction. In Brunner, defensé counsel testified at the PCHA hearing that he did not request a specific alibi instruction because he did not believe the alibi witness. Counsel may well have feared that focusing the jury’s attention on patently false alibi evidence could have diverted the jury from considering some other plausible aspect in the case more favorable to the defendant.

If I understand the thrust of Brunner, Nauman and Roxberry, those cases conclude that there can be no reasonable basis for not wanting an alibi charge, and that this decision is too important to be left to the defendant and defense counsel. I cannot agree.

Moreover, if the per se command of Roxberry is to be followed, it would appear that the “prejudice” review found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and carried forward in this jurisdiction in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) would no longer apply, even where defense counsel finds the alibi testimony incredible, as in Brunner. I seriously doubt that our Supreme Court would sanction this.

Recently, this court has addressed the obverse of the situation presented by Brunner and its progeny. Where a criminal defendant does not testify, and specifically requests the court not to charge that he has the right not to testify and that no adverse inference may be drawn from his failure to take the witness stand, we have held that it is error for the court to give the instruction concerning a defendant’s right to remain silent. Commonwealth v. Rasheed, 392 Pa.Super. 280, 572 A.2d 1232 (1990) (en banc, Opinion by Cavanaugh, J.)

Our rationale in Rasheed was that defense counsel and his or her client should be able to decide if they want the jury to focus on the fact that the defendant has not testified. We recognized that the jury will be aware of this fact, but in some cases the defendant may not want this highlighted. Id., 392 Pa.Superior Ct. at 284, 572 A.2d at 1234-35. Similarly, in those cases involving an alibi defense, I believe that the defendant and defense counsel should not be deprived of the right to control trial strategy. In my view, the majority on this appeal moves counter to the direction of our court as manifest in Rasheed and away from the autonomy of the defendant and defense counsel without any clear enhancement of the administration of justice.

My review of the charge actually delivered persuades me that it was entirely fair. We should not lose sight of our obligation, as an intermediate appellate court, to examine the entire jury charge as a whole to determine whether it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983); Commonwealth v. Sparks, 351 Pa.Super. 320, 328, 505 A.2d 1002, 1006 (1986). I find no fault with the charge as given.

In order to join with my colleagues in directing a new trial on this appeal, I would have to conclude that, in late February, 1985, (1) defense counsel was ineffective for not requesting an alibi instruction and (2) the learned trial judge committed reversible, prejudicial error when he did not (a) anticipate this court’s quantum leaps of March, 1985 and beyond as expressed in Brunner and its progeny and (b) deliver, sua sponte, an alibi instruction that had not been requested nor, in my judgment, was required. I am not inclined towards either conclusion.

The jury in this case heard Gainer’s alibi defense through his own testimony and the testimony of other defense witnesses. It could use its common sense and decide if Gainer told the truth about his whereabouts, or if the Commonwealth witnesses were more believable — in the absence of an alibi instruction. Nothing in the transcript of the P.C.H.A. hearing or in the majority opinion of my colleagues details the manner in which our confidence in the outcome of this proceeding has been undermined because the trial court did not, sua sponte, deliver an instruction on alibi.

I cannot join with my colleagues in characterizing the conduct of Judge Horgos and Attorney John D. O’Connor as “the failures of court and counsel.” Majority opinion, page 353. Nor do I believe that our Supreme Court decisions which discuss alibi testimony and the need for jury instructions have gone so far as to find trial counsel “constitutionally ineffective” where the record discloses a failure to request an alibi instruction but nothing more to demonstrate prejudice. Commonwealth v. Pierce, supra. While I recognize the cases decided in this Court which appear to establish a per se rule, I am prepared to await further direction from our Supreme Court before I would join a position expressing such a drastic change in precedent.

On November 22, 1988, after due consideration, Judge Horgos denied the prayer of the post conviction petition. This occurred following an evidentiary hearing where no evidence was presented to support a claim that either trial or successor counsel had been constitutionally ineffective. On direct appeal, we have previously reviewed and affirmed the judgments of sentence, by per curiam order (No. 1100 Pittsburgh, 1985). I would affirm all three orders denying post conviction relief. Therefore, I respectfully dissent.

KELLY, J., joins.

      . The Post Conviction Hearing Act has now been repealed and replaced by the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.

      . O’Connor replaced Patrick Thomassey, Esquire, as defense counsel following a pre-trial hearing.

      . Gainer was represented on appeal by John Elash, Esquire.

      . It has been held, however, that a trial court need not use the precise language of Pounds, so long as the instruction given makes it clear that a defendant's failure to prove his alibi is not tantamount to guilt. See: Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989) (en banc); Commonwealth v. Bright, 361 Pa.Super. 261, 266-267, 522 A.2d 573, 575-576 (1987).


source: Caselaw Access Project

author: WIEAND, Judge: KELLY, Judge,

license: Public Domain

text:
    580 A.2d 341
    COMMONWEALTH of Pennsylvania v. John Donald ARIONDO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 18, 1989.
    Filed Aug. 31, 1990.

      Joseph G. Kanfoush, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com.
    Before CAVANAUGH, WIEAND and KELLY, JJ.
   WIEAND, Judge:

John Donald Ariondo was tried nonjury and was found guilty of possession of cocaine, a controlled substance, and possession of cocaine with intent to deliver. Post-trial motions were filed and, following argument thereon, were denied. Ariondo was sentenced to serve a term of imprisonment for not less than two (2) years nor more than ten (10) years on the conviction for possession with intent to deliver. On direct appeal from the judgment of sentence, Ariondo asserts that: (1) the trial court erred by refusing to suppress evidence seized from his home pursuant to a search warrant where, prior to obtaining the warrant, the police had illegally entered the residence without consent and had conducted a warrantless search in violation of his Fourth Amendment right to be free from unreasonable searches and seizures; and (2) the evidence presented at trial was insufficient to establish that he possessed cocaine with intent to deliver it.

In reviewing the denial of appellant’s motion to suppress the evidence seized from his home, we must

‘determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).’

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989), quoting Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Hughes, 521 Pa. 423, 438, 555 A.2d 1264, 1271-1272 (1989); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987).

When viewed in this manner, the pertinent facts in the instant case may be summarized as follows. Acting on information from a confidential informant that appellant had been receiving shipments of cocaine via United Parcel Service (UPS), detectives of the Penn Hills Police Department contacted UPS and requested that they be informed of any packages addressed to appellant. On May 5, 1988, Jesse Holman, a UPS security supervisor, notified Detectives Robert Frank and George Sens of the Penn Hills narcotics unit that a package addressed to Ariondo Electric was destined for appellant’s residence at 560 Springdale Drive, Penn Hills, Allegheny County. The package was brought to the Penn Hills police station where a trained, drug sniffing canine, by scratching and biting the package, signalled that drugs were present. With this information, police were able to obtain a search warrant authorizing them to open the package. When they did so, they found, inter alia, a plastic bag containing approximately five ounces of a white, rocky powder, which tested positive for cocaine. After this discovery, police removed the bulk of the cocaine, 126.7 grams, to be held as evidence. The remaining 12.6 grams of cocaine were placed back into the package, and the package was resealed. Detectives Frank and Sens then began preparing an affidavit for a warrant to search appellant’s residence. Inexplicably, Frank and Sens believed that they would not have sufficient probable cause to obtain a search warrant until after the package had been delivered.

Later the same evening, at or about 8:00 p.m., police established a surveillance of appellant’s house. The package was delivered by UPS security supervisor Holman and Officer Jeffrey Perz of the Penn Hills Police Department about 8:20 p.m. Appellant answered the door and accepted the package. After the delivery had been made, police waited ten to fifteen minutes until they believed the package had been opened. Because they feared that appellant would notice that the bulk of the cocaine which he expected was missing, the police decided to enter and secure the residence until a search warrant was obtained so that the evidence would not be destroyed. Thus, Detective Frank knocked on the door and identified himself as a police officer. The door was opened by Edward Ferraro, a friend of the appellant who was staying at the house. Police informed him that they were securing the residence because they had reason to believe that narcotics were present. The police then entered the house and, upon hearing noises coming from the back of the house, proceeded to the master bedroom at the rear of the one story, single family dwelling, where they found appellant. There, in plain view, they also observed the open package which had been delivered a short time before, along with various items of drug paraphernalia. After finding appellant, the police conducted a limited protective sweep of the remainder of the house to determine whether other persons were present and to ensure their own safety.

After securing the residence and determining that only appellant and Ferraro were in the house, police informed appellant and Ferraro that a search warrant would be obtained and asked for their consent to search the house. Consent was refused. Therefore, the police remained with appellant and Ferraro in the living room of the house while Detectives Frank and Sens went to the magistrate’s office to obtain a search warrant. When Frank and Sens returned, the search warrant was executed, and the evidence was seized. No evidence had been seized by police during the prior warrantless sweep of the house.

“The Fourth Amendment to the Constitution of the United States ‘protects people from unreasonable government intrusions into their legitimate expectations of privacy.’ ” Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978), quoting United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538, 546 (1977). See also: Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Commonwealth v. Williams, 380 Pa. Super. 227, 230, 551 A.2d 313, 314 (1988); Commonwealth v. Rispo, 338 Pa.Super. 225, 230, 487 A.2d 937, 939 (1985). In general, the courts have viewed a person’s residence as an area which is given the greatest protection by the Fourth Amendment. Thus, the United States Supreme Court has said:

The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their ... houses ... shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381-1382, 63 L.Ed.2d 639, 653 (1980). See also: United States v. Velasquez, 626 F.2d 314, 317 (3d Cir.1980); Commonwealth v. Conn, 377 Pa.Super. 442, 446, 547 A.2d 768, 770 (1988). “Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1220 (1977).

“As a general rule, a search or seizure without a warrant is deemed unreasonable for constitutional purposes.” Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978), citing Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971). See also: Commonwealth v. Chandler, 505 Pa. 113, 122, 477 A.2d 851, 855 (1984); Commonwealth v. Ehrsam, 355 Pa.Super. 40, 51, 512 A.2d 1199, 1204 (1986), allocatur denied, 515 Pa. 573, 527 A.2d 535 (1987), cert. denied, U.S.-, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989); Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983).

[Warrantless searches and seizures are per se unreasonable “subject only to a few specifically established and well-delineated exceptions.” E.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 98 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, [2031-32], 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, [514], 19 L.Ed.2d 576 (1967); see Commonwealth v. Shaffer, 447 Pa. 91, 103, 288 A.2d 727, 734 (1972), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); Commonwealth v. Cockfield, 431 Pa. 639, 644, 246 A.2d 381, 383 (1968). Furthermore, in this jurisdiction the burden is upon the Commonwealth to prove by a preponderance of the evidence that a search or seizure did not violate the fourth amendment.
Commonwealth v. Ravenell, 448 Pa. 162, 166, 292 A.2d 365, 367 (1972); Commonwealth v. Mazzella, 231 Pa.Super. 247, 250, 331 A.2d 784, 785 (1974); see Pa.R.Crim.P. 323(h).

Commonwealth v. Silo, 480 Pa. 15, 20-21, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979). The established exceptions to the warrant requirement were recently enumerated by the Superior Court as follows:

The warrant requirement, however, is excused where exigent circumstances exist. [Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971).] Exceptions arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons. Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978) (footnote omitted). See also: Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983). Other exceptions to the warrant requirement arise in situations where a warrantless search or seizure by police “does not amount to a significant invasion of a defendant’s reasonable expectations of privacy.” Commonwealth v. Holzer, supra. Such exceptions include consensual searches, seizure of abandoned property and plain view searches. See: Commonwealth v. Holzer, supra, 480 Pa. at 102 n. 6, 389 A.2d at 106 n. 6; Commonwealth v. Albrecht, 510 Pa. 603, 613, 511 A.2d 764, 769 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987) (consent); Commonwealth v. Pine, 370 Pa.Super. 410, 419, 536 A.2d 811, 816 (1988) (plain view); Commonwealth v. Vecchione, 327 Pa.Super. 548, 557, 476 A.2d 403, 408 (1984) (abandoned property). A warrantless search also may be made pursuant to a lawful arrest. See: Commonwealth v. Norris, 498 Pa. 308, 315, 446 A.2d 246, 249 (1982); Commonwealth v. Walker, 348 Pa.Super. 207, 217, 501 A.2d 1143, 1148 (1985).

Commonwealth v. McBride, 391 Pa.Super. 113, 119-20, 570 A.2d 539, 542 (1990).

Instantly, the trial court concluded that the police entry into appellant’s home without a warrant was justified because consent had been given thereto and also because exigent circumstances had existed which suggested a possibility that evidence would be destroyed. After a most careful review, however, we are unable to find that the trial court’s conclusions are supported by the record. Indeed, even the Commonwealth does not argue that the entry was pursuant to consent or exigent circumstances. Rather, it is the position of the Commonwealth that no violation of the Fourth Amendment occurred where, as here, police made a warrantless entry solely to secure the residence while a search warrant was being obtained.

At trial Edward Ferraro testified that he had opened the door in response to knocking by the police. Detective Frank testified at the suppression hearing and again at trial that, prior to knocking on appellant’s door, the police had already determined that a warrantless entry would be necessary to prevent a possible destruction of evidence. According to Frank, after he had identified himself as a police officer and Ferraro had responded by opening the door, Frank said to Ferraro that the police “were coming in to secure the place because we had reason to believe that there was narcotics in there.” At this point, the police entered. There is no evidence whatsoever that the police asked Ferraro’s permission to enter and search the premises or that Ferraro expressly consented to such an entry and search. On the contrary, the police believed they were operating under an exigency which required an immediate warrantless entry. The Superior Court discussed the issue of consent for a warrantless entry by police under similar circumstances in Commonwealth v. McBride, supra, saying:

‘It is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating a complaint or conducting other official business. If admission is voluntarily granted by a person who is in a position to give such effective consent, then the policeman may enter and make observations while therein consistent with the scope of the permission he was given. But the mere fact that the door of the house is opened in response to the officer’s knock or ring does not mean that the officer is entitled to walk past the person so responding into the interior of the residence. Nor may the officer enter the home when there is no response at all.’

Commonwealth v. McBride, supra at 120-21, 570 A.2d at 542-543, quoting 1 W. LaFave, Search and Seizure, § 2.3(b) at 387 (1987) (footnotes omitted). Applying this rationale to the instant case, we conclude that the record does not support the trial court’s conclusion that Ferraro consented to an entry by police into appellant’s home.

Moreover, even if Ferraro had manifested consent, there is no evidence and the trial court did not find that he was authorized to give such consent. “The Fourteenth Amendment does not preclude a warrantless search of property when consent is given by a person possessing the authority to consent to such search.” Commonwealth v. Albrecht, 510 Pa. 603, 613, 511 A.2d 764, 769 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). However, “[a] third party who has no interest nor control in a premises may not give the police valid consent to conduct a warrantless search of the premises.” Commonwealth v. Netting, 315 Pa.Super. 236, 239-240, 461 A.2d 1259, 1260 (1983). See also: Commonwealth v. Garcia, 478 Pa. 406, 423-424, 387 A.2d 46, 54-55 (1978). “[0]rdinarily a mere guest in premises may not give consent to search those premises which will be effective against the superior interest and authority of the host.” 3 W. LaFave, Search & Seizure, § 8.5(e) at 309 (footnote omitted). Instantly, the record reveals that at the time of the police entry into appellant’s house Ferraro had only known appellant for a few months and had been staying with appellant for about eight days because of family problems which he was then experiencing. Because he was a mere guest in appellant’s home, there is no basis for concluding that Ferraro had authority to consent to a warrantless police entry and search. The evidence does not disclose that express authority had been given, and the relationship was insufficient to permit authority to be inferred therefrom.

Normally, a reasonable belief by police that evidence is likely to be destroyed will give rise to exigent circumstances sufficient to justify a warrantless entry into a private residence. See: United States v. Edwards, 602 F.2d 458 (1st Cir.1979); United States v. Rubin, 474 F.2d 262 (3d Cir. 1973), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); Commonwealth v. Conn, supra. However, “[t]he exigent circumstances doctrine does not extend to law enforcement agents who ‘create their own exigencies.’ ” United States v. Cattouse, 666 F.Supp. 480, 487 (S.D.N.Y.1987), quoting United States v. Segura, 663 F.2d 411, 415 (2d Cir.1981), aff'd on other grounds, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Police may not justify a warrantless entry and search on the basis of exigent circumstances of their own making. United States v. Thompson, 700 F.2d 944, 950-951 (5th Cir.1983). See also: United States v. Socey, 846 F.2d 1439, 1448 (D.C.Cir. 1988), cert. denied, 488 U.S. 858, 109 S.Ct. 152, 102 L.Ed.2d 123 (1988); United States v. Webster, 750 F.2d 307, 327-328 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985); United States v. Rosselli, 506 F.2d 627 (7th Cir.1974). Cf. United States v. Collazo, 732 F.2d 1200, 1204 (4th Cir. 1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 777, 83 L.Ed.2d 773 (1985) (“The government will not be allowed to plead its own lack of preparation to create an exigency justifying warrantless entry.”).

Instantly, the exigent circumstances found to exist by the trial court were created by the police themselves. After discovering cocaine in the package addressed to appellant, it was the police who removed the bulk of the cocaine before delivering the package to appellant. Thereafter, it was appellant’s possible discovery that cocaine had been removed upon which the police relied to establish an exigency justifying a warrantless entry. Because this exigency was created by actions of the police themselves, their warrantless entry into appellant’s home cannot be justified under the doctrine of exigent circumstances. See: United States v. Thompson, supra; United States v. Segura, supra; United States v. Rosselli, supra.

Notwithstanding the lack of consent or exigent circumstances justifying the warrantless entry into appellant’s house, the Commonwealth argues that it was permissible for police to enter and secure the residence without a warrant while other officers were in the process of obtaining a warrant. In support thereof the Commonwealth relies upon the decision of the Superior Court in Commonwealth v. Anderson, 272 Pa.Super. 167, 414 A.2d 1060 (1979). In that case, the police had probable cause to arrest the defendant for murder and went to look for him at the home of his stepfather, with whom he resided. The stepfather gave police permission to enter the house and look for the defendant. He also led the police to the defendant’s second floor bedroom where the police lifted the mattress of the bed and found a knife. The Superior Court held that the knife had been seized in violation of the Fourth Amendment because the police sought and were given consent only to search for the defendant and not for weapons. The Court observed that a guard could have been posted at the door to the bedroom to prevent the possible removal or destruction of evidence. Id., 272 Pa.Superior Ct. at 171, 414 A.2d at 1062.

Contrary to the Commonwealth’s suggestion, Anderson does not authorize warrantless entry to secure a residence until a warrant can be obtained. Entry in that case had been made pursuant to consent given by the owner of the home. In the instant case, entry into appellant’s home was made in the mistaken belief that it was justified by exigent circumstances. As we have observed, moreover, effective consent had not been given for the police to enter. Our review, therefore, has disclosed no basis for the warrantless entry. As such, appellant’s rights under the Fourth Amendment were violated when the police entered his home without a warrant. In the absence of consent or exigent circumstances, there was no exception which permitted police to enter appellant’s home without a warrant to secure the residence.

Finding a violation of appellant’s Fourth Amendment rights, however, does not end our inquiry. It is only where unlawful police conduct has led to the discovery of evidence that suppression of such evidence is required. Where the discovery of evidence can be traced to a source independent of the initial illegality, suppression is not mandated. See: Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Melilli, 521 Pa. 405, 420-421, 555 A.2d 1254, 1262 (1989). “The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained from or as a consequence of lawless official acts, not evidence obtained from an ‘independent source.’ ” Commonwealth v. Gibbs, 387 Pa.Super. 181, 185, 563 A.2d 1244, 1246 (1989), quoting Costello v. United States, 365 U.S. 265, 280, 81 S.Ct. 534, 542, 5 L.Ed.2d 551, 561 (1961).

In Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the issue before the United States Supreme Court was the admissibility of evidence seized pursuant to a valid search warrant, where, prior to obtaining the warrant, the police had illegally entered and secured the premises. The Court held that all evidence which had not been observed during the initial illegal entry and which was discovered upon execution of the search warrant was independent of illegal police action and properly admissible as evidence. Whether evidence which had been observed following the initial entry and before execution of the warrant was properly subject to suppression was not decided. The Court of Appeals for the Second Circuit, in United States v. Segura, 663 F.2d 411 (2d Cir.1981), had held that such evidence was properly suppressed by the trial court, and the government did not appeal the ruling.

In the aftermath of Segura, several Circuit Courts were presented with similar issues and held that even where police had observed evidence after an illegal entry and such evidence had been seized during the subsequent execution of a valid search warrant, suppression was not required where the evidence would inevitably have been discovered during a subsequent, lawful search. See: United States v. Whitehorn, 829 F.2d 1225, 1230-1232 (2d Cir.1987), cert. denied, 487 U.S. 1237, 108 S.Ct. 2907, 101 L.Ed.2d 939 (1988); United States v. Whitehorn, 813 F.2d 646, 649-650 (4th Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 931 (1988); United States v. Merriweather, 777 F.2d 503, 506 (9th Cir.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1497, 89 L.Ed.2d 898 (1986); United States v. Moscatiello, 771 F.2d 589, 602-604 (1st Cir.1985), vacated on other grounds sub. nom., Carter v. United States, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986). See also: Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (defining “inevitable discovery” exception to exclusionary rule)! In applying the concept of inevitable discovery, the Fourth Circuit reasoned as follows:

The question remaining for decision is the effect of discovery of evidence as a result of the illegal bomb sweep when that same evidence is subsequently found and seized under a valid search warrant. The district court correctly ruled that on the authority of Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the evidence discovered for the first time during the search pursuant to the warrant is admissible. But what concerns us is evidence that was first discovered during the illegal search and thereafter rediscovered and seized under a valid search warrant.
Aside from Segura, the only other relevant Supreme Court ruling on the issue is Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), which held generally that unlawfully obtained evidence was nevertheless admissible if it could be established that ultimately or inevitably it would have been discovered by lawful means. Nix was concerned with evidence pertaining to the discovery and condition of a murder victim’s body which was actually discovered by interrogation of a defendant in violation of his right to counsel but with respect to which there was ample and compelling evidence to show that search parties were approaching the actual location of the body, that the search would have continued and that the body would inevitably have been found. The significance of Nix is its recognition and application of the “inevitable discovery” exception to the exclusionary rule barring the use of evidence obtained in violation of constitutional rights.
[UJnless and until the Supreme Court rules otherwise, the inevitable discovery rule may be applied even though the evidence validly obtained under a search warrant was previously uncovered in an illegal search. Stated otherwise, where it appears that evidence “inevitably would have been discovered by lawful means,” the deterrence rationale of the exclusionary rule has “so little basis” that the rule should not be applied. Nix, 467 U.S. at 444, 104 S.Ct. at 2509.

United States v. Whitehorn, supra, 813 F.2d at 649-650. In adopting this approach, the Second Circuit specifically disavowed that part of its prior decision in United States v. Segura, supra, which had held that evidence observed by police following an illegal entry was necessarily subject to suppression, notwithstanding the subsequent execution of a valid search warrant. See: United States v. Whitehorn, supra, 829 F.2d at 1231.

Four years after its decision in Segura, the Supreme Court finally addressed the issue of the admissibility of evidence which had been first observed in plain view by police following an illegal entry and which had been seized subsequently pursuant to a valid search warrant. The Court held, in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), that the Fourth Amendment does not require suppression of evidence initially discovered by police following an illegal entry into a private residence where the same evidence is rediscovered during a later search which is conducted pursuant to a valid warrant issued independently of the initial illegal entry.

Viewing the facts of the instant case in light of the above decisions of the federal courts, we are satisfied that no basis exists for suppressing the evidence seized from appellant’s home. Any evidence that was found for the first time during the execution of the search warrant was admissible pursuant to the Supreme Court’s holding in Segura v. United States, supra. As for the evidence which had first been observed in plain view following the illegal entry, it was subsequently seized pursuant to a valid search warrant issued independently of observations made during the illegal entry. This evidence would inevitably have been discovered during the subsequent search pursuant to the valid warrant. Therefore, even though appellant’s Fourth Amendment rights were violated by the initial illegal entry by police, suppression of the evidence subsequently seized pursuant to the valid search warrant was not constitutionally required. To hold otherwise would be contrary to the purpose of the exclusionary rule, for it would put the police in a worse position than they would have occupied if no violation had occurred. Murray v. United States, supra at 541, 108 S.Ct. at 2535, 101 L.Ed.2d at 483; Nix v. Williams, supra 467 U.S. at 443, 104 S.Ct. at 2509, 81 L.Ed.2d at 387.

The fact that the police included their plain view observations in the affidavit of probable cause for the search warrant does not compel a different conclusion. “In deciding whether a warrant issued in part upon information obtained through exploitation of illegal police conduct is valid, we must consider whether, absent the information obtained through the illegal activity, probable cause existed to issue the warrant.” Commonwealth v. Shaw, 476 Pa. 543, 555, 383 A.2d 496, 502 (1978). See: Commonwealth v. Gullett, 459 Pa. 431, 435-436, 329 A.2d 513, 515 (1974); Commonwealth v. Knowles, 459 Pa. 70, 80, 327 A.2d 19, 24 (1974); Commonwealth v. Riffert, 379 Pa.Super. 1, 14, 549 A.2d 566, 573 (1988). See also: United States v. Salas, 879 F.2d 530, 536-539 (9th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 507, 107 L.Ed.2d 509 (1989); United States v. Agapito, 620 F.2d 324, 338 (2d Cir.1980), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980). Instantly, when the search warrant is viewed without reference to the plain view observations which occurred after the illegal entry into appellant’s house, it is abundantly clear that the untainted information in the warrant was more than adequate to establish probable cause for the warrant’s issuance. With all reference to the plain view observations excised, the affidavit of probable cause in support of the search warrant reads as follows:

Your affiants have received information in the past from a confidential reliable informant that Jack Ariondo, 560 Springdale Dr., Pgh, PA 15235 was receiving packages through United Parcel Service that had cocaine concealed in them.
Your affiants contacted UPS and UPS confirmed that packages were being delivered to 560 Springdale Dr., Pgh, PA 15235 on a regular basis. A package watch was requested by your affiants and Jack Wood, UPS Security and stated that the packages would be held until the Penn Hills Police were notified.
On 05-05-88, Jesse Holman, UPS Security notified your affiants that UPS received a package that was destined for 560 Springdale Dr., Pgh, PA 15235.
Your affiants requested that UPS bring the package to the Penn Hills Police Dept, for examination. At approximately 1710 hours your affiants had a Penn Hills certified drug dog check the package at which time the dog alerted by scratching and biting the package, which indicates that drugs are present.
Your affiants obtained a search warrant (Warrant Control Number 03378) for the package based on the above information. The package was opened an[d] the contents were examined. Found inside of the package was a large plastic baggie containing a white lumpy substance. The white lumpy substance was field tested with positive results for the presence of cocaine. A small portion of the cocaine was repackaged and the package was resealed.
On 06-05-88 Jesse Holman and an undercover Penn Hills Police Officer delivered the resealed package to 560 Springdale Dr., Pgh, PA 15235. At 2020 hours the packaged [sic] was signed for and taken by Jack Ariondo.
Based on the above information your affiants believe that probable cause exists to obtain a search warrant for any additional cocaine and/or items used to package and distribute cocaine, which may be hidden in the residence.

We conclude, therefore, that the information gained through the initial warrantless entry did not taint the subsequent search which was conducted under authority of a valid search warrant. See: United States v. Salas, supra at 537-539. It follows that the suppression court did not err in refusing to suppress the evidence seized from appellant’s home.

To determine whether the evidence introduced at trial was sufficient to prove that appellant had the requisite intent to deliver the cocaine found in his possession, we consider “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). See also: Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988); Commonwealth v. Brady, 385 Pa.Super. 279, 282, 560 A.2d 802, 804 (1989). “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence.” Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975); Commonwealth v. Croll, 331 Pa.Super. 107, 116-117, 480 A.2d 266, 271 (1984).

“It is well established that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was possessed with the intent to deliver.” Commonwealth v. Fisher, 316 Pa. Super. 311, 322, 462 A.2d 1366, 1371 (1983). See also: Commonwealth v. Santiago, 462 Pa. 216, 223-225, 340 A.2d 440, 444 (1975); Commonwealth v. Hunt, 256 Pa.Super. 140, 149, 389 A.2d 640, 644 (1978). Expert opinion testimony is admissible concerning whether the facts surrounding the possession of controlled substances are consistent with an intent to deliver rather than with an intent to possess it for personal use. Commonwealth v. Bagley, 296 Pa.Super. 43, 50, 442 A.2d 287, 290 (1982). See also: Commonwealth v. Johnson, 358 Pa.Super. 435, 444, 517 A.2d 1311, 1316 (1986); Commonwealth v. Wallace, 265 Pa.Super. 91, 94-95, 401 A.2d 816, 817 (1979); Commonwealth v. Harris, 241 Pa.Super. 7, 359 A.2d 407 (1976); Commonwealth v. Brown, 232 Pa.Super. 463, 466, 335 A.2d 782, 784 (1975).

Under Pennsylvania law, intent to deliver may be inferred from possession of a large quantity of controlled substances. Commonwealth v. Santiago, 462 Pa. 216, 223, 340 A.2d 440, 444 (1975); Commonwealth v. Pagan, 315 Pa.Super. 7, 461 A.2d 321, 322 (1983); Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287, 289 (1982). Similarly, the absence of intent to deliver may be inferred where only a small amount of the controlled substance was discovered. Pagan, 461 A.2d at 323; Commonwealth v. Gill, 490 Pa. 1, 5, 415 A.2d 2, 4 (1980) (small amount of controlled substance consistent with personal use, not distribution).

Commonwealth v. Smagala, 383 Pa.Super. 466, 476, 557 A.2d 347, 351-352 (1989). However, “the amount [of controlled substance] involved is not necessarily crucial to establishing an inference of possession with intent to deliver, if ... other facts are present.” Commonwealth v. Harris, supra at 9 n. 3, 359 A.2d at 408 n. 3. See, e.g.: Commonwealth v. Keefer, 338 Pa.Super. 184, 190, 487 A.2d 915, 918 (1985) (although quantity and quality of methamphetamine seized from defendant was consistent with personal use, defendant’s additional possession of empty glassine baggies, scales and numerous needles used for injecting drugs, along with his recent sale of drugs to police informant, constituted sufficient evidence to establish intent to deliver); Commonwealth v. Harris, supra (evidence that defendant possessed sixteen half spoons of heroin, two measuring spoons and a scale was sufficient to support finding of intent to deliver). See also: Commonwealth v. Ramos, 392 Pa.Super. 583, 573 A.2d 1027 (1990).

Instantly, appellant argues that the seizure of only 12.6 grams of cocaine from his home was insufficient to establish an intent to deliver. This argument ignores additional facts which were present in this case. First, although only 12.6 grams of cocaine were seized from appellant’s residence, the police had earlier removed from the UPS package, which was to be delivered to his home, an additional 126.7 grams of cocaine. Secondly, along with the cocaine, police discovered in appellant’s home several items of drug paraphernalia normally associated with drug distribution, including a triple beam balance scale, a portable gram scale, four bottles of inositol powder (a cutting agent), two electronic beepers, gem-pacs and plastic baggies. Additionally, at trial, the Commonwealth presented an expert witness, Detective Raoul Rapneth of the City of Pittsburgh’s police narcotics unit, who testified as follows:

Q. Now, detective, you should be aware that — again, the evidence in this case indicates a — in one room — it has been identified as a master bedroom, the finding of the nearly half ounce of cocaine, the finding of both scales, the beepers, the platic [sic] bags on a dresser. In fact, here are some pictures, Commonwealth’s Exhibit 4. I’ll show you the large scale on the dresser, some other items. Again, plastic bags found in the room, one of the bottles of Inositol shown here, and also Commonwealth Exhibit 4 is a photograph of Commonwealth Exhibit 1, the contents of the box.

Now, these things were all found in the master bedroom. You should also be aware that inside this box was this additional quantity of cocaine that was retained by the police. The box was then delivered and found open in the bedroom with all these other items — or virtually all these other items. Being aware of that, being aware of the purity of the cocaine, the packaging — or the materials and everything else, do you have an opinion as to whether the cocaine in this case was possessed with the intent to deliver or whether it was possessed for personal use?

A. Let me take one step — is it my understanding that the small portion of the drug was found in that bedroom also?
Q. Yes, in that bedroom, the approximately half an ounce.
A. Okay, based on everything that happened and the total of it all, in my opinion, the persons that were in possession of this and took possession of it and then opened it, as you have indicated to me, would definitely receive this and have it for distribution and not for personal use.
Q. Okay, and that is your opinion?
A. Yes.
THE COURT: You mean not for personal use only?
THE WITNESS: That’s correct.
MR. NESCOTT: Yes.
THE WITNESS: The total of everything given would indicate, in my opinion, unequivocally that it was for distribution and not personal use.
BY MR. NESCOTT:
Q. Not personal use purely. You certainly can’t rule out that some of it would be intended to be used for personal use.
A. That would be very common. As I indicated earlier, that someone who chose to deal this would also, very probably, use some of it; but in the quantities you’ve shown me and the packaging materials, the beepers, the scales, et cetera, there’s no doubt in my mind whatsoever that this was for possession with intent to deliver.

Although appellant testified at trial that he was a heavy drug user and intended the cocaine for personal use, the credibility of his explanation was for the trial court, as trier of the facts. The court could, as it did, discount appellant’s self-serving testimony. Other evidence amply, if not overwhelmingly, supported the trial court’s finding that appellant had possessed the cocaine with intent to deliver some or all of it. Appellant’s challenge to the sufficiency of the evidence, therefore, must fail.

The judgment of sentence is affirmed.

KELLY, J., filed a concurring statement.

CAVANAUGH, J., concurs in the result.

KELLY, Judge,

concurring:

I agree that the fruits of the contested search were admissible under Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). I write separately only to note that the entire problem of the false exigency, such as that in this case, may be avoided by the simple expedient of applying for an anticipatory search warrant. See Commonwealth v. Reviera, 387 Pa.Super. 196,199-208, 563 A.2d 1252, 1253-57 (1989).

      . No further penalty was imposed on the conviction for simple possession.

      . Ferraro was tried with appellant, but, prior to the conclusion of trial, the charges against him were nol prossed upon motion of the Commonwealth.

      . The trial court also did not find and there is no evidence to support a finding that the police reasonably believed that Ferraro had authority to consent to a police search of the premises. See: Illinois v. Rodriguez, — U.S. -, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

      . The penultimate paragraph in the affidavit of probable cause in support of the search warrant was as follows:
      On 05-05-88 at 2030 hours, your affiants secured the residence for the purpose of obtaining a search warrant for the residence. While securing the residence and detaining the occupants your affiants observed paraphernalia, packaging items, syringes and the opened cardboard shipping box that was delivered by an undercover Penn Hills Police Officer. All of the items mentioned above were in plain view.


author: HESTER, Judge:

text:
    580 A.2d 352
    COMMONWEALTH of Pennsylvania v. Kendall PITTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 25, 1990.
    Filed Aug. 30, 1990.

      H. David Rothman, Pittsburgh, for appellant.
    Claire C. Capristo and Maria V. Copetas, Asst. Dist. Attys., Pittsburgh, for Com.
    Before CIRILLO, President Judge, and POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the February 15, 1990 order denying appellant relief without a hearing under the Post-Conviction Relief Act. Since we conclude there there is no dispute that the issues raised in this appeal are not cognizable under the PCRA, we affirm.

Resolution of the issues raised in this appeal requires a comprehensive review of the evidence introduced at the trial of appellant, Kendall Pitts. Appellant was convicted by a jury on June 5, 1987, of carrying an unlicensed gun and of first degree murder in connection with the shooting death of nineteen-year-old Derrick Mahaffey on June 22, 1986, in a public housing development in Pittsburgh known as the Garfield Projects. Appellant shot Derrick from the automobile that appellant was driving. Five eyewitnesses testified at trial, including the two passengers in appellant’s car.

Sylvia Johnson, one eyewitness to the shooting, testified as follows. She lives across from the apartment of the victim’s grandmother and was the victim’s best friend. She had dinner with Derrick and his grandmother on the evening of June 22, 1986. After dinner, she, the victim, Sylvia’s sister, and Sylvia’s niece went outside to sit on lawn chairs and talk. Approximately five minutes later, she noticed an automobile drive past and then back up. The car was a small, blue station wagon, and one of the occupants whom Sylvia could not see asked Derrick his name and accused him of “making faces” at him. Notes of Testimony, 6/2-5/87, at 47. The victim denied that he had made faces and stood up from his chair. Sylvia said that Derrick was shot immediately. She heard three shots, in quick succession. Sylvia panicked, grabbed her young niece, and ran.

Sylvia was firm that she heard three shots and that all three were fired immediately after the victim stood up. Although she ran as soon as she heard the first shot, Sylvia soon turned to look at the victim. She saw the victim walk toward the car, lean on it, and then place his hands inside the driver’s window. The car drove away slowly. Sylvia stated that no further shots were fired either while the victim was approaching the car or while he was at the car. After Sylvia saw the car drive away, she returned to the victim, who collapsed in her arms.

Sharee Johnson, Sylvia’s sister, was thirteen when the shooting occurred. At trial, she acknowledged that she was more concerned with her own well-being than observing the events of the shooting and that she ran as soon as the first shot was fired. Although she confirmed her sister’s version of events prior to the shooting, her testimony was that one shot was fired at the victim when he stood up and that two shots were fired while he was leaning against the car.

A third eyewitness, Charles Woodward, who also lived in the Garfield Projects, observed the shooting from across the street. He did not hear the verbal exchange between the victim and the driver of the car, but he did not flee or turn his head when the shots were fired. He testified that three shots were fired in rapid succession as soon as the victim stood up from his chair. He stated that the victim did not lean against the light blue station wagon, which had driven away, but instead, leaned against a car parked along the street. Woodward’s unshaken testimony was that Derrick was shot three times immediately after he stood up and before he started to walk toward the car. Woodward did not see the occupants of the blue station wagon, which drove away after the shooting.

Derrick Webb testified as follows. He was one of the two passengers in the car and is on friendly terms with both the other passenger, Todd Blackman, and appellant. Webb was sitting next to appellant and observed him shoot Derrick. Webb also was with appellant during the evening hours prior to the shooting when he and appellant had been driving around and drinking a moderate amount of beer. They picked up Blackman later in the evening, just prior to the shooting. Webb noted that appellant did not mention the victim’s name or indicate that he was angry with anyone at any point during the evening.

When the three men started driving through the Garfield Projects, they drove past the victim and his friends. Webb heard someone “scream out,” and appellant backed up his car, stopping in front of the victim. Id. at 162. Webb said that appellant then asked the victim, “What’s Up?” several times. Id. The victim stood up and started to walk toward the car, and appellant shot him three times. The victim kept walking toward the car, which drove away. Webb testified that the victim never had his hands inside appellant’s car. When asked by the Commonwealth whether there was a motive for the shooting, Webb responded that he observed absolutely no reason for appellant to shoot Derrick. Id. at 171.

Todd Blackman also testified for the Commonwealth. He is appellant’s first cousin and was raised as his brother. Blackman also knew the victim and Sylvia Johnson. Black-man confirmed that he, appellant, and Webb were driving through the Garfield Projects and drove past Derrick. He also heard the gun fired three times which he described as occurring when Derrick was “coming toward the car.” Id. at 230.

Aletta Curry was appellant’s girlfriend, and she testified that approximately two weeks after the shooting, appellant told her that he shot Derrick because the “guy was talking stuff on him; and he didn’t like what he was saying, so he shot him____” Id. at 263.

Both Sylvia Johnson and Derrick Webb testified that there was no weapon in Derrick Mahaffey’s hands at any point during the exchange between appellant and Mahaffey. It also was established at trial that appellant was not licensed to carry a gun at the time of the shooting and that he owned a light blue station wagon. Derrick died of one gunshot wound which penetrated his heart.

We summarize the evidence as follows. All of the eyewitnesses agreed that the first shot was fired as soon as the victim stood up and started to walk toward the car, which had backed up to come parallel to the victim. Four witnesses, including appellant’s cousin, said all three were fired as soon as the victim stood up. Only the young witness, who admittedly was not paying attention, said that the other two shots were fired when the victim was leaning against a car. There was a conflict about which car the victim leaned against, but the two witnesses who did not turn away agreed that it was not appellant’s car. The victim was unarmed, and the motive, established by appellant’s own admission as well as eyewitness testimony, was that the victim called appellant names. The fact that appellant pulled the trigger is established by Webb and by appellant’s statements to his girlfriend. Although appellant’s cousin did not say that appellant pulled the trigger, the cousin admitted all of the other relevant facts and did not state that either Webb or he shot the gun. Succinctly, the evidence offered by five eyewitnesses, including appellant’s cousin, refutes any inference that the appellant acted in self-defense.

The .jury returned a verdict of guilty of first degree murder. Appellant was sentenced to life imprisonment on August 28, 1987. He filed a direct appeal, alleging that trial counsel was ineffective for failing to impeach Webb with a prior conviction and for failing to object to the trial court’s instructions. Appellant was represented by privately-retained counsel during trial and by the public defender’s officer during his direct appeal. On appeal, we remanded for a determination as to whether Webb was impeachable as alleged and rejected appellant’s allegation that jury instructions were improper. Following a hearing, the trial court determined that Webb was not impeachable with the prior conviction since the conviction was not for a crime involving crimen falsi.

On May 5, 1989, appellant filed a petition for relief under the PCRA, which was denied without a hearing. This appeal followed. Appellant contends that he is entitled to a hearing on his PCRA petition which contains allegations that trial counsel was ineffective for failing 1) to call him to testify on his own behalf since he was the only witness who could have established that the victim was the aggressor in the episode; 2) to investigate and present the defense of voluntary intoxication and drug ingestion to negate the specific intent to kill; and 3) seek a severance with respect to the charge of carrying an unlicensed weapon.

This is appellant’s first PCRA petition, and he strenuously argues that prior appellate counsel was ineffective for failing to raise these issues during direct appeal and that the decision not to pursue the issues was not a tactical decision. We therefore conclude that the issues are not waived. See Commonwealth v. Hanes, 397 Pa.Super. 38, 579 A.2d 920 (1990); Commonwealth v. Ryan, 394 Pa.Super. 373, 575 A.2d 949 (1990); Commonwealth v. Velasquez, 387 Pa.Super. 238, 563 A.2d 1273 (1989). See also Commonwealth v. Weinder, 395 Pa.Super. 608, 613 n. 2, 577 A.2d 1364, 1367 n. 2 (1990). However, we also conclude that the issues are not cognizable under the PCRA as a matter of law. Ineffective assistance of counsel is cognizable under the PCRA only where it undermined the truth-determining process so that no reliable adjudication of guilt could have taken place. 42 Pa.C.S. § 9543(a)(2)(H); Commonwealth v. Thomas, 396 Pa.Super. 92, 578 A.2d 422 (1990).

As to counsel’s failure to seek severance, this allegation is not cognizable as stated. This follows because severance of two charges to which the defendant obviously is guilty where both charges stem from the same criminal incident does not implicate the reliability of the truth-determining process. Accordingly, this allegation is not cognizable on its face.

Turning to the other two allegations of trial counsel’s ineffectiveness, we conclude that under the facts, the allegations of ineffectiveness raised in this appeal did not undermine reliability of the truth-determining process as a matter of law. Appellant’s guilt of first degree murder is established conclusively by the record, which demonstrates the falsehood of the two issues allegedly foregone by counsel.

As to appellant’s claim that he would have testified that the victim was the aggressor, we note the following. There were five eyewitnesses to this crime, and no one’s testimony contains a scintilla of support for the position that the victim was the aggressor. Appellant himself admitted his motive for shooting the young man was that he called appellant a name, which motive was confirmed by Webb and Sylvia Johnson. In addition, all eyewitness testimony agreed as to two key facts: appellant had to back up his car to come parallel with the victim and the first shot was fired before the unarmed victim stepped toward the car in which appellant easily could have driven away in order to avoid any conflict.

Since the record establishes conclusively that the victim was not the aggressor, trial counsel’s alleged ineffectiveness in failing to allow appellant to testify to the contrary did not undermine the reliability of the truth-determining process at appellant’s trial. This follows because such testimony would have been a fabrication. See Commonwealth v. Perdue, 387 Pa.Super. 473, 564 A.2d 489 (1989) (improper cross-examination did not undermine truth-determining process); Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (while some pretrial identification procedures may undermine truth-determining process, procedure at issue did not). Compare Commonwealth v. Thomas, supra (trial counsel was ineffective for failing to preserve objection to patently inadmissible hearsay and this implicated reliability of truth-determining process in that hearsay is inherently unreliable and hearsay at issue was a key piece of evidence establishing defendant’s guilt); Commonwealth v. Weinder, supra (where alibi evidence was strong and where alibi instructions were incorrect, reliability of truth-determining process was implicated by improper instructions).

The record also establishes that appellant did not have a defense of voluntary intoxication. He confessed to his girlfriend that he shot the victim because the victim called him a name (not because he was intoxicated and did not mean to shoot him). Further, Derrick Webb was with appellant the entire evening prior to the shooting and testified about the level of appellant’s consumption of alcohol. It was not sufficient to negate specific intent to kill.

In conclusion, the PCRA does not provide relief on the basis of allegations that trial counsel was ineffective for failing to present defenses which the record establishes are false. Appellant does not level an attack on the reliability of the evidence presented against him or the fairness of his trial. Instead, he contends that trial counsel should have taken actions which are offensive to the truth-determining process. Since the purpose of the PCRA is to prevent a fundamentally unfair conviction, Commonwealth v. Weinder, supra; Commonwealth v. Velasquez, supra, and since appellant’s allegations do not raise the inference that his conviction is unfair, we conclude that appellant’s allegations are not cognizable. In the present case, there are no genuine issues of material fact that appellant is not entitled to relief under the PCRA. Accordingly, we conclude that the PCRA court correctly dismissed the petition without a hearing. See Pa.R.Crim.P. 1507(a), Commonwealth v. Ryan, supra.

Order affirmed.


author: DEL SOLE, Judge:

text:
    580 A.2d 357
    E. Kay HESS, Appellee, v. James G. HESS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1990.
    Filed Sept. 10, 1990.
    Reargument Denied Oct. 19, 1990.

      William J. Gallagher, Kennett Square, for appellant.
    David E. Auerbach, Media, for appellee.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   DEL SOLE, Judge:

Husband and Wife entered into a property settlement agreement as part of their divorce action. The agreement distributed several parcels of land. One of those parcels of land was known as the “Bypass Garage.” The other parcel was at the rear of the Bypass Garage and was referred to as the “Rear Garage.” In the property settlement agreement the Bypass Garage was valued at $25,000.00. The Rear Garage was owned by Husband and his mother. Husband’s share in the Rear Garage was valued at $20,-000.00.

At the time of the execution of the property settlement agreement, without Wife’s knowledge, Husband was negotiating to sell both the Bypass Garage and the Rear Garage to prospective buyers for $800,000.00. The property settlement agreement was. signed on July 21, 1983. Option agreements were signed by Husband and the buyers on September 14, 1983. The agreement of sale was signed on November 7, 1984 after the buyers received zoning approval. In the property settlement agreement both Wife and Husband agreed to make a full, complete and accurate disclosure of all assets. Wife brought this action alleging both fraud and breach of contract. The jury returned a general verdict of $200,000.00 in compensatory damages and $40,000.00 in punitive damages without stating on which theory it was allowing recovery.

The first issue raised by Husband is whether the trial court erred when it overruled Husband’s preliminary objections and failed to direct a verdict in Husband’s favor on the issue of punitive damages. Husband argues that Wife’s lawsuit against him was based on a contract theory and punitive damages may not be awarded in a breach of contract suit. The trial judge instructed the jury that if it simply found a breach of contract then it should only award compensatory damages. If it found that fraud had been committed then it could award both compensatory damages and punitive damages. The trial judge stated that it would be possible for the jury to find in favor of Wife on either count; we agree.

While it is true that punitive damages are not awarded in breach of contract cases, this rule does not restrict a party from bringing alternative claims in tort and contract where warranted by the facts. Here, the husband’s actions in failing to disclose the ongoing negotiations involving certain properties give rise to two separate causes of action. The first is based on the property settlement agreement and the husband’s breach of the warranty of full disclosure. Such an action would result in compensatory damages. The second cause of action is in tort based upon the alleged fraud committed in negotiating the property settlement agreement. Under this theory, the defendant would be liable for both compensatory and punitive damages. The trial court properly charged on both theories; and, from the jury’s verdict, it is obvious that the plaintiff sustained her burden of proof in establishing the fraud committed by the defendant.

Our review of the record convinces us that the evidence was sufficient to warrant this finding.

We know that in order to impose punitive damages, the wrongful conduct must be outrageous. Conduct is outrageous when it is “malicious, wanton, reckless, willful or oppressive.” Rizzo v. Haines, 520 Pa. 484, 506, 555 A.2d 58, 69 (1989). Such conduct must show the actor’s evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Husband’s conduct falls into this category. He signed a contract with his wife that stated that he was fully disclosing the value of all of the assets in the marital estate. At the same time he was negotiating to sell two of the assets for 200% more than the value he was disclosing to Wife. This type of outrageous conduct can only be punished and deterred by punitive damages.

The second and third issues raised by Husband argue that there was insufficient evidence to support either the fraud count or the breach of contract count. The elements of fraud are (1) a misrepresentation, (2) a fraudulent utterance, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result. Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 464 A.2d 1243 (1983). At trial, evidence was produced that Husband signed the agreement which stated that the properties were w;orth a total of $45,000.00 when at the same time he was negotiating to sell them for $800,000.00. Husband’s failure to give the true value of the properties caused Wife to sign the agreement that gave an undervalued worth of the properties. The result of Husband’s actions was Wife lost her share of the $800,000.00 that Husband received for the properties. We hold that there was sufficient evidence for the jury to find that Husband had committed fraud.

Husband also argues that he did not breach the contract created by the property settlement agreement because it did not require the parties to. disclose the “exact amount” of the value of the parties’ property. Contrary to this argument, both Husband and Wife agreed, by signing the document, that they would give a full and complete disclosure of “all assets of any nature and of all other facts relating to the subject matter of this agreement.” They also warranted that the lists of assets and liabilities they gave were accurately set forth.

It is unconscionable that Husband could now argue to us that these parts of the agreement did not require him to disclose to Wife that the true value of the properties was twenty times more than what was in the agreement. The disclosure of the “exact amount” of the value of assets may not be required. Nigro v. Nigro, 371 Pa.Super. 625, 538 A.2d 910 (1988). Fair and full disclosure, however, requires that a reasonable estimate of the worth of the assets must be attempted so that the general financial resources of the parties are not obscured. Nigro, supra. Because Husband did not even attempt to fully disclose the value of these properties, he breached the contract. We hold that there was sufficient evidence for the jury to come to this conclusion as well.

The fourth issue raised by Husband is that the jury verdict was excessive. Husband argues that the compensatory damages should have been nominal and that Wife’s attorney, in his closing argument, miscalculated the tax consequences to Husband. We first note that a jury does not have to determine damages with mathematical precision, but only with a reasonable degree of certainty. Standard Pipeline Co. v. Solomon and Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985).

Wife presented evidence that the total amount received by Husband for his interest in the properties which was not disclosed to her was $567,562.00. After subtracting expenses, such as the mortgage and taxes, the net amount received by Husband was $401,576.00. The jury awarded Wife $200,000.00 in compensatory damages or approximately one-half of the net amount received by Husband. We hold that there was no error in this computation. Because Wife presented evidence of actual damages there was no reason for the jury to award her only nominal damages.

In his closing argument, Wife’s attorney stated that the tax consequences to Husband were around $80,000.00. Husband testified that his tax consequences of the sale of the property was approximately $87,488.00. This was a determination of fact to be made by the jury and they could reject or accept Husband’s testimony. There was no error committed if they chose to reject it.

The fifth issue raised by Husband is that the trial court erred by allowing into evidence testimony about Husband’s alleged marital misconduct. Wife’s attorney stated at closing argument that “the wife of eighteen years was not going to get a piece of the big pie, somebody else was.” (Notes of Testimony, 1/26/89, p. 116). The trial court dealt with this issue as follows:

Regarding this particular remark, the record shows that (Wife’s) counsel asked Wife question relative to the separation that led to the agreement. She testified, without objection, that (Husband) had told her that he was involved with another woman and that her name was Rose Raven. (N.T. 1/25/89, pp. 33-34). (Wife’s) counsel then asked who moved in with (Husband) when he moved in August of 1983. (Husband’s) counsel objected and that objection was overruled. Wife testified that (Husband) moved in with his girlfriend, Rose. (N.T. 1/24/89, pp. 51-53).
It is clear that the evidence of when the parties had separated and the timing of the separation was background information that was relevant and material for the jury to understand the circumstances of the separation. In addition, it is also clear that (Wife) was attempting to show, by the timing of (Husband’s) moving in with Rose Raven, that (Husband) had an intent to deceive and defraud (Wife). If (Husband) was trying to preserve the money for his new girlfriend and the woman he eventually married, it is clear that this was relevant evidence for the jury to consider in determining whether fraud existed.

(Trial Court opinion at p. 17). Because the trial court’s reasoning is convincing on this issue, we adopt it as our own and hold that the trial court did not err by allowing such testimony.

The sixth issue raised by Husband is that the trial court erred when it allowed Wife’s counsel to say in his closing argument that Husband’s attorney in the land deal was not going to give Wife any records. The attorney did not give Wife any records until he was subpoenaed. Husband objected on the grounds that this statement that the attorney was not going to give Wife any records was outside the scope of the counsel’s argument. The trial court disagreed and so do we. Neither Husband nor the attorney came forward with any records during the property settlement agreement negotiations nor during the sales negotiations. Given the amount of concealment of information that occurred while the sales agreement was being negotiated, we cannot say that the trial court erred by allowing this statement to be made by Wife’s counsel.

Husband’s final issue is that the trial court erred by rejecting three of the points of charge that he presented to the court. This issue is meritless. A careful review of the trial court’s twenty-one page charge to the jury shows that the trial judge went over both causes of action and how damages should be calculated for each. There was no error committed by the trial court with these instructions and the additional instruction requested by Husband would have been merely repetitive.

Judgment affirmed.