author: TAMILIA, Judge:

text:
    567 A.2d 1052
    COMMONWEALTH of Pennsylvania v. John McCahan PARKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed Nov. 29, 1989.
    Reargument Denied Jan. 16, 1990.

      Wendell V. Courtney, State College, for appellant.
    Robert F. Hawk, Asst. Dist. Atty., Butler, for the Com., appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the December 8, 1988 judgment of sentence imposed pursuant to the trial court’s determination appellant was guilty of driving a vehicle in excess of 35 miles per hour in an urban district, in violation of 75 Pa.C.S. § 3362(a)(1) Maximum speed limits. The trial court sentenced appellant to pay the costs of prosecution and a $59 fine.

The sole issue on appeal is whether the evidence was sufficient to support appellant’s conviction. Appellant contends the evidence was insufficient because the Commonwealth failed to offer evidence the situs of the offense was an urban district so as to invoke 75 Pa.C.S. § 3362(a)(1). This Court’s scope of review in cases such as this where the trial court has heard the matter de novo is to determine whether competent evidence supports the findings of fact and to correct any erroneous conclusions of law. Commonwealth v. Cogan, 342 Pa.Super. 386, 389, 492 A.2d 1388, 1389 (1985). Applying this standard, a thorough review of the evidence presented, along with relevant statutory and case law, reveals the evidence was indeed sufficient.

Appellant was convicted under 75 Pa.C.S. § 3362(a)(1), which provides:

(a) General rule. — Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this subsection or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits:
(1) 35 miles per hour in any urban district.

Appellant asserts there are three elements to the offense, which the Commonwealth must prove to sustain a conviction, and they are: 1) appellant operated a vehicle; 2) at a speed in excess of 35 miles per hour; and 3) in any urban district. We do not agree.

The portion of the statute referring to any urban district is not an essential element of the offense. As the trial court found, the posting of a sign designating a 35 mile per hour zone is a function of the municipal or state authority empowered by statute to establish such zones. It is a rule of law that the acts of such officials are entitled to a prima facie finding of regularity, Bethlehem Steel Co. v. Board of Finance and Revenue, 431 Pa. 1, 244 A.2d 767 (1968), which in this case requires a finding that the sign was posted in an urban district as defined in 75 Pa.C.S. 102, Definitions. A rebuttable presumption is created that the situs of the offense was in an urban district or another properly zoned section. See Albert v. Lehigh Coal and Navigation Co., 431 Pa. 600, 246 A.2d 840 (1968). This presumption results from the fact Pennsylvania law establishes two basic maximum speed limits: 35 miles per hour in any urban district and 55 miles per hour in other locations. 75 Pa.C.S. § 3362(a)(1) and (2). Any other posted speed limit must be based on an engineering and traffic study or fall in special zones such as school and work zones, all of which are covered by section 3362(a)(3). 67 Pa.Code § 211.72 Speed limits in other than work areas. Hence, if the area where the offense occurred was posted as a 35 mile per hour zone, the law presumes it is an urban district because of the presumption of regularity attributed to official acts. If such were not the case, in every traffic violation situation, before a conviction could be obtained, it would first be necessary to prove that the state or municipality properly exercised its authority in posting a zone, regardless of the evidence of the guilt of the party charged. A presumption of regularity is particularly suitable in properly posting speed limits, due to the extraordinary number and variations of such postings throughout the Commonwealth. See Bethlehem Steel, supra.

As a result, the Commonwealth need not prove appellant was exceeding the 35 mile per hour maximum speed limit in an urban district, but it need only show, as it did, appellant operated a vehicle in excess of 35 miles per hour in a 35 mile per hour zone. The Commonwealth having made that showing, it was then incumbent upon appellant to rebut the presumption the offense occurred in such a district and that officials improperly zoned that stretch as an urban district. Presumptions throw upon the party against whom they work, the duty of going forward with the evidence. MacDonald v. Pennsylvania R. Co., 348 Pa. 558, 36 A.2d 492 (1944). See also, Rice v. Shuman, 513 Pa. 204, 519 A.2d 391 (1986); Lynn v. Cepurneek, 352 Pa.Super. 379, 508 A.2d 308 (1986). “A presumption of law compels the fact finder to reach a particular conclusion in the absence of evidence to the contrary____ A legal presumption may also be based upon procedural expediency or public policy.” Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 543, 526 A.2d 1192, 1196 (1987) (citations omitted). In the instant case, appellant made no attempt to rebut the presumption the offense occurred in a properly zoned urban district. As such, the trial court correctly presumed the offense occurred in an urban area and found appellant guilty under 75 Pa.C.S. § 3362(a)(1). There are thousands of urban districts with 35 mile per hour speed limits in Pennsylvania and it would be ludicrous to proceed, as appellant suggests, on the notion the Commonwealth must prove the speeding violation occurred in a properly zoned urban district in every case where a defendant is accused of exceeding the 35 mile per hour maximum speed limit. We therefore agree with the trial court.

The cases cited by appellant to refute the court’s findings are inapplicable. As we have stated, the Commonwealth does not shift the burden to the appellant to establish the elements of the crime as the only requirement on the Commonwealth is to establish that the section of the road was posted 35 miles per hour and the appellant was the driver of a vehicle who exceeded the 35 mile per hour limit, as established by competent evidence in those cases. Appellant’s reference to Commonwealth v. Anspach, 134 Pa. Super. 369, 4 A.2d 203 (1939), and its progeny are not authority for the position he has taken. In those cases the issue was notice in that this Court has held that before a person can be charged with violating a speed limit, the limit must be posted in the manner prescribed by the statute:

official signs, erected by the proper authorities, on the right-hand side of the highway facing the traffic to be controlled____ This limit shall be observed for a distance beyond said sign for not more than one-eighth (Vs) of a mile. An additional sign shall be placed at intervals not greater than one-eighth (Vs) of a mile, and any extension of such limited zone shall be marked by additional signs in like manner.

Id., 134 Pa.Superior Ct. at 370, 4 A.2d at 203. Finding those requirements were not met, the court stated:

But there is absolutely no testimony that 25 mile official speed limit signs were erected on the right-hand side of the highway facing the traffic to be controlled,____ The erection and display of the signs as prescribed are primary requisites. The speed limitation only applies to the limited zone so marked. In absence of proof that a zone was so marked, it cannot be established that appellant violated this section (1002(b) 4) of the act.

Id., 134 Pa.Superior Ct. at 372, 4 A.2d at 204.

We know of no appellate case which holds that in addition to the proper posting of a speed limit sign the Commonwealth must also prove that the officials responsible for the posting fulfilled their responsibility in designating the zone as required by statute and highway regulations.

Judgment of sentence affirmed.

      . 31A C.J.S. Evidence 146
      a. In General
      Official acts or duties are, in the absence of evidence to the contrary, presumed to have been properly performed, and, as a general rule, it is presumed that a public official discharges his duty or performs an act required by law in accordance with the law and the authority conferred upon him, and that he acts fairly, impartially and in good faith.


source: Caselaw Access Project

author: BROSKY, Judge. CAVANAUGH, Judge,

license: Public Domain

text:
    567 A.2d 1055
    COMMONWEALTH of Pennsylvania v. Kurt E. SMALLHOOVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1989.
    Filed Dec. 4, 1989.

      Ernest W. Baum, Pittsburgh, for appellant.
    Brian P. Gottlieb, Deputy Atty. Gen., Harrisburg, for Com.
    Before CAVANAUGH, BROSKY and ROWLEY, JJ.
   BROSKY, Judge.

This appeal is taken by Kurt E. Smallhoover from the judgment of sentence following his conviction of 75 Pa. C.S.A § 9510(c), willfully failing to pay the oil company franchise tax.

On appeal, he raises various constitutional and statutory challenges to the legislation empowering the imposition and collection of the oil company franchise tax and alleges sundry trial errors. We affirm.

Smallhoover is vice-president and general manager of the R. W. Geiser Company (“the Company”), a wholesale oil and gas distributorship. His mother, Mrs. Smallhoover, is the president of the company, and his father, Mr. Smallhoover, acts as Secretary-Treasurer. The tax which Smallhoover was found to have willfully failed to remit is an excise franchise tax imposed for highway maintenance and construction. The tax is imposed at the rate of sixty mills for each dollar of an oil company’s petroleum revenues for the privilege of exercising a corporate franchise, doing business, employing capital, owning or leasing property, maintaining an office or having employees in Pennsylvania. 75 Pa. C.S.A. § 9502(a).

The company was initially audited by the Commonwealth Department of Revenue in 1984 and was found to have been delinquent in its payment of the franchise tax for a seven-month period commencing January 1984 through July 1984. The field auditor attributed the company’s delinquency at that time to a general confusion surrounding the enactment of the oil company franchise tax rather than to any criminal intent to defraud. Following the audit, the taxes were regularly remitted to the Department of Revenue. Subsequently, payment once again ceased, and Smallhoover was then charged with willful failure to pay the tax for the period July 1985 through and including December 1985 in the total amount of $50,384.57. Following his conviction and from his sentence of six consecutive terms of probation (for each of the six counts of willful failure to pay), fifteen hours of community service per month and restitution in the amount of $50,384.57, Smallhoover filed this timely appeal.

Smallhoover challenges the authority of the Commonwealth to prosecute him under the penal provision of the taxing statute, 75 Pa.C.S.A. § 9510(c), because he does not meet the statutory definition of a “person” who can be charged with violating the statute. The act defines “person” as “[a]ny oil company subject to tax under this chapter.” 75 Pa.C.S.A. § 9501. The term “oil company”, in turn, encompasses a “corporation, association, joint-stock association, partnership, limited partnership, copartnership, natural individual or individuals, and any business conducted by a trustee or trustees wherein evidence of ownership is evidenced by certificate or written instrument, formed or engaged in the sale or the importation of petroleum products within this Commonwealth.” Id. In his appellate brief, Smallhoover argues, “The statute does not impose vicarious liability upon those associated with the oil company [,] nor does it contain a provision to automatically pierce the corporate entity for purposes of imposing either civil or criminal penalties upon the officers, directors or employees of the corporation.” At 18. We believe that Smallhoover’s concern about a perceived defect in the statutory definition of “person” has been squarely addressed by this court in Commonwealth v. Klinger, 369 Pa.Super. 526, 535 A.2d 1060 (1987).

In Klinger, appellant, who was the president and, with his wife, the sole owner of Fuel Marketing Corporation, sold fuels at a truck stop operated by the corporation. He collected the franchise tax but failed to remit it for a four month period. Klinger was arrested and charged with violation of 75 Pa.C.S.A. § 9510(c) and another taxing statute and was ultimately convicted. On appeal, Klinger argued that the oil company franchise tax statute does not contain any provision charging a corporate official with criminal responsibility for the acts or omissions of a corporate taxpayer. Klinger maintained that since the corporation was the oil company subject to payment of the franchise tax under the statute he, individually, could not be prosecuted for failure to pay the tax.

The panel considered and rejected this argument, relying on Commonwealth v. Shafer, 414 Pa. 613, 202 A.2d 308 (1964). There, the Supreme Court held that the president of a corporation who was charged with non-payment of sales tax collected by the corporation but not remitted in violation of Section 823 of the Penal Code of 1939 was subject to prosecution under the statute. The appellant in Shafer had argued that it was the corporation, rather than he, individually, who was criminally responsible under the statute. The Klinger court, citing Shafer, stated, “[ijndividuals are subject to indictment for acts done under the guise of a corporation where the individual personally so dominated and controlled the corporation as to immediately direct its action.” 369 Pa. at 536, 535 A.2d at 1065, citing Shafer at 624, 202 A.2d at 313. We conclude that the record in the instant matter demonstrates that Smallhoover “personally dominated and controlled the affairs of the corporate taxpayer”, id., and, like the Klinger court, we, too, reject Smallhoover’s assertion to the contrary and find him subject to criminal prosecution under the oil company franchise tax statute. See N.T. 46-49, 53-54, 70, 77, 80-83, 92, 97, 99-102, 106-07, 111-13.

In a related vein, Smallhoover alleges that because he was not charged in the information as an officer or agent of a corporation required to collect and remit the oil franchise tax, no statutory obligation can be imposed upon him, individually, for the payment of the tax under Section 9510(c). Instead, if he were responsible at all, Smallhoover continues, the controlling provision is Section 307(e) of the Crimes Code, 18 Pa.C.S.A. § 307(e), entitled “Persons acting or under a duty to act for organizations” and that the failure of the information to include the specific language of Section 307(e) in addition to the reference to Section 9510(c) deprived him of the ability to effectively defend. However, this court’s analysis in Commonwealth v. Klinger, supra, renders the above contention meritless.

Smallhoover’s claim that the information does not allege that he was an officer or agent of a corporation required to collect and remit the applicable tax is belied by the very language of the information, itself:

[T]he above named defendant, who was the vice-president and general manager of R. W. Geiser Company, Inc., a Pennsylvania business corporation engaged in the sale of petroleum products, and who was a person required by law to charge, collect and remit to the Department of Revenue of the Commonwealth of Pennsylvania the excise tax described in the Oil Company Franchise Tax Act on behalf of said business, did willfully fail, neglect or refuse to pay said taxes at the time required by law, in violation of the Act of June 23, 1981, P.L. 98, No. 35, § 3, 72 [sic] Pa.C.S. § 9510(c)....

Emphasis supplied. We read the above language as charging Smallhoover as the person who, in his capacity as vice-president and general manager of the corporation, was required to collect and remit the applicable oil franchise tax to the Commonwealth. Acting in the capacity of a corporate representative or agent, Smallhoover is, indeed, a person designated by statute to collect and remit the oil franchise tax.

Smallhoover also maintains that the trial court refused to instruct the jury on his requested point for charge on the statutory definition of “person.” The Commonwealth responds that this issue is waived and cites Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983), to support this claim. In Rineer, the appellant submitted a written point for charge which the trial court denied because it was covered in the general charge. Counsel took an exception. At the end of the charge, the court inquired whether counsel had any additions or corrections to the charge. Rineer’s counsel responded negatively and did not object to the court’s refusal to read the requested point for charge. The Rineer court, relying on Pa.R. Crim.P. 1119(b), held:

[I]n order to preserve an issue regarding the charge to the jury, a specific objection must be made pursuant to Pa.R.Crim.P. 1119(b), even where jury instructions have been timely offered and refused. As noted in [Commonwealth v.] Martinez, [475 Pa. 331, 380 A.2d 747 (1977) ] this will absolutely ensure that the trial court is given an opportunity to avoid error.

310 Pa.Super. at 249, 456 A.2d at 595; footnote omitted. Because the identical scenario ensued at the instant trial, we find that this alleged error has been waived. Id.; See also Commonwealth v. Klinger, supra.

Moreover, this argument is meritless in any event. In reviewing a trial court’s instructions to the jury, it is the charge, taken as a whole, which controls. Therefore, an appellate court will not find error in an isolated excerpt of the charge. Even if the instruction is erroneous, reversal is mandated only if the error prejudiced the appellant. Id. The trial court charged as follows:

In this case, the evidence shows that the business which sold the fuel, and subject to the tax, was a corporation and the defendant is alleged to be an individual who was acting on behalf of the corporation. In this regard, I charge you that if a person so dominates and controls the affairs of the corporation as to immediately direct its action, then he is legally accountable for any conduct he performs or causes to be performed in the name of the corporation or on its behalf to the same extent as if it were performed in his own name or behalf.
Thus, the defendant would be guilty of a crime if he acted or omitted to act — correct that — thus, a defendant would be guilty of a crime if he acted or admitted [sic] to an act in his own name or behalf [sic] is equally guilty if the act or admission [sic] is done in the name or on behalf of the corporation, provided that the person so dominated and controls [sic] the affairs of the corporation as to immediately direct its action.

N.T. 178-79; emphasis added. The language of the above charge tracks that used by the Klinger court in discussing the appellant’s culpability there. Therefore, we conclude that the trial court unerringly charged the jury on Smallhoover’s liability as a person responsible for collection and remittance of the franchise tax.

Smallhoover next cites three instances of alleged trial error. The first relates to the refusal to grant a mistrial because the Commonwealth intimidated a witness and forced the latter to claim his privilege against self-incrimination. The witness in question was Smallhoover’s father, Mr. Smallhoover. Smallhoover argues that the Commonwealth sought to prevent his father’s testimony because it would have impeached that given by the Revenue Agent, Mr. Fullerton. He claims that the Commonwealth threatened to prosecute his father for unsworn falsification to authorities if the latter testified. It is alleged that this threat caused Mr. Smallhoover to assert his privilege against self-incrimination instead of so testifying and that, as a result of this prejudicial event, Smallhoover was deprived of a fair and impartial trial, thus necessitating a mistrial.

The record discloses that the Commonwealth sought an offer of proof from the defense at the opening of the latter’s case concerning the proposed testimony of Mr. Smallhoover. The purpose of the offer was to discover whether Mr. Smallhoover’s proposed testimony would contradict the memorandum of Revenue Agent Fullerton. That memorandum contained a statement to the effect that Mr. Smallhoover did not know until three months after the period of delinquency that the franchise tax was not being paid. According to the offer of proof, Mr. Smallhoover’s proposed trial testimony would have contradicted the Agent’s memorandum in that respect The Commonwealth, concerned that Mr. Smallhoover’s proposed testimony would serve to incriminate him and be the basis of a charge of unsworn falsification to authorities, in addition to subjecting him to criminal liability for non-payment of the franchise tax, proposed to the court that the witness be advised of his right to assert the privilege against self-incrimination and that he be given the corresponding entitlement to consult with independent counsel concerning the potential consequences of his proposed testimony.

Smallhoover’s counsel conceded in Chambers that the court properly afforded Mr. Smallhoover an opportunity to seek the advice of independent counsel and that independent counsel advised Mr. Smallhoover to respond to any material inquiry by asserting his privilege against self-incrimination. Smallhoover claimed at trial and now asserts again on appeal that the Commonwealth’s threat of prosecution prevented Mr. Smallhoover from testifying to contradict the contents of the Agent’s memorandum and, therefore, seriously prejudiced Smallhoover’s defense.

The record does not support Smallhoover’s assertion that the Commonwealth’s informing the court and Smallhoover that Mr. Smallhoover’s proposed testimony could subject him to charges for the same tax violation as well as for other criminal offenses and that the Commonwealth’s suggestion that Mr. Smallhoover be given the opportunity to consult with independent counsel concerning the feasibility of asserting his privilege against self-incrimination if called to testify constituted a coercive influence on Mr. Smallhoover’s decision not to testify. Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624 (1983), citing Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (no impropriety for prosecutor to advise witness of right to assert privilege against self-incrimination where evidence suggests complicity in the crime).

• It is significant that Mr. Smallhoover’s decision not to testify resulted from his consultation with independent counsel. Mr. Smallhoover was not present at the side-bar discussion between counsel for both sides and the court. Nothing in the record even intimates that the prosecutor directly approached or contacted Mr. Smallhoover concerning his proposed testimony. Therefore, he was not subjected to any potentially intimidating or harassing tactics of the prosecutor in any event. Moreover, he was informed of the court’s decision to allow him the opportunity to consult with independent counsel by his son’s counsel, not the prosecutor. The only purpose in calling Mr. Small-hoover after the side-bar and in-chambers exchange would have been the impermissible one of allowing the jury to draw an adverse inference from Mr. Smallhoover’s assertion of the privilege. Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985); Commonwealth v. Bellachio, 296 Pa.Super. 468, 442 A.2d 1147 (1982). If the witness intends to assert the privilege as to virtually all questions at trial, the court may, in its discretion, refuse to allow him to take the stand. Neither party has the right to derive a benefit from any inferences which the jury may draw merely because the witness asserts the privilege. Id.

Furthermore, we cannot ascertain the value of Mr. Small-hoover’s testimony to the defense in any event, since it would not have exculpated Smallhoover in the instant offense, nor would it have served to impeach the reliability and credibility of Revenue Agent Fullerton. Therefore, his first claim of trial error is meritless.

Smallhoover’s next claim of error is based upon the trial court’s purportedly erroneous refusal to grant a continuance of one week to secure the attendance of a witness to the interview between Revenue Agent Fullerton and both Smallhoovers. Smallhoover maintains that this witness was necessary to his defense since Mr. Smallhoover declined to testify on the basis of testimonial privilege. It is well-settled that the grant or denial of a continuance to procure an absent witness lies within the discretion of the trial court. Among the factors to be considered by the court in exercising that discretion are whether the absent witness is necessary to the defense, the facts to which the witness would testify, a party’s diligence in procuring the witness and the likelihood that the witness can be produced for trial. Commonwealth v. Plath, 267 Pa.Super. 1, 405 A.2d 1273 (1979); Commonwealth v. Foreman, 248 Pa.Super. 369, 375 A.2d 142 (1977).

Instantly, Smallhoover was aware well before trial that the sought-to-be-procured witness, Mr. Bilstine, was present at the initial interview between the Revenue Agent and the Smallhoovers because his name was mentioned in the memorandum of Revenue Agent Fullerton which counsel for Smallhoover had in his possession prior to trial. Smallhoover’s counsel, nevertheless, only attempted to contact Mr. Bilstine on the afternoon of the final day of trial. Counsel informed the court that Mr. Bilstine was vacationing in the Bahamas and that efforts to reach him by telephone had been fruitless. He requested the court to continue the trial until the following week when, according to counsel, Mr. Bilstine would have returned from vacation. Counsel admitted that he did not know exactly what Mr. Bilstine’s testimony would be. He could only represent to the court that the testimony would concern Mr. Bilstine’s recollection of the statements made at the interview.

However, the above circumstance is no basis upon which a court would be warranted in granting a continuance. Smallhoover’s counsel has provided no explanation for his failure to contact Mr. Bilstine until the afternoon of the day on which the defense was to present its case. This evidences a lack of diligence upon the part of counsel for Smallhoover. Mr. Bilstine’s statements were available as part of the agent’s memorandum, a copy of which was given to counsel for Smallhoover before trial. Additionally, in chambers, Smallhoover’s counsel advised the court that although he knew that the general nature of Mr. Bilstine’s testimony would relate to the latter’s recollection of the events of the interview, he did not know the specifics of this testimony. Counsel did not set forth how Mr. Bilstine’s testimony would aid his client; rather, it appears that Mr. Bilstine’s testimony would be merely cumulative of the representations made by Mr. Smallhoover at the interview, which representations were part of the Agent’s memorandum. Therefore, the trial court did not abuse its discretion in refusing to grant a continuance of one week to obtain the testimony of Mr. Bilstine. See id.

Moreover, we are at a loss to understand why Mr. Bilstine’s testimony would be sought in the first instance. It is our understanding, from reading the record, that Mr. Bilstine would have related the identical testimony to which Mr. Smallhoover had claimed his privilege against self-incrimination. For this additional reason, we believe that the trial court was correct in refusing to grant a continuance to secure Mr. Bilstine’s testimony.

Smallhoover’s final allegation of trial error relates to the refusal of the trial court to admit into evidence the handwritten notes and typewritten memorandum of Agent Fullerton as a prior inconsistent statement. Agent Fullerton testified at trial that Mr. Smallhoover was not aware of the non-payment of the taxes until after the period of delinquency, or March 1986. Smallhoover claims that this statement is inconsistent with the Agent’s memorandum which made no mention of the precise time when Mr. Smallhoover became aware of the delinquency.

A party may impeach the credibility of an adverse witness by the introduction of evidence showing that the witness has made a prior statement inconsistent with the statement given at trial. Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983). The only essential difference between the memorandum of the interview which Agent Fullerton had prepared and his testimony at trial was that at the latter, he mentioned a specific time frame after which Mr. Smallhoover only then knew that the taxes had not been paid. His memorandum does not mention this time frame. However, nothing in the Agent’s testimony is at variance with that which was contained in the memorandum. Both indicated that Smallhoover was the one in charge of the daily operation of the corporation as general manager and was the one responsible for payment of the taxes which were delinquent. The memorandum did not constitute a verbatim account of what Mr. Smallhoover stated to Revenue Agent Fullerton. It was only a summary of those words. Id, See also Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961).

The trial court admitted the memorandum for the purpose of cross-examination. N.T. 143. Interestingly, Smallhoover’s counsel, on cross-examination of this witness, never inquired when Mr. Smallhoover became aware of the delinquency, even though the former used the contents of this memorandum extensively to ascertain Mr. Smallhoover’s involvement the affairs of the corporation and his responsibility for payment of the taxes. Hence, Smallhoover cannot be heard to complain now on appeal.

Lastly, Smallhoover attacks the tax legislation as being violative of due process on the basis of vagueness and as an unauthorized exercise of the police power of this Commonwealth. We address the issue of vagueness first.

To comport with the due process requirement of notice, a criminal statute must reasonably apprise a person charged with its violation of the conduct so proscribed. Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976). Our Supreme Court described the standard of reasonable notice in a criminal statute as follows:

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

At 5, 354 A.2d at 246, citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). “[W]hen an ascertainable standard is present in a statute, the violator whose conduct falls clearly within the scope of such standard has no standing to complain of vagueness.” 467 Pa. at 7, 354 A.2d at 246. It is now our task to determine whether the legislation in question evinces this standard.

Smallhoover was charged with a six-count violation of willful failure to pay the oil franchise tax. 75 Pa.C.S.A. § 9510(c). Section 9510 is entitled “Penalties”, and subsection (c) thereof is designated “Failure to file report or permit examination.” Section 9510(c) calls for the payment of a fine and/or the imposition of a term of imprisonment for violation of its provisions. Therefore, Section 9510 is to be construed as a criminal statute within the legislative scheme. Appellant’s only claim of vagueness with respect to this statute is that the legislation “lacks the definition and certainity [sic] necessary to inform [him] of the precise acts which the legislature intended to prohibit and for which acts he could be held criminally accountable.” Brief, 28. Section 9510(c), the statute under which Smallhoover stands charged, reads:

(c) Failure to file report or permit examination.- — Any person who willfully fails, neglects or refuses to make a report or to pay the tax as prescribed in this chapter or who shall refuse to permit the department to examine the books, papers and records of any person liable to pay tax under this chapter, shall be guilty of a misdemeanor of the third degree and, upon conviction thereof, shall be sentenced to pay a fine not exceeding $2,500 or to undergo imprisonment not exceeding one year, or both. Such penalty shall be in addition to any other penalties imposed by this chapter.

Smallhoover’s assertion to the contrary, we perceive nothing vague about the terms of this penal statute. Its proscriptions are clear, definite and make room for no guesswork as to an ascertainable standard to be followed in avoiding violation of the statute. This argument amounts to nothing more than a reiteration of his earlier claim that the statute fails to include language which would impose liability upon a corporate officer for inculpatory acts or omissions of the corporation. We have already considered and rejected that argument elsewhere in this Memorandum. We conclude that the type of conduct exhibited by Smallhoover fell clearly within the scope of this ascertainable standard. Therefore, he has no standing to complain of the statute’s vagueness.

However, the primary targets of Smallhoover’s vagueness challenge are Section 9501 and 9502. The former is the definition section and the latter concerns imposition of the franchise tax. Specifically, Smallhoover assails the definition of “petroleum revenue” then in effect because it did not set forth on whom the responsibility for collection the tax, as opposed to payment, lay. He notes that the information charges him with failing to “collect” the franchise tax. However, he was also cited for failing to charge and remit the tax. Naturally, in order to remit the tax, the selling entity must first charge for and collect the applicable tax. Moreover, Section 9502® provides for a one-time collection of the tax on any petroleum product sold or used in the Commonwealth.

In his final attack on the vagueness of this legislation, Smallhoover alleges the complexity and confusing nature of the taxing scheme. However, as the Supreme Court noted in Heinbaugh:

Statutes which are challenged on the ground of vagueness are not, however, to be tested against paradigms of legislative draftsmanship. ‘The fact that [the legislature] might without difficulty have chosen “clear and more precise language” equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague.’ ... Rather, the requirements of due process are satisfied if the statute in question contains reasonable standards to guide the prospective conduct.

467 Pa. at 6, 354 A.2d at 246; emphasis in text; citations omitted. Furthermore, Revenue Agents Fullerton and Meade testified that Smallhoover had indicated to them that he understood the procedure of paying the tax and filling out the forms and that he had previously filled out properly prepared tax forms and had paid the tax. Agent Fullerton further testified that Smallhoover indicated to him that the latter had decided not to pay the taxes for the period in question because of a cash flow problem. It stands to reason, therefore, that Smallhoover’s assertion of vagueness on the basis of the confusion generated by any complex language in the tax statute fails.

Smallhoover finally attacks the oil franchise tax scheme as being an unconstitutional exercise of the police power of this Commonwealth. As with all his other contentions, this issue is equally meritless.

Smallhoover concedes that the purpose of the measure is to generate revenue for highway maintenance and construction. He argues, however, that legislation designed solely as a means for raising revenue cannot be enforced by the exercise of the police power of this Commonwealth. It is true that a legislative enactment designed solely or chiefly to produce revenue cannot be justified as a valid exercise of the police power. Borough of Schuylkill Haven v. Bolton, 190 Pa.Super. 157, 153 A.2d 504 (1959). However, the Commonwealth does not even attempt to argue that the oil franchise tax is a police power measure. Instead, the Commonwealth readily acknowledges that the statute in question was enacted solely to generate revenue.

The short answer to Smallhoover’s claim in this regard lies, we believe, in the authority of the Constitution promulgated by the citizens of this Commonwealth. See id. Article 8, Section 11 of this document specifically empowers the legislature to impose excise taxes on products used in motor transportation and to disburse the revenue generated therefrom for the construction, maintenance and repair of highways and bridges:

§ 11. Gasoline taxes and motor license fees restricted
(a) All proceeds from gasoline and other motor fuel excise taxes, motor vehicle registration fees and license taxes, operators’ license fees and other excise taxes imposed on products used in motor transportation after providing therefrom for (a) costs of administration and collection, (b) payment of obligations incurred in the construction and reconstruction of public highways and bridges shall be appropriated by the General Assembly to agencies of the State or political subdivisions thereof; and used solely for construction, reconstruction, maintenance and repair of and safety on public highways and bridges and costs and expenses incident thereto, and for the payment of obligations incurred for such purposes____

Emphasis added. The enabling legislation is consistent with the above purpose.

§ 9502. Imposition of tax
(a) General rule. — Every oil company incorporated or organized now or hereafter by or under any law of this Commonwealth, or of any other state, territory or by the United States or any foreign government or dependency, and doing business in this Commonwealth, shall pay an ‘oil company franchise tax for highway maintenance and construction’ which shall be an excise tax of 60 mills upon each dollar of its petroleum revenues for the privilege of exercising its corporate franchise or of doing business, or of employing capital, or of owning or leasing property in this Commonwealth in a corporate or organized capacity, or of maintaining an office in this Commonwealth, or of having employees in this Commonwealth, for all or any part of any calendar year.

75 Pa.C.S.A. § 9502; emphasis added.

The penalty provision of Section 9510(c) is merely an effective means by which to enforce collection. If Smallhoover continues to operate the oil and gas distributorship without paying the applicable franchise tax, the purpose of any penalty exacted from him is for willful failure to pay the tax, not for failing to obtain permission from a state licensing agency to operate the business. The latter represents a valid police power measure which is not here applicable. The legislation here in question, then, is not at all an exercise of the police power of this Commonwealth.

This court, in Freeman v. City of Philadelphia, 178 Pa.Super. 290, 116 A.2d 349 (1955), explained the role of a penalty provision enacted as part of legislation which the court deemed to be a revenue measure rather than a licensing provision:

[W]e can see no more effective manner of enforcing than by providing penalties for engaging in the occupation [of auctioneering] without paying the tax. We agree that the police power is used to enforce the measure, but it is so used in all revenue measures and it does not follow that the ordinance was enacted under the police power____ If he conducts his business without paying the tax[,] he pays a penalty for his failure to pay the tax, not because he failed to obtain permission to enter the business.

At 294-95, 116 A.2d 352; emphasis in text. Smallhoover offers two final arguments related to this issue. First, he makes a broad allegation that Section 9510 contravenes Article 1, Section 16 of the state constitution which prohibits imprisonment for civil indebtedness. Smallhoover did not receive a sentence of imprisonment on his conviction. Moreover, a sentence of confinement received pursuant to Section 9510 is the result of a penal violation of the statute. Since we have already determined that the applicable tax legislation does not fall within the ambit of the police power, no merit exists to this contention. Secondly, Small-hoover contends that his prosecution is an usurpation of the police power because he cannot be criminally charged as a person in violation of the legislation. This latter offer amounts to nothing more than a variation of Smallhoover’s earlier argument which we have already rejected.

Judgment of sentence affirmed.

CAVANAUGH, J., filed a concurring opinion.

CAVANAUGH, Judge,

concurring:

I agree with the results reached by the majority. However, I write separately to explain why I believe the trial court was well within its discretion when:

1) it did not grant a mistrial subsequent to Mr. Fred Smallhoover’s exercise of his right against self-incrimination and refusal to testify;
2) it declined to grant a mid-trial one week continuance to secure the attendance of a witness whose testimony would have been of dubious utility to the defense and whose presence or deposition counsel had not previously attempted to procure.

As the majority has explained, counsel for the defense had been prepared to introduce testimony by Mr. Fred Smallhoover, father of the defendant and initial purchaser, principal shareholder and secretary-treasurer of R.W. Geiser Company, Inc. As represented by the defense, the substance of his testimony was to describe the degree of authority he exercised over the defendant. In addition, he would testify that Revenue Agent Fullerton, an important Commonwealth witness, incorrectly reported the date on which Fred Smallhoover said he learned of the tax delinquency in a typed memorandum Mr. Fullerton prepared subsequent to an investigatory meeting attended by Mr. Fullerton, the Smallhoovers, and the Smallhoovers’ attorney, Robert Bilstine. Specifically, Mr. Fullerton reported that Fred Smallhoover said he did not know of the delinquency until March, 1986, three months after the delinquency period was over, while Mr. Smallhoover would claim that he had told the agent he knew about non-payment by September, 1985, three months into the delinquency period.

The majority’s interpretations to the contrary representations by defense counsel illustrate that the value of Fred Smallhoover’s testimony did not lie solely in its concededly remote exculpatory potential, but rather in the possibility that Mr. Fullerton’s reliability and credibility would be impeached thereby. Nonetheless, appellant’s arguments must fail because the Commonwealth, far from intimidating the witness to deprive defendant of his rights, properly called to the attention of the trial court the very real possibility that Fred Smallhoover might inculpate himself by testifying.

Appellant may be accurate in pointing out that the Commonwealth was mistaken when the latter hypothesized that Fred Smallhoover might be liable for unsworn falsification to authorities. However, it is incorrect in stating that Fred Smallhoover’s testimony could not have inculpated him for violating the same tax statute under which his son was charged. During the course of trial, defense counsel attempted to show that Kurt Smallhoover, who was in his early 20’s, did not have sufficient corporate control and domination for liability to attach. It did so by introducing evidence that his father had ultimate oversight and control of the corporation’s activities. Now appellant seeks to persuade us that Fred Smallhoover’s full-time job elsewhere and his lack of day-to-day involvement in Geiser evinced a lack of corporate control and domination, categorically placing him outside the reach of the tax statute’s penalty provisions, to illustrate that the Commonwealth lacked any reasonable basis for suggesting that Fred Smallhoover consult with independent counsel. This inconsistency alone renders appellant’s contentions suspect.

Nevertheless, as a practical matter, even the evidence adduced in the trial of his son would probably be adequate for a trier of fact to find beyond reasonable doubt that Fred Smallhoover, in addition to his son, maintained sufficient control to be convicted under the statute as a principal, accomplice, or accessory. The element which the Commonwealth would then need to prove is whether Fred Smallhoover possessed the requisite intent, that being a willful failure to pay the tax.

It is apparent from the in-chambers discussion (on the record) concerning Fred Smallhoover’s possible testimony that the Commonwealth might very well have sought prosecution of father as well as son, at least on some of the same counts, if it previously had evidence that Fred Smallhoover knew about the non-payment of the tax during, instead of after, the period when it was supposed to be paid. Fred Smallhoover’s testimony might actually have provided the Commonwealth with a prima facie case against him.

It matters not what the “true” motives of the prosecutor were in suggesting that Fred Smallhoover be given opportunity to seek independent counsel; the prosecutor’s actions in notifying the trial court and defense counsel of the possibility of prosecution were presumptively proper because prosecution was a licit possibility, not a “hollow” threat. Thus, the court was correct in denying the motion for mistrial.

Related to Fred Smallhoover’s last minute decision not to testify is the issue of whether the trial court was within its discretion in refusing a mid-trial week long continuance so that the defense could secure the presence of a witness, Mr. Robert Bilstine, who was present at the meeting with Revenue Agent Fullerton and the two Smallhoovers and whose testimony, in lieu of Fred Smallhoover’s, might have impeached Mr. Fullerton’s credibility.

Initially, I disagree with the majority when it finds as one justification for the trial court’s denial of the continuance the fact that the testimony Mr. Bilstine would have related was identical to that for which Fred Smallhoover claimed a privilege against self-incrimination. The majority’s implication that a privilege against self-incrimination can be exercised to prevent another party from testifying is without foundation.

I also question whether it is correct to say that Mr. Bilstine’s testimony would have been “merely cumulative of the representations made by Mr. [Fred] Smallhoover at the interview, which representations were part of the Agent’s memorandum,” as the majority has characterized the situation. Rather, the defense sought to call Mr. Bilstine hoping that he would contravene the accuracy of Mr. Fullerton’s memorandum transcription of Fred Smallhoover’s statements, thus impeaching the credibility of Mr. Fullerton’s testimony based on that memorandum. Keeping in mind that this is a criminal prosecution, the combination of Fred Smallhoover’s continuing unavailability and Mr. Bilstine’s absence from the country may have warranted the grant of a continuance had Fred Smallhoover’s unavailability been an unfair surprise -which unnecessarily deprived defendant of the ability to defend himself.

The fact is, however, that prior to trial the defense possessed all of the information by which counsel could reasonably have anticipated that Mr. Bilstine’s presence was desirable. Defense counsel knew that Mr. Bilstine attended the meeting. It had a copy of Mr. Fullerton’s memorandum. It sought to call Fred Smallhoover for the precise purpose of contradicting representations made in that memorandum to the effect that Fred Smallhoover knew nothing until after the delinquency period. Given that defense counsel expended considerable effort at trial proving that father, not son, controlled the Geiser corporation, it should have come as no surprise when Fred Smallhoover ultimately decided to exercise his right not to incriminate himself with respect to his knowledge that the tax was not being paid during the relevant period. Thus, defense counsel could reasonably have anticipated that a back-up witness was necessary.

Yet defense counsel did not seek to interview Mr. Bilstine on this precise issue before trial and, as a consequence of this failure alone, could not even represent to the trial court the anticipated substance of his testimony, let alone produce him for trial. Conjecture as to whether Mr. Bilstine’s testimony would have aided the defendant is mere speculation; nevertheless, I do agree with the majority that the lack of diligence on the part of defense counsel was responsible for Mr. Bilstine’s unavailability. Under these circumstances, the trial court was amply justified in refusing to continue the trial.

      . The lead opinion was authored by Judge Olszewski. Judge Wicand concurred in result, and Judge Tamilia wrote a concurring opinion in which he agreed with the lead that Klinger was criminally liable for payment of the tax. But Judge Tamilia differed with the lead’s treatment of the issue relating to the discretionary aspects of Klinger’s sentence. That particular issue is not here before us.

      . This provision reads:
      (e) Persons acting or under a duty to act for organizations.—
      (1) A person is legally accountable for any conduct he performs or causes to be performed in the name of a corporation or an unincorporated association or in its behalf to the same extent as if it were performed in his own name or behalf.
      (2) Whenever a duty to act is imposed by law upon a corporation or an unincorporated association, any agent of the corporation or association having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon himself.

      . Pennsylvania Rule of Criminal Procedure 1119(b) reads:
      (b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.

      . A discrepancy appears to exist in the spelling of this witness’ name between the record and the parties’ briefs. We have chosen the spelling as indicated in the record.

      . Contrary to the assertion of my esteemed colleague, Judge James R. Cavanaugh, as set forth in his concurring opinion, we do not implicate in any way that the exercise of the privilege against self-incrimination may be used to prevent another party from testifying. Mr. Smallhoover’s claim of privilege did not pertain to any proposed testimony of Mr. Bilstine. Instead, Mr. Smallhoover exercised the privilege in lieu of the giving of his own testimony.

      . See Historical Note on the 1986 amendment following Section 9501.

      . Since the majority and myself agree that the trial court did not err in refusing to continue the trial, we need not discuss whether Mr. Bilstine’s testimony was otherwise admissible.


author: TAMILIA, Judge.

text:
    567 A.2d 1067
    Mary I. CHAMBERLAIN, Administratrix of the Estate of James E. Zimmerman, Deceased, Appellant, v. ALTOONA HOSPITAL, Jamie Montanez, M.D. and Muthu Verrappan, M.D.
    Superior Court of Pennsylvania.
    Argued March 1, 1989.
    Filed Dec. 4, 1989.
    Reargument Denied Jan. 16, 1990.

      Michele H. Lally, Pittsburgh, for appellant.
    Edward T.J. Grabowski, Hollidaysburg, for Altoona, appellee.
    Gregory S. Olsavick, Altoona, for Montanez and Verrappan, appellees.
    Before CIRILLO, President Judge, and BROSKY and TAMILIA, JJ.
   TAMILIA, Judge.

This is an appeal from the June 28, 1988 Order of court, docketed June 30, 1988, denying appellant’s petition to strike/open a judgment of non pros. Appellant filed her original complaint on March 30, 1987. On June 8, 1987, appellee Jamie Montanez, M.D., filed preliminary objections to the complaint, in the form of a motion to strike and/or compel a more specific complaint. The court granted the motion on September 25, 1987, and directed appellant to file a more specific complaint within twenty (20) days of the Order. The Order did not contain any specific threatened sanction for noncompliance, such as dismissal of appellant’s action.

On October 19, 1987, appellee Montanez, upon appellant’s noncompliance with the above Order, obtained a non pros judgment against appellant. Appellee did not obtain the non pros judgment upon motion to the court. Rather, he obtained it by a praecipe filed with the prothonotary for “failure to file the amended complaint on or before October 15, 1987, in accordance with the ... Order of Court.” Appellee attached a certificate of service, certifying appellant’s counsel had been served with the praecipe. Appellant filed an amended complaint on October 22, 1987, three days after the prothonotary accepted the praecipe for non pros. The prothonotary accepted appellant’s amended complaint, nonetheless. On October 30, 1987, appellee Montanez filed a motion to strike the amended complaint, citing the previous entry of non pros as a bar to the complaint’s filing, and requesting dismissal of the complaint in its entirety.

The litigation proceeded, and not until June 16, 1988 did the court hold the prothonotary had correctly entered non pros. On that basis, the court dismissed the amended complaint as to appellee Montanez only. On June 27, 1988, appellant filed the petition to strike/open. The court denied the petition without a hearing, and this appeal followed.

Appellant first questions the authority of the prothonotary to enter non pros upon praecipe under the present circumstances. The prothonotary performs a ministerial function which includes administering oaths, affixing court seals to records, entering judgments on the docket and exercising such other powers and duties “as may ... be invested in or imposed upon the office by law, home rule charter, order or rule of court, or ordinance ...” See 42 Pa.C.S. § 2737; Fox v. Gabler, 282 Pa.Super. 490, 423 A.2d 351 (1981). His power therefore comes not from his office but from the instrument under which he acts. Smith v. Safeguard Mut. Ins. Co., 212 Pa.Super. 83, 239 A.2d 824 (1968). Where the prothonotary takes an action beyond his authority, such as the entry of judgment where he is not empowered to do so, his action is void, and the judgment entered is a nullity. Ruehl v. Maxwell Steel Co., Inc., 327 Pa.Super. 39, 474 A.2d 1162 (1984). Therefore, it is incumbent upon this Court to determine whether the prothonotary acted within his authority in entering a non pros judgment based on a praecipe, following appellant’s failure to timely file an amended complaint.

We begin with a review of the two Pennsylvania Rules of Civil Procedure pertaining to the entry of judgment for failure to file appropriate pleadings. Pa.R.C.P. 237.1 provides, inter alia:

(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
(b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

Rule 237.1, “by its very title and wording, ... applies only to default judgments,” and not to judgments of non pros. See Perri v. Broad Street Hospital, 330 Pa.Super. 50, 53, 478 A.2d 1344, 1346 (1984). The Perri court’s conclusion is consistent with the Explanatory Note to Rule 237.1, which carefully distinguishes those rules. See Pa.R. C.P. 237.1, Explanatory Note — 1979.

Even if Rule 237.1 were applicable to non pros judgments, the court has not interpreted the phrase “pursuant to an order of court” in 237.1(b) to permit the type of action taken here. In Academy House Council v. Phillips, 312 Pa.Super. 364, 458 A.2d 1002 (1983), the defendant failed to file an answer after the trial court denied preliminary objections and gave defendant, by Order, the “right to plead over •within 20 days.” Plaintiff then praeciped for default judgment. This Court reversed, reasoning the phrase “pursuant to order of court” meant the Order itself had to specify that judgment be entered. The phrase was intended to obviate the need for prior notice where the court was entering judgment, and it was not intended to permit the prothonotary to enter judgment as a sanction for noncompliance with a previous court Order. Id. 458 A.2d at 1004. Hence, Rule 237.1 does not empower the prothonotary to enter non pros upon praecipe.

Turning to Pa.R.C.P. 1037, we find the rule provides, in relevant parir-

ía) If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros.
(b) The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time an answer to a complaint which contains a notice to defendant or for any relief admitted to be due by the defendant’s pleadings.
(c) In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.

Appellee contends the “spirit” of 1037(a) empowers the prothonotary to enter non pros where plaintiff has failed to file either an original or an amended complaint. The clear wording of the rule only authorizes non pros where “an action is not commenced by a complaint,” and this argument is also flawed in light of the Academy House holding. Under appellee’s rationale, one could also read Rule 1037(b) as permitting the entry of non pros for failure to answer after the denial of preliminary objections by an Order of court. This Court’s interpretation of Rule 237.1(b), in Academy House, implicitly rejects this reading. Additionally, we must reject appellee’s spirit of the rule argument because the rules are to be read in pari materia. Pa.R.C.P. 131. We thus do not find the requisite authority in Rule 1037(a).

Rule 1037(b) refers to the plaintiff’s entry of non pros based on the defendant’s failure to answer in the required time. Clearly, 1037(b) does not apply here. Finally, Rule 1037(c) does not apply either because it grants authority to the court, on motion of a party, to enter non pros where appropriate.

We, therefore, come to the inevitable conclusion that, where an amended complaint is not timely filed in accordance with an Order of court, the only proper method for obtaining a judgment of non pros against the plaintiff is by motion to the court for non pros. The prothonotary does not have the authority under those circumstances to interpret the Order and enter non pros solely upon the defendant’s praecipe. Procedurally, appellee should have filed a motion of non pros with the court rather than a praecipe with the prothonotary.

On the other hand, failing to utilize the proper procedure does not render the amended complaint admissible as the time for filing was beyond that set by the court. We believe a just result in this case can only be reached by returning it to the point prior to the filing of the praecipe, after the time had passed to comply with the court Order.

We remand the case to the trial court to have a hearing on the appellee’s motion to strike the amended complaint, which places the parties at the point where they should be. While the non pros may be stricken as improvidently entered, the right to file the amended complaint still must be determined. Appellee is entitled to a hearing on the effect the late filing would have on the conduct of the case. Otherwise, appellant benefits by two prothonotary errors: accepting the praecipe and, subsequently, after non pros was on the record, accepting the amended complaint. We believe the most appropriate means of determining these issues and eradicating the erroneous procedure is to return the case for a hearing on the motion to strike the amended complaint.

Orders vacated and case remanded for proceedings in accordance with this Opinion.

Jurisdiction relinquished.

      . Appellee Altoona Hospital also filed preliminary objections, including a motion for a more specific pleading, which the court granted. On appeal, Altoona Hospital has filed a brief, arguing the dismissal of appellant’s amended complaint and the denial of her petition to strike/open was correct. However, appellant’s action has been dismissed as to appellee Montanez only. As such, appellant’s cause of action against Altoona Hospital has remained viable.


author: MONTEMURO, Judge.

text:
    567 A.2d 1070
    COMMONWEALTH of Pennsylvania v. Clarice SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed Dec. 13, 1989.

      Charles J. Cunningham, III, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge.

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County, Criminal Division on September 22, 1988. The court convicted appellant at a bench trial of third degree murder, voluntary manslaughter and abuse of corpse. The judge denied defendant’s post-verdict motions and this appeal followed. Appellant raises three claims in this appeal. First, appellant claims that there was insufficient evidence to sustain a conviction on any of the three crimes for which appellant was convicted. Second, appellant contends that the trial judge imposed an illegal sentence. Finally, appellant argues that certain physical evidence should not have been admitted, and therefore, she is entitled to a new trial. We affirm.

The trial judge ably summarized the facts established at trial as follows:

Clarice Smith, and the deceased, her three year old daughter Sylvia, lived in a high-rise project on 300 North Busti Street in the Southwest section of Philadelphia. The defendant, a habitual user of cocaine, had a history of neglecting her child. The evidence showed that the defendant, when feeding her child, fed her only once a day. A former paramour of the defendant’s testified that when he showed any affection toward the deceased or tried to feed her another time during the day, the defendant became violent toward him. A neighbor testified that on certain occasions she would hear the defendant screaming and cursing at the deceased. The neighbor also testified that she would hear the deceased crying. Finally, testimony established that the defendant would put the deceased in her room and tie a rope or strap around the door knob on the outside so the deceased could not get out of her room.
On May 21, 1987, the decomposed and mummified body of the child was discovered by maintenance men who had forced their way into the apartment to shut off the utilities. The room in which the deceased was found was at that time locked from the outside by means of a rope or strap which was tied to the outside of the door and attached to another doorknob. The emaciated corpse of the child was found in a kneeling position at the foot of her bed with her head laying over her folded hands on the bed.
The medical examiner testified [to a reasonable degree of medical certainty] that the cause of death was malnutrition and the manner of death was homicide by neglect.
From the testimony it was determined that sometime in February 1987, the child passed away. The defendant, in her statement, admitted that when she discovered that her daughter was dead she moved out of the apartment, doing nothing about properly disposing of the child’s body. She also admitted general mistreatment of the child and an inability to care for her. Evidence also established that the defendant returned to the apartment three times after the death of her daughter and took no action with regard to the corpse. (Citations to record omitted).

When considering appellant’s claim that the evidence was insufficient to support her conviction for any homicide offense or for abuse of corpse, we must view the facts in the light most favorable to the Commonwealth as the verdict winner, and we must draw all proper inferences favorable to the Commonwealth. The evidence, when viewed in this light, must be sufficient for the trier of fact to conclude that every element of the crime has been established beyond a reasonable doubt. Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987) (citing Commonwealth v. Syre, 507 Pa. 299, 303, 489 A.2d 1340, 1342 (1985)).

Appellant argues that the Commonwealth failed to prove both third degree murder and voluntary manslaughter, because there was not enough evidence on the record to show that appellant caused her daughter’s death. In support of this contention, appellant claims that the testimony of the medical examiner established that sudden infant death syndrome was a possible cause of death and that the conclusion that a homicide occurred was only a matter of probability. Contrary to this contention, there was sufficient evidence on the record from which the judge could conclude that appellant caused her daughter’s death. The medical examiner testified on direct examination that, with a reasonable degree of medical certainty, he believed that the cause of death was malnutrition.

A custodial parent has a duty to care for a three year old child, and failure to provide care can be the cause of death when a three year child dies of malnutrition. Moreover, there was sufficient evidence on the record for the judge to conclude that the appellant did more than simply fail in her duty to care for the child. The door was found locked from the outside, and the inside door knob was found next to the decedent which is strong circumstantial evidence that appellant locked the child in the room before she died. While it is true that the examiner admitted on cross examination that he could not completely rule out other natural causes of death, the trial judge was free to weigh this testimony. The judge ruled that the doctor’s opinion on the cause of death, combined with other evidence available at trial, permitted the conclusion that appellant caused her daughter’s death. We will not substitute our discretion for the trial judge’s, and we therefore will not reverse the determination of guilt on both homicide offenses.

In both her post verdict motions and the summary of argument section of her brief, appellant alleges that the evidence did not support a finding of malice necessary to support a conviction for third degree murder. She presents no argument in the body of the brief supporting this argument. The argument is, therefore, waived. Commonwealth v. Anderson, 381 Pa.Super. 1, 13 n. 3, 552 A.2d 1064, 1070 n. 3 (1988).

Appellant also contends that the evidence was insufficient to support her conviction for abuse of corpse. She asserts that there must be some affirmative act upon the corpse, and that her inaction with regard to the corpse precipitated nothing more than the natural decaying process. The abuse of corpse statute provides at 18 Pa.C.S.A. § 5510:

Except as otherwise authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor of the second degree.

There are few reported cases that address this statute. See Commonwealth v. Lore, 338 Pa.Super. 42, 60, 487 A.2d 841, 851 (1984) (denial of demurrer on charge of abuse of corpse affirmed); Commonwealth v. Sudler, 496 Pa. 295, 303, 436 A.2d 1376, 1379 (1981) (sexual abuse of corpse prohibited by abuse of corpse statute, not rape statute). No reported cases address the issue presented here, namely, whether a person who knowingly leaves a corpse to rot, without making arrangements for a proper burial has “treat[ed] a corpse in a way that [s]he knows would outrage ordinary family sensibilities.”

The Pennsylvania statute is based entirely on Model Penal Code § 250.10. We can look to the Model Penal Code and its. Commentaries for guidance in interpreting the Pennsylvania statute. In Comment 2, the drafters of the Model Penal Code stated that “[t]he distinguishing features of the Model Penal Code offense are the generality and comprehensiveness with which the proscribed conduct is defined.” Model Penal Code § 250.10, Comment 2 (1980). Later in the same Comment the drafters noted that “[tjhere are also recent enactments dealing with concealment of a corpse” and a variety of other specific offenses. Id. The drafters then concluded that even a cumulation of the specific provisions is “likely to leave gaps that could be avoided by following the Model Code approach of a generalized statement of the offense.” Id. Therefore, the purpose of drafting the abuse of corpse statute in very broad and general language was to ensure that offenses such as concealing a corpse came under the purview of the statute.

Appellant concealed her daughter’s corpse from the proper authorities, and did not make arrangements for burial because she said she was afraid and confused. In so concealing the corpse, she allowed it to be eaten by rodents and become mummified. The statute was intended to cover appellant’s conduct. Moreover, as the trial court concluded, such conduct does indeed constitute an outrage to ordinary family sensibilities; therefore, we must affirm appellant’s conviction for abuse of corpse.

Appellant claims next that her sentence was illegal. In support of this claim she argues that the trial judge imposed an illegal condition of parole when he prohibited appellant from attaining custody of a minor child. She also asserts that the sentence was excessive in length and that the court’s sentencing rationale was contradictory and incomplete.

The claim that the judge imposed an illegal condition of parole must fail because any such condition is merely a recommendation, and is not binding upon the parole board. 61 Pa.S.A. § 331.18 provides that:

a recommendation made by a judge ... respecting the parole or terms of the parole of such person shall be advisory only, and no order in respect thereto made or attempted to be made as a part of a sentence shall be binding upon the board in performing the duties and functions herein conferred upon it.

Id. Since the condition of parole that appellant not have custody of a minor child has no binding effect on the parole board, appellant does not make out a colorable claim that, because of the condition, the judge imposed an illegal sentence. See Commonwealth v. Kuhn, 327 Pa.Super. 72, 83, 475 A.2d 103, 108 (1984) (claim that judge’s imposition of condition of probation which required that defendant attend the church of his choice did not go to legality of sentence, and was therefore waivable).

Neither the challenge to the condition of probation nor any of the other challenges to the sentence raises a question regarding the legality of sentence. When an appellant’s challenge is not to the legality of sentence, the appellate brief must include a statement of reasons why this court should exercise its discretionary jurisdiction to hear appeals challenging the discretionary aspects of sentencing. Pa.R.A.P. 2119(f); See Commonwealth v. Williams, 386 Pa.Super. 322, 327, 562 A.2d 1385, 1387 (1989). Appellant includes a paragraph in the statement of jurisdiction section of her brief, which makes the bare allegation that the sentence was inconsistent with the sentencing code, and contrary to the norms of the sentencing process. The requirement of a separate statement was designed to allow this court to preliminarily examine the basis of the challenge to the sentence. We must have some facts with which to determine whether a substantial question regarding sentencing has been raised. Commonwealth v. Thomas, 387 Pa.Super. 191, 194-195, 563 A.2d 1249, 1251 (1989) (statement absolutely failed to articulate facts upon which claims were predicated and therefore failed to raise a substantial question). In her statement, appellant has failed to raise a substantial question regarding the discretionary aspects of sentence. Therefore, we will not consider the merits of any of her allegations regarding defects in her sentence.

Appellant’s final claim alleges that the trial court erred in admitting into evidence the door knob that the police found next to the corpse. In its opinion, the trial court thoroughly analyzed the facts and law underlying this claim, and we affirm on the basis of that opinion.

Judgment of sentence affirmed.

      . Even if the argument were not waived we would find it to be meritless. The trial court adequately addressed this issue in its opinion in support of the judgment of sentence, and were the issue not waived, we would affirm the trial court’s resolution of this issue on the basis of the trial court’s opinion.

      . We express no opinion regarding whether the parole board could constitutionally impose such a condition.

      . Appellant also challenges the length of the sentence imposed, and the trial court’s reasons for the sentence. These claims challenge discretionary aspects of sentencing, and do not address the legality of sentence.

      . The Commonwealth contends that appellant failed to comply with Rule 2119(f) because she did not include a separate section of her brief containing reasons for allowance of appeal of a discretionary aspect of sentencing. We find that the inclusion of a separate paragraph in the Statement of Jurisdiction constitutes substantial compliance with the requirement. See Commonwealth v. Darden, 366 Pa.Super. 597, 602, 531 A.2d 1144, 1147 (19870 (while presenting reasons for allowance of appeal in summary of argument, rather than in a separate section did not comply with letter of 2119(f), it complied with substance); Commonwealth v. Muller, 364 Pa.Super. 346, 350 n. 2, 528 A.2d 191, 193 n. 2 (1987).


author: MELINSON, Judge:

text:
    567 A.2d 1074
    COMMONWEALTH of Pennsylvania, Appellant, v. Christopher A. HAUPT.
    Superior Court of Pennsylvania.
    Submitted April 17, 1989.
    Filed Dec. 11, 1989.

      W. Jeffrey Yates, Bellefonte, for appellant.
    Joseph P. Green, Bellefonte, for appellee.
    Before TAMILIA, POPOVICH and MELINSON, JJ.
   MELINSON, Judge:

This is a Commonwealth appeal from the order of the Court of Common Pleas of Centre County granting Christopher A. Haupt’s motion to suppress. The suppression court found that statements Haupt made in response to a state trooper’s questions were obtained during a custodial interrogation without Haupt having the benefit of having his Miranda rights read to him. Thus, the court suppressed his statements. The court also suppressed the information the trooper obtained from the serial number on a revolver found in Haupt’s car as “fruit of the poisonous tree.” The Commonwealth has certified in good faith that the granting of this motion substantially handicaps and effectively terminates its prosecution of Haupt on the charge of carrying a firearm without a license. 18 Pa.C.S.A. § 6106(a). We reverse.

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution, as read in the context of the record as a whole, that remains uncontradicted. Commonwealth v. Lagana, 517 Pa. 371, 375-376, 537 A.2d 1351, 1358 (1988). While we are bound by the court’s findings of facts if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the case. Id.

A suppression hearing was held before the Honorable Charles C. Brown, Jr., President Judge of the Court of Common Pleas of Centre County, on January 19,1988. The only testimony presented was from Pennsylvania State Trooper David Toohey. Trooper Toohey’s testimony, as recounted by the suppression court, was as follows:

On August 6,1987, Trooper David Toohey of the Pennsylvania State Police initiated a traffic stop because of a faulty exhaust system on Defendant’s vehicle. When the trooper approached Defendant’s vehicle, he noticed on the seat next to Defendant was a revolver in its holster, [sic] Upon seeing the revolver, Trooper Toohey ordered Defendant out of the car and up against the front of the vehicle. Defendant was ordered to remain in that position while the trooper inspected the gun and obtained its serial number.
During this time, the trooper also asked Defendant questions concerning his reasons for having the gun in the car, as well as whether Defendant had the proper permits for the gun.
Defendant was not placed under arrest at this time, nor was he read his Miranda rights.

Upon review of the transcript of the suppression hearing we are compelled to note several important omissions from the suppression court’s summary of the salient facts. First, it is uncontested that Trooper Toohey stopped Haupt because he reasonably believed that a provision of the Motor Vehicle Code was being violated. Such a stop is clearly permissible. 75 Pa.C.S.A. § 6808; Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988). Trooper Toohey also testified that he ordered Haupt out of his automobile in order to separate Haupt from the revolver. Then Trooper Toohey asked Haupt if he had a license to carry a firearm. Haupt responded that he had hunting and fishing licenses but did not have a license to carry a firearm in a vehicle or concealed on or about his body. After removing the weapon from the vehicle, Trooper Too-hey checked to see if it was loaded. He also radioed the police station in order to check the firearm’s serial number to determine if it was stolen. After verifying that the weapon was not stolen, the officer issued a written warning for the motor vehicle violation and returned the firearm to Haupt. Haupt was not arrested.

Subsequent investigation revealed that the firearm was registered to Dawn Summers, Haupt’s sister. Toohey verified Haupt’s representation that he held valid hunting and fishing permits and that he was not licensed to carry a firearm pursuant to 18 Pa.C.S.A. § 6109. Thereafter, the instant complaint was initiated.

The suppression court rejected the Commonwealth’s assertion that Miranda warnings were not necessary because this was a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Instead, the court found Trooper Toohey “was not justified in ordering Defendant out of, and up against, the car for a frisk without such belief [that criminal activity was underway] based upon ‘specific and articulable facts indicating that the person frisked is armed and dangerous.’ ” See Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987).

A similar issue was recently addressed by this court in Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988). In Elliott, a Pennsylvania State Trooper stopped Elliott’s automobile for a violation of the Motor Vehicle Code. The Trooper approached Elliott and asked for his operator’s license and registration card. Then the Trooper observed a bag of ice with beer in it located behind the passenger’s seat where a second individual, Ray, was seated. Suspecting that Ray was underage, the Trooper asked him for identification. Ray had no identification, but informed the officer that he was nineteen (19) years old. The Trooper then asked Ray to step outside the vehicle. The trial court found that while the initial stop of the vehicle for a suspected Motor Vehicle Code violation was reasonable, the officer’s ordering Ray, a passenger, out of the vehicle constituted an unreasonable intrusion on his personal security. As a result, the trial court suppressed all evidence obtained after Ray was ordered from the vehicle as “fruit of the poisonous tree.”

In reversing the trial court, this court reviewed the United States Supreme Court’s holding in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam). The Mimms court held that out of a concern for the safety of the police, officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon. The Elliott court stated:

The fact that Trooper Heckman admittedly did not think that Ray was armed and dangerous is of no consequence to our finding that the order to get out of the car was reasonable. The Mimms case makes clear that the officer need not articulate any reason for ordering the driver from the vehicle when the vehicle is lawfully detained for a traffic violation. Indeed, the officer in Mimms could articulate no reason for ordering Mimms out of his vehicle. It was merely his practice to order the occupants out of the vehicle as a matter of course during a traffic stop. The suppression court’s confusion results from a failure to differentiate between the order to exit and the subsequent frisk of the defendant____ Mimms clearly holds that ‘officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon.’ [Citations omitted.]

Reviewing the facts of the instant case in light of Elliott and Mimms, we find that, because Trooper Toohey had effectuated a valid traffic stop, his request that Haupt exit the vehicle was not violative of the Fourth Amendment.

Having determined that the trooper lawfully stopped and removed Haupt from his vehicle, we must next address ourselves to the legality of the Terry pat down for weapons. Once a stop is deemed reasonable for Fourth Amendment purposes, a police officer may frisk an individual to search for weapons if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. In reviewing such conduct, we must balance the nature and quality of the intrusion against the importance of the governmental interests alleged to justify the intrusion. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

Again, we turn to Pennsylvania v. Mimms, supra, for guidance. Applying the standard enunciated in Terry v. Ohio, the Mimms Court held that “the bulge in the [defendant’s] jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of ‘reasonable caution’ would likely have conducted the ‘pat-down.’ ” Mimms, 434 U.S. at 112, 98 S.Ct. at 334, 54 L.Ed.2d at 338. Similarly, in the case at bar we conclude that the trooper’s view of the revolver on the front passenger seat of Haupt’s vehicle was a circumstance under which any man of reasonable caution would have believed that his safety was in danger and would have conducted a frisk. The plain view observation of a weapon within the reach of the driver is at least as persuasive in this regard as the presence of a bulge in his pocket. Accordingly, when we balance the nature and quality of the intrusion (a pat-down search) against the importance of the governmental interests alleged to justify the intrusion (the safety of police officers during motor vehicle stops), we conclude that the search here was permissible. United States v. Place, supra.

Next, we must determine whether Haupt’s Fifth Amendment rights were violated when Trooper Toohey asked him questions during the course of this traffic stop. The suppression court held that Haupt had been subjected to a “custodial interrogation” without the requisite Miranda warning. As a result, Haupt’s statements and the information obtained from the weapon’s serial number were suppressed.

An encounter between police and a suspect may be described as a “mere encounter, an investigative detention, a custodial detention, or a formal arrest.” Commonwealth v. Douglass, 372 Pa.Super. 227, 238, 539 A.2d 412, 417 (1988), citing 3 LaFave, Search and Seizure, §§ 9.1, 9.2 at 332-422 (1987) (discussing the genesis of the Terry stop and the limits of permissible investigative detention); Commonwealth v. Ellis, 379 Pa.Super. 337, 549 A.2d 1323 (1989). Miranda warnings are only required prior to custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966); see also Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). As this court stated in Commonwealth v. Douglass, supra:

A “mere encounter” (or request for information) need not be supported by any level of suspicion, but it carries no official compulsion to stop or respond. An “investigative detention” must be supported by reasonable suspicion; it subjects the suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. A “custodial detention” must be supported by probable cause; it is deemed to arise when the conditions and/or duration of an investigating detention become so coercive as to be the functional equivalent of arrest. Formal arrest requires probable cause, and needs no further definition. [Citations omitted.]

Douglass, 372 Pa.Super. at 238-39, 539 A.2d at 417-418.

In Berkemer v. McCarty, supra, the United States Supreme Court evaluated Fourth and Fifth Amendment concerns with regard to traffic stops.

The usual traffic stop is more analogous to a so-called ‘Terry stop’ than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose ‘observations lead him to suspect’ that a particular person has committed, is committing, or is about to commit a crime, may detain that person in order to ‘investigate the circumstances that provoke that suspicion.’ ‘[T]he stop and inquiry must be “reasonably related in scope to the justification for their initiation.” ’ Typically, this means that the officer may ask that detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obligated to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly non-coercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.

468 U.S. at 439, 104 S.Ct. at 3150, 82 L.Ed.2d at 334. (citations omitted.)

“The clear import of Berkemer is that traffic stops, like Terry stops, constitute investigative rather that custodial detentions, unless under the totality of the circumstances the conditions and duration of the detention become the functional equivalent of an arrest.” Commonwealth v. Ellis, 379 Pa.Super. 337, 353, 549 A.2d 1323 (1988) (citation omitted, emphasis in original); see also Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988) (a single police officer asking defendant a modest number of questions and requesting him to perform a simple balancing test at a location visible to passing motorists constitutes an ordinary traffic stop and does not involve custody for purposes of Miranda.) Thus, we must review the totality of the circumstances to determine whether facts existed which would elevate this traffic stop to the “functional equivalent of an arrest.”

The suppression court, relying on the cross-examination testimony of Trooper Toohey that the officer would have detained Haupt if he had tried to leave, determined that Haupt was in custody. Trooper Toohey testified concerning the stop as follows:

Q. Trooper Toohey, you were asked on direct examination whether or not the defendant was free to go and you said that he was free to go in a limited nature. Could you tell me what those limitations were as you perceived them or what prompted you to answer the question that way?
A. Well, as to whether or not the individual could go back and physically handle the firearm, I was a little leery of that.
Q. So, number one, it would be fair to state that if he, from the position that he was in, moved toward the firearm you would have physically stopped him?
A. I probably would have blocked his path, yes, sir.
Q. Any other limitations?
A. He was free to say what he wanted or to more or less as I talked to him, I expected him to be in the area but if he would have taken off there wouldn’t be much that I could do about it. [sic]
Q. In terms of the limitation of movement, was he free to get back into his car without explanation and start the car and drive off without you doing anything?
A. I was in the process of writing a written warning. I believe that had he taken off again, I would have stopped him again.
Q. So you would have pursued him if he left without your permission at that stage? I know you eventually released him. But at that stage.
A. In the process of issuing the warning, yes, sir.
Q. Was there a point in the sequence of these events that we could say you released him? In other words, you indicated to him that he could go and you were finished with whatever you were doing at that time?
A. When I returned the weapon to his possession and asked him to sign the written warning, yes.
Q. Did you permit him to get back into his car at that time?
A. He was permitted back into his vehicle prior to that. Q. If he had gotten back into his vehicle and left, you would have pursued him, would you not?
A. As far as the traffic violation, yes.
* * * * * *
Q. You ordered him to get out of the car?
A. I believe I — quote—I ordered him to vacate the vehicle.
Q. And he complied with that order?
A. Yes, he did.
Q. - And I’m picturing him now standing, opening the door and standing up and you give him further orders and instructions, didn’t you?
A. Yes, sir. I believe I had him stand near the left front bumper, left front fender of the vehicle.
Q. You directed him to get out of the car. Of course, the door is open and then you directed him up to the left front fender of the automobile?
A. Yes, sir, placing the door between he and the weapon.
Q. That was to remove him from this weapon which was still on the bucket seat on the passenger’s side?
A. That’s correct.
Q. So now we’ve gotten out of the car pursuant to your order and also taken a couple of steps forward to the left front fender, correct?
A. I believe so, yes.
Q. Now, there also came a point where you had him, you put him on the left front fender with his leaning forward with his hands on the left front fender, did you not? [sic]
A. I believe as I entered the vehicle I didn’t want any further gestures made. I’m in a vulnerable situation leaning into a vehicle.
Q. So he wasn’t quite free to do whatever he wanted to do or to leave at that point in time, was he?
A. I don’t know what would have transpired if he had. I probably would have stopped him and talked to him and found out where he was going.

The testimony of Trooper Toohey describes a classic Terry stop. As this court reasoned in Ellis, supra:

It is important to note, however, that while a “seizure” of a suspect by police triggers Fourth Amendment protections, it does not trigger Miranda rights under the Fifth Amendment. “Seizures” and “custody” are analytically distinct concepts in the modern criminal constitutional law lexicon. The mere fact that an individual is subjected to a stop and a period of detention during which the individual is subject to the control of the police and not free to leave (a seizure) does not render such detention “custodial” so as to require Miranda warnings. “While a suspect may certainly walk away from a mere encounter with a police officer, every traffic stop and every Terry stop involves a stop and period of time during which the suspect is not free to go but is subject to the control of the police officer detaining him.” (citations omitted.)

379 Pa.Super. at 354, 549 A.2d at 1331.

Among the factors the court utilizes in determining whether the detention is custodial or investigative are: the basis for the detention; the duration; the location; whether the suspect was transported against his will, how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions. Commonwealth v. Douglass, 372 Pa.Super. at 245, 539 A.2d at 421.

In the instant case, the basis for the detention was a traffic violation; the duration of the stop was approximately fifteen (15) to twenty (20) minutes; and the location was a public street. Haupt was not transported; no restraints were used; and Trooper Toohey made no show, threat, or use of force. The trooper detained Haupt only for the period required to transmit his motor vehicle and weapon information, and issue a warning for the exhaust violation. The record reveals that the trooper asked a moderate number of questions to ascertain Haupt’s identity and to try to “obtain information confirming or dispelling the officer’s suspicions” that Haupt was committing a crime involving the weapon. See Berkemer v. McCarty, supra; Pennsylvania v. Bruder, supra. When Trooper Toohey satisfied himself that the answers given did not provide probable cause for arrest, Haupt was released. See Berkemer v. McCarty, supra; Pennsylvania v. Bruder, supra. Considering the totality of the circumstances of Haupt’s detention, we find that the actions of the trooper constituted an investigative detention, and Miranda warnings were not required.

Order reversed. Jurisdiction relinquished.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires police to advise an individual of the following rights prior to any custodial interrogation: right to remain silent; anything said could be used against him in court; right to speak to an attorney of his own choice before questioning; if he could not afford an attorney, and he wanted one, the police would provide him with one free of charge before questioning; and, if willing to give a statement, he could stop at any time.

      . See 18 Pa.C.S.A. § 6106(b)(9).

      . See 18 Pa.C.S.A. § 6109.

      . The Elliott court did not find it necessary to extend the holding in Mimms to passengers under the facts of that case, but held that where a police officer has lawfully stopped a vehicle for a traffic violation, the officer may order a passenger to alight from the vehicle when he has an articulable basis to believe that criminal activity is afoot without violating the Fourth Amendment. 376 Pa.Super. at 549, 546 A.2d at 660.