author: PRICE, Judge:

text:
    454 A.2d 605
    BRODY’S, INC., Trading as Brody’s, Appellant, v. BRODY BROTHERS, INC., Trading as Brody’s.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied May 4, 1983.

      Benjamin G. McFate, Oil City, for appellant.
    Wayne A. Kablack, Indiana, for appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   PRICE, Judge:

This appeal is from an order that both cancelled appellant Brody’s, Incorporated’s Pennsylvania registration of the trade name “Brody’s”, and refused to permanently enjoin appellee Brody Brother’s, Incorporated from using the same trade name.

Appellant Brody’s, Incorporated (“Oil City Brody’s”) is a Pennsylvania corporation with its principal place of business in Oil City, Pennsylvania, where since 1939 it has operated a women’s and children’s clothing store under the name “Brody’s”. Appellee Brody Brothers, Incorporated (“Indiana Brody’s”), also a Pennsylvania corporation, has operated a clothing store for men, women and children in Indiana, Pennsylvania since 1913, also using the name “Brody’s”. The principals in appellee and appellant corporations are members of the same Brody family responsible for founding both independent entities in the early part of this century. Oil City and Indiana are Western Pennsylvania cities located about 90 miles apart.

The present controversy arises out of appellee Indiana Brody’s decision to open a new “Brody’s” store in the Clarion Mall. The Clarion Mall, near Clarion, Pennsylvania, is located approximately 25 miles southeast of Oil City, and about 60 miles north of Indiana. Oil City Brody’s moved for a preliminary injunction alleging that use of the “Brody’s” trade name in such close proximity to its own store would constitute trade mark infringement and unfair competition. The motion was denied because the mall was not scheduled to open soon enough to cause any immediate harm. Oil City Brody’s subsequent motion for a permanent injunction was granted, but the full relief requested was not given. While Oil City Brody's had sought to prevent any use of the term “Brody’s” in connection with the Clarion Mall Store, the trial court expressly reserved to appellee the right to use its full corporate name, “Brody Brothers, Inc.” but prohibited any use or emphasis of the single term “Brody” or “Brody’s”. Each party filed exceptions to this order, and upon rehearing, the court below dissolved the order and on April 7, 1980 entered a new order denying the injunction, and allowing appellee to use the trade name “Brody’s” for its Clarion store.

Oil City Brody’s appeals from the April 7 order, asserting two grounds of error in the trial court’s denial of injunctive relief. First appellant advances trade name rights inherent in its December 20, 1978 registration of the name “Brody’s”, in accordance with the Act of May 29, 1956, P.L. (1955) 1855, § 1, 73 P.S. § 15, and argues that the court below improperly cancelled the registration. Second, appellant contends that an injunction is mandated under Pennsylvania’s common law of trade marks and unfair competition. We disagree on both counts and affirm.

The lower court correctly precluded Oil City Brody’s assertion of statutory rights by cancelling its registration of the trade name “Brody’s”, in accordance with 73 P.S. § 20.

The statute providing for registration of trade marks and service marks in Pennsylvania requires that all applications for registration must include a statement, made under oath,

that the applicant is the owner of the* trade-mark or service-mark and that no other person has the right to use such trade-mark or service-mark in this Commonwealth, either in the identical form thereof or in any such near resemblance thereto as might be calculated to deceive or to be mistaken therefor.

73 P.S. § 15.

A review of the record leaves no doubt but that the proprietors of Oil City Brody’s, at the time it filed a trade mark application for “Brody’s”, had for a long time been aware that Indiana Brody’s (as well as several businesses in other areas of Western Pennsylvania) was operating a clothing store under the same name. This contradicts appellant’s sworn statement that “no other person has the right to use” the same or a closely similar mark in Pennsylvania. The Commonwealth’s trade mark registration statute provides for the Secretary of the Commonwealth to cancel “[a]ny registration concerning which a court of competent jurisdiction shall find: ... (d) that the registration was obtained fraudulently” 73 P.S. § 20(4). Accordingly we hold that the court below properly ordered cancellation of appellant’s trade name registration, and appellant is therefore barred from asserting any rights that would otherwise result from registration of the mark.

Respecting Oil City Brody’s remaining claim, we note initially that normally under Pennsylvania common law, an injunction will be granted to protect the trade name of a plaintiff who can prove the following three things: first, the plaintiff’s right to exclusive use of the name; second, the defendant’s use of a name confusingly similar to that name; and third, a likelihood of confusion in plaintiff’s competitive area caused by the defendant’s use. Zimmerman v. Holiday Inns of America, Inc., 438 Pa. 528, 534-35, 266 A.2d 87, 90 (1970), cert. denied 400 U.S. 992, 91 S.Ct. 456, 27 L.Ed.2d 440 (1971). In the instant case there is no question as to the second element, (similarity of the names); both parties claim the right to use an identical trade name, “Brody’s”. Normally, then, we would focus on the two remaining issues comprising the test for infringement, namely whether Oil City Brody’s has proven its right to exclusive use of the trade name “Brody’s” in the area of the proposed Clarion Mall Store, and whether the appellee’s use of that name in the Clarion Mall is likely to cause confusion as to the source of the services offered there.

However, the test for infringement is completely different under Pennsylvania law when, as in the instant case, the trade name sought to be enjoined is also the personal name of the party using it. In such cases, the otherwise central issue of likelihood of customer confusion bows to the doctrine that:

[e]very man has the absolute right to use his own name in his business, even though he may thereby interfere with and injure the business of another bearing the same name; provided he does not resort to any artifice, or do any act calculated to mislead the public as to the identity of the establishments, and to produce injury to the other beyond that which results from the similarity of the names.

Seligman v. Fenton, 286 Pa. 372, 375, 133 A. 561, 562 (1926). The most recent Pennsylvania Supreme Court decision concerning the use of one’s personal name as a trade name is the 1940 case of Ralph Brothers Furniture Company v. Ralph, 338 Pa. 360, 12 A.2d 573, in which the court maintained: “The principle is fundamental that an individual is entitled to the use of his own name in his business, unless he has by contract deprived himself of that right.” Id., 338 Pa. at 363, 12 A.2d at 574. We extended the right to include cases such as the instant case, one in which an incorporator’s personal name is used by a corporation. John H. Gates v. Gates Coal Company, Inc., 114 Pa.Superior Ct. 157, 174 A. 3 (1934).

Applying the above principles to the present case, we are compelled to conclude that, even if appellee’s use of its incorporators’ family name “Brody’s” in the Clarion Mall presents a likelihood of confusion with appellant’s name, the use is permitted absent any artifice or act calculated to mislead the public on the part of appellee. Here the evidence supports the chancellor’s conclusion that appellee Indiana Brody’s employed no artifice or act calculated to deceive the public by proposing to use the name “Brody’s” in its Clarion Mall Store. To the contrary, here, as in Seligman v. Fenton, supra, there was an express finding of good faith on the part of appellee. Slip. Op. April 7, 1980 at 5. Therefore any commercial harm experienced by appellant Oil City Brody’s results from a lawful act of appellee Indiana Brody’s: “such inconvenience or loss as may result from an honest use of a person’s name in his business, by reason of its interference with the business of another having the same name, is regarded as damnum absqua injuña.” Seligman v. Fenton, 286 Pa. 372 at 375, 133 A. 561 at 562.

Accordingly, the order denying the motion for a permanent injunction is affirmed.

      . Registration number 79:01 1011 for "Brody’s” in Class 39, Clothing; and registration number 79:01 1038 for "Brody’s” in Class 101, Advertising and Business Services.

      . In addition, 73 P.S. § 20(5) provides for cancellation "[w]hen a court of competent jurisdiction shall order cancellation of a registration on any ground.”

      . In the present case, absent Pennsylvania’s special rule respecting the use of one’s own name as a trade name, Oil City Brody’s would have had to have proven secondary meaning in the name "Brody's"; names primarily understood to be personal names are not inherently distinctive and can be protected as trade names only when they have acquired secondary meaning. See, e.g., Scott Paper Co. v. Scott’s Liquid Gold, Inc., 439 F.Supp. 1022 (D.Del.1977), rev’d on other grounds 589 F.2d 1225 (3rd Cir.1978). See generally, J. McCarthy, Trademarks and Unfair Competition, § 13:2A. "The term 'secondary meaning’ encompasses the situation where people in the trade or purchasing public come to think of a word or name as standing for the business of a particular owner.” Zimmerman v. Holiday Inns of America, Inc., 438 Pa. 528, 535, 266 A.2d 87, 90 (1970) cert. denied 400 U.S. 992, 91 S.Ct. 456, 27 L.Ed.2d 440 (1971).
      "No clear test has emerged in Pennsylvania as a satisfactory method of establishing the existence of a secondary meaning. It is well settled, however, that the burden of proof is upon the party claiming its existence." Quality Weaving Co. v. Regan, 245 Pa.Superior Ct. 66, 369 A.2d 296 (1976). See Miscellaneous, Inc. v. Klein’s Fashions, Inc., 452 Pa. 62, 305 A.2d 22 (1973). In the instant case, Oil City Brody’s advertised in the Clarion area by newspaper and by mailings to charge account customers. Advertising in and of itself will not establish the requisite secondary meaning. Miscellaneous, Inc. v. Dein’s Fashions, Inc., supra; Quaker State Oil Refining Company v. Steinberg, 325 Pa. 273, 189 A. 473 (1937). Oil City Brody’s also presented evidence of confusion among ten Oil City Brody’s customers from the Clarion area. Pennsylvania courts recognize that "incidental customer confusion does not establish a secondary meaning in one’s use of a word or business name”. Quality Weaving Co. v. Regan, supra. We believe that the present record sufficiently supports the chancellor’s conclusion that Oil City Brody’s failed to carry the burden of showing secondary meaning in the name “Brody’s” in the Clarion area, see generally Quality Weaving Co. v. Regan, supra, and cases cited therein; we do not so hold, however, because our disposition of this case relies on the rule that absent fraud, every person has a right to use their own name in business, regardless of whether appellant’s name has acquired secondary meaning, or whether there results likelihood of customer confusion between the litigants’ names.

      . We highlight the fact that for over 40 years the Pennsylvania Supreme Court has not had the opportunity to address the issue of trade name rights in personal names, and emphasize that the weight of modern authority among other jurisdictions and among scholarly writers disfavors our rule. Currently, consideration of the likelihood of confusion by customers is viewed as paramount to the black-letter rule that, absent fraudulent intent, each person has an absolute right to use his name as a trade name. As Professor McCarthy has stated:
      In many situations, consumer protection policy demands that a businessman be enjoined from use of his own name so as to eliminate the likelihood of consumer confusion. Customers who are faced with two or more businesses in related fields with the same surname mark are not particularly concerned with the “inalienable” right of anyone to use his own name as a mark. If a likelihood of confusion exists, it exists irrespective of whether the confusingly similar mark is a personal name or not.
      J. McCarthy, Trademarks and Unfair Competition, § 13:3 (1973). Hence, "... many modern decisions have shifted the emphasis away from the defendant’s subjective mental state, and have placed prime importance upon the issue of likelihood of confusion and consequent consumer deception.” Id., § 13:8B. See, e.g. V.J. Doyle Plumbing Co. v. Doyle, 120 Ariz. 130, 584 P.2d 594 (1978); A.W. Cox Dept. Store Co. v. Cox’s, Inc., 221 S.E.2d 539 (W.Va.1976); Baker Realty Co. v. Baker, 228 Ga. 766, 187 S.E.2d 850 (1972).
      The modern view favors the issuance of qualified injunctions, such as that originally issued below (by the Honorable H. Ray Pope, P.J., before reversal on reconsideration by the Honorable Merle E. Wiser, P.J.), permitting appellee to use only the name "Brody Brothers, Inc.” Such injunctions permit the use of a personal name only insofar as it does not produce a likelihood of confusion.
      Whether or not we are sympathetic to a rule different from that enunciated by our Supreme Court in 1940, we are not free, as an intermediate appellate court, to overrule the decisional law of the Supreme Court of Pennsylvania. Hillbrook Apartments, Inc. v. Nyce Crete Company, 237 Pa.Superior Ct. 565, 573, 352 A.2d 148, 152 (1975).

      . See also John H. Gates v. Gates Coal Company, Inc., 114 Pa.Superior Ct. 157, 174 A. 3 (1934), in which we stated: “A person cannot make a trademark of his own name, and thus obtain a monopoly of it which will debar all other persons of the same name from using their own names in their own business.” Id., 114 Pa.Superior Ct. at 161, 174 A. at 4 (citation omitted).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    454 A.2d 609
    COMMONWEALTH of Pennsylvania v. George PICHINI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1982.
    Filed Dec. 30, 1982.

      Francis M. Socha, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

George Pichini was tried non-jury and convicted of robbery. On direct appeal, the sole issue is whether he was tried timely within the requirements of Pa.R.Crim.P. 1100. We conclude that he was not. Therefore, we reverse the judgment of sentence and order his discharge.

The facts are not in dispute. A complaint was filed against appellant on September 16, 1980, at a time when he was incarcerated in Mifflin County. By computation, the run date on the Dauphin County charge was March 16, 1981. Appellant was preliminarily arraigned on the robbery charge on October 1, 1981, in Dauphin County. At that time he waived preliminary hearing and agreed that the charge should be returned to court. He was returned to the Mifflin County Prison on the following day. From the day he was returned to the Mifflin County Prison to the date of appellant’s scheduled arraignment on February 11, 1981, the representatives of the Commonwealth had no contact with him. He failed to appear for arraignment on February 11, 1981, because unbeknownst to the District Attorney’s office he had been transferred to and was incarcerated at the State Correctional Institution at Camp Hill. A bench warrant was issued and served on appellant the same day. Even so, appellant was not arraigned until February 27, 1981, when he entered a plea of not guilty, requested trial by jury and was told that his trial date would be March 23, 1981. Because this date was seven days beyond the run date of March 16, 1981, the Commonwealth filed a petition under Pa.R.Crim.P. 1100(c) to extend the time within which to commence trial. A hearing was set for the time of trial on March 23, 1981. Prior to that date appellant filed an answer to the Commonwealth’s petition and moved for dismissal. On March 23, 1981, after hearing, the court granted the Commonwealth’s request for an extension and denied appellant’s petition to dismiss. Appellant then waived trial by jury, and a non-jury trial was held on March 24, 1981.

The record discloses that between October 2, 1980 and February 11, 1981, there was no communication whatsoever between the representatives of the Commonwealth and the appellant. During this period, appellant’s case was not listed for arraignment or trial, and the Commonwealth made no other effort to process the criminal action against appellant. Notices of the February 11th arraignment were sent to appellant at the Dauphin County Prison, at the Mifflin County Prison and at an address appearing on the complaint. All were undelivered, for appellant was then incarcerated in the State Correctional Institution at Camp Hill.

In fact, appellant was in prison continuously during this entire period. He had been transferred on October 8, 1980 to the State Correctional Institution at Huntingdon, and on January 14, 1981, he was sent to Camp Hill to serve a sentence imposed by the court in Huntingdon County. He remained at Camp Hill until he was found by the Commonwealth after he failed to appear for arraignment on February 11, 1981. During this period, his prison records disclose, he made seven court appearances in Mifflin and Huntingdon Counties involving a total of thirteen days.

The Commonwealth failed to show that it was entitled to exclude any time under Pa.R.Crim.P. 1100(d)(3)(i). This rule excludes from the computation of the 180 days any period of delay resulting from “the unavailability of the defendant.” The fact of appellant’s continuous incarceration did not alone establish unavailability. He could be considered unavailable only for that period of time during which his presence could not be secured despite due diligence by the Commonwealth. Commonwealth v. Ryan, 306 Pa.Super. 159, 168, 452 A.2d 264, 268 (1982); Commonwealth v. Heath, 288 Pa.Super. 119, 125, 431 A.2d 317, 319 (1981); Commonwealth v. Williams, 284 Pa.Super. 125, 130, 425 A.2d 451, 454 (1981); Commonwealth v. Smith, 274 Pa.Super. 229, 232, 418 A.2d 380, 382 (1980); Commonwealth v. Bass, 260 Pa.Super. 62, 66, 393 A.2d 1012, 1014-1015 (1978); Commonwealth v. Clark, 256 Pa.Super. 456, 463, 390 A.2d 192, 195 (1978); Commonwealth v. Kovacs, 250 Pa.Super. 66, 70, 378 A.2d 455, 457-458 (1977). The Commonwealth did not show that appellant’s presence could not have been secured between October 2, 1980 and March 16, 1981.

The Comment to Rule 1100(d)(3)(i) suggests that a “defendant should be deemed unavailable for the period of time ... during which the defendant was absent under compulsory process requiring his appearance elsewhere in connection with other judicial proceedings.” It is correct, of course, that appellant was involved in other judicial proceedings and was moved about for thirteen days. However, the rule permits only the exclusion of that period of delay which is caused by a defendant’s unavailability. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979). See also: Commonwealth v. Polsky, 493 Pa. 402, 408, 426 A.2d 610, 613 (1981); Commonwealth v. Vaughn, 475 Pa. 227, 232-233, 380 A.2d 326, 329 (1977). Here, there is no evidence that any delay whatsoever was caused by appellant’s presence in Huntingdon and Mifflin Counties because of judicial proceedings then pending in those Counties.

Inasmuch as there were no excludable days, we determine next whether the trial court properly granted the Commonwealth’s petition for an extension. Pa.R.Crim.P. 1100(c) permitted the trial court to grant an extension of time for the commencement of trial upon a record showing by the Commonwealth that the defendant could not be tried within 180 days despite the exercise of due diligence by the Commonwealth. See: Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). “To meet the standard of due diligence, the Commonwealth must take every step that it could reasonably be expected to take in trying to bring a defendant to trial within the prescribed period.” Commonwealth v. Fanelli, 292 Pa.Super. 100, 106, 436 A.2d 1024, 1027 (1981). See also: Commonwealth v. Martofel, 248 Pa.Super. 206, 375 A.2d 60 (1977). However, we do not, in hindsight, judge what could have been done; instead, we judge the actions of the representatives of the Commonwealth in terms of the reasonableness of what was actually done. Commonwealth v. Polsky, supra, 493 Pa. at 407, 426 A.2d at 613.

In the instant case, the Commonwealth failed to meet its burden of showing that it had exercised due diligence. On the contrary, the evidence disclosed the existence of that very inattention which Rule 1100 was intended to prevent. The Commonwealth proved no more than that appellant had been incarcerated continuously in Pennsylvania during the 180 day period. It failed to show that it had expended any time or effort in attempting to commence trial within the time allowed. In the absence of a showing that it could not with due diligence have commenced trial within 180 days, the Commonwealth was not entitled to an extension. It did not suffice to show merely that appellant had been transferred between prisons on several occasions. Similarly, it did not suffice to show that appellant had failed to appear for arraignment when, in fact, he was incarcerated and wholly without notice of the date on which arraignment was being held. That he could readily have been found within the prison system and made available for arraignment and trial in Dauphin County is amply demonstrated by the record. It is confirmed by the ease with which appellant was found and served with a warrant on the very same day that he failed to appear for arraignment.

The Commonwealth also failed to show why appellant could not have been arraigned promptly and tried timely after the District Attorney learned that he was in prison at Camp Hill. After the arrest warrant had been served on February 11, more than a month remained within which to commence trial in compliance with Rule 1100. During that interval, as the District Attorney conceded during the extension hearing, at least one week of regularly scheduled jury trials could have been utilized. Still, despite the urgency which the matter had acquired, the Commonwealth did nothing to commence trial promptly.

The record, in brief, shows that the Commonwealth did not take every reasonable step that it could be expected to take to bring appellant to trial within 180 days. In fact, it did little or nothing to achieve a timely trial. In the absence of a showing that due diligence was exercised, the trial court could not properly extend the time for trial. It should have granted appellant’s motion to dismiss.

The judgment of sentence is reversed, and appellant is discharged.

      . The 180th day was March 15, 1981, a Sunday.


author: CIRILLO, Judge:

text:
    454 A.2d 612
    COMMONWEALTH of Pennsylvania v. James Clarence DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1982.
    Filed Dec. 30, 1982.

      Robert Niels Tarman, Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence, dated July 23, 1981, by Dowling, J., in the Court of Common Pleas Dauphin County. Appellant was found guilty, in a jury proceeding, of one (1) count of possession of a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter Act). He was sentenced to a term of imprisonment for not less than two (2) nor more than five (5) years. Post-trial motions were filed and denied. This appeal followed.

On July 14, 1979, two detectives were attempting to serve a warrant and capias on a person frequenting an apartment when one of the detectives saw, through the open door of the apartment, the appellant sitting on a bed moving white powder around on a book with a card. He also noticed a plastic bag between appellant’s legs which contained a white powder substance. The bag was confiscated and the substance on the book was brushed into the bag by the detective. Appellant was charged with possession with intent to manufacture or deliver a controlled substance. He admitted to the detectives at the scene, that he was snorting cocaine. The results of a field test were consistent with his statement and he was accordingly so charged. Subsequently, the contents of the bag were tested further by a chemist at the Pennsylvania State Police laboratory. These tests determined that the contents of the bag contained heroin and not cocaine. Accordingly, on March 10, 1980, the Commonwealth filed and was granted a Motion to Amend the complaint from cocaine to heroin.

At trial appellant testified that when he arrived at this apartment there were three other people in the bedroom and the plastic bag was on the bed. He said that he was given a small amount of cocaine by a Spanish man who left shortly after his arrival. He testified that this was what he was snorting when the police arrived and that at no time did he touch the bag on the bed.

On appeal appellant contends that the evidence was insufficient to sustain the verdict. When analysing the sufficiency of the evidence a two-step analysis is required. First, the evidence must be regarded in the light most favorable to the Commonwealth as the verdict winner, accepting as true all evidence on which the fact finder could properly have based its verdict. Next, inquiry must be made to determine whether that evidence, together with all reasonable inferences was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Jones, 291 Pa.Super. 69, 435 A.2d 223 (1981); Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981).

Appellant was charged with possession of heroin. This offense requires proof that the substance was in the possession of the appellant and that it was heroin. The Commonwealth proceeded on a theory of constructive possession. To prove constructive possession, two things must be established: 1) the power to control and 2) the intent to exercise that control. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968); Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975). This type of possession can be inferred from the totality of the circumstances. Commonwealth v. Carter, 230 Pa.Super. 236, 326 A.2d 480 (1974).

There was conflicting testimony as to the exact location of the plastic bag on the bed. The appellant asserted that the bag was in the middle of the bed. The detective who confiscated the bag stated that it was between the appellant’s legs. In evaluating sufficiency of the evidence on appeal all disputed facts are resolved in favor of the Commonwealth, the verdict winner. Commonwealth v. Conrad, 285 Pa.Super. 571, 428 A.2d 192 (1981). The other detective observed the appellant with the book in his hands. He also observed him pushing the white powder on the book with a card. This powder was placed in the bag taken from the bed. When this powder was further analysed it was found to be heroin. The chemist’s testimony also further contradicted appellant’s allegation that the substance on the book was cocaine and that he knew nothing about the bag of heroin.

Q. Now, if there had been cocaine contained in there [the bag], would you have discovered that?
A. Yes, I would have.
Q. Did you discover any cocaine?
A. No, I did not.

Therefore, the jury could infer that the substance being pushed around on the book was heroin. As to the inconsistency between the field test and those in the lab, the chemist testified:

The initial result for cocaine; that is, a positive test, is due to, number one, the quinine will give you a blue coloration very similar to that which is found with cocaine ____ That initial test means nothing. It just simply means there is a substance present that will give a reaction, a blue color reaction and it really does not specifically pin down that powder contains quinine or cocaine or whatever. There are numerous, very many substances that will [give] a positive reaction with that chemical reagent. It just indicates that there is something there basically.

Consequently, we find that the Commonwealth met its burden of proving possession of the controlled substance and that the substance was heroin. Accordingly, we hold that the evidence was sufficient to sustain the verdict.

Appellant next contends that the court erred in permitting the amendment of the information from cocaine to heroin. Rule 229 of the Pennsylvania Rules of Criminal Procedure provides,

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

Appellant contends that he was prejudiced by the amendment of the complaint 10 days before trial. He also asserts that the amendment to the complaint changed the offense to a greater one.

The purpose of Rule 229 is to insure that a defendant is fully apprised of the charges against him, and to avoid prejudice by prohibiting last minute additions of alleged criminal acts of which the defendant is uninformed. Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979).

[T]he courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the charge, then amendment is not permitted.

Id. 265 Pa.Super. at 212-213, 401 A.2d at 1175.

In the instant case, appellant alleges that because the amended complaint changed the offense from a Schedule II drug violation (cocaine) to a Schedule I violation (heroin), this was a different offense and therefore did not meet the requirements of Stanley. In Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979), this court held that a defendant was not prejudiced by a variation between a complaint charging him with possession of a controlled substance, which was erroneously alleged to be heroin, and was proved at trial to be methamphetamine, because possession of either was the same offense under the Act. In addition, the fact remains, that the amendment neither changed the basic elements of the offense charged nor the factual situation. In Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979), this court discharged a case in which the Commonwealth had amended the complaint to include “second offense” in the description of the crime. The court held that, “since a second offense carries a greater penalty than a first offense, it ‘is different in kind and character from a first offense’ ”. (citations omitted) Id., 264 Pa.Superior Ct. at 416, 399 A.2d at 1119. That is not the situation in the case at bar. The penalty for either possession of cocaine or heroin would be the same. See, 35 Pa.C.S.A. § 780-113(a)(16). Therefore, we find that the court acted properly in permitting the amendment to the complaint and that no prejudice resulted therein to the appellant.

Appellant further contends that the sentence imposed was illegal; that the court failed to state its reasons for the sentence on the record; and that he was denied his right to allocution. The sentence imposed was two (2) to five (5) years imprisonment. The Act specifically states that:

Any person who violates any of the provisions of clauses ... (15) through (20) of subsection (a) shall be guilty of a misdemeanor, and ... on conviction thereof, be sentenced to imprisonment not exceeding one year ... but, if the violation is committed after a prior conviction of such person for a violation of this act ... has become final, such person shall be sentenced to imprisonment not exceeding three years... (emphasis added)

Since appellant has a past conviction for violation of the Act, his term of imprisonment may not exceed three years. Therefore, we find that the sentence imposed exceeds that provided by statute and may not be upheld. This decision renders appellant’s further contentions moot.

Judgment of sentence vacated. Remand for resentencing. We do not retain jurisdiction.

      . Act of April 14, 1972, P.L. 233, No. 64, § 1; 35 P.S. 780-113(a)(16).

      . At trial appellant was acquitted of possession with intent to manufacture and deliver. He was found guilty only of possession.

      . Pa.R.Crim.P., Rule 229. Adopted and effective Feb. 15, 1974.

      . Act of April 14, 1972, P.L. 233, No. 64, § 4; 35 P.S. § 780-104.

      . Methamphetamine is a Schedule II offense and it could be argued that in Kelly the offense proved was a lesser offense than that charged. However, the fact remains that defenses to possession of either would be the same.

      . Act of April 12, P.L. 233, No. 64, § 13; 35 P.S. § 780-113(b).


author: BECK, Judge:

text:
    454 A.2d 615
    COMMONWEALTH of Pennsylvania v. Robert E. RESSLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 15, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied May 16, 1983.

      John D. Enck, Lebanon, for appellant.
    William Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   BECK, Judge:

This is a direct appeal from the judgment of sentence entered against Appellant by the Court of Common Pleas of Lebanon County. Two claims are made.

One is a boilerplate claim that the verdict was “contrary to the evidence, contrary to the weight of the evidence, contrary to the law, and whether the evidence was insufficient to sustain the verdict.” Taking this as a general claim of insufficiency of evidence, we have carefully reviewed the trial transcript. The two Commonwealth witnesses who established Appellant’s guilt had been charged as co-conspirators. They unambiguously identified Appellant and described his role, as leader and planner, of the two burglaries for which he and they had been charged. The jury was made aware of the factors such as personal animosities and bargains with the Commonwealth that might detract from the credibility of these witnesses. The jury chose to believe their testimony.

Our scope of review is limited to the question of whether, considering the evidence in the light most favorable to the Commonwealth, the trier of fact can find every element of the crime proved beyond a reasonable doubt. Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978). In this case, it is clear that there was evidence from which the trier of fact could lawfully and logically convict Appellant as charged.

Appellant’s second claim is that trial did not commence within 180 days of the date the criminal complaint was filed. Rule 1100, R.Crim.P. The Commonwealth does not dispute that the criminal complaint was lodged against appellant on December 6, 1979 and the trial conducted on June 26, 1980, 23 days after the run date. The Commonwealth argues, however, that certain periods of the interim time are excludable from computation due to unavailability of the Appellant. Rule 1100(d)(3)(i). There were three separate dates during the time period in question when Appellant was said to be unavailable for a preliminary hearing resulting in continuances. The question for this court in each instance was whether the Commonwealth fulfilled its duty under Rule 1100 in light of the cases clarifying the duty of the Commonwealth to exercise due diligence to secure Appellant’s availability and to avoid unnecessarily long delays in rescheduling of the proceedings. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Goodman, 260 Pa.Super. 266, 393 A.2d 1256 (1978).

The calendar of relevant events was as follows: December 6, 1979, complaint lodged; January 2, 1980, arrest, arraignment and admission to bail; January 11, 1980, preliminary hearing convened and continued until February 29, 1980; February 29, 1980 preliminary hearing continued until March 10, 1980; March 10, preliminary hearing continued until April 7, 1980; April 7, 1980 preliminary hearing continued until May 2, 1980; May 2, 1980 preliminary hearing held; June 26, 1980, trial held.

The preliminary hearing was postponed four times before it was finally held. Three of these continuances were held by the court below to be the fault of the Appellant. All of the time between each scheduled preliminary hearing and the date to which it was continued was subtracted from the 180 day computation. Any one of these three periods of time was long enough so that if subtracted from the total time elapsed, the Commonwealth will be found to have met its responsibility under Rule 1100.

Upon careful review of the testimony and the case law concerning unavailability of a defendant, we conclude that two of the three periods were improperly charged to the Appellant, as the Commonwealth cannot be said to have exercised due diligence under the circumstances. However, the third was properly charged to the Appellant. Consequently, we will uphold the trial court’s conclusion that the requirement of the Rule was met.

The first period of time charged to the Appellant was January 11 until February 29, 1980. The record reveals that appellant did not appear for the preliminary hearing scheduled on January 11. Transcript 6/18/80 (T. 31). Although Appellant denied he knew of this scheduled hearing, (T. 31), Appellant had notice of the date in writing when he personally signed his Bail Bond on January 2, 1980. When Appellant was admitted to bail, (Nominal no-surety bail of $1000 ROR) he pledged to appear “at all times as his presence may be required...”. Condition 1, Bail Bond. See also Rule 4013, Rules of Criminal Procedure. The Bond plainly stated the date, place, and time of the January 11 preliminary hearing. When Appellant failed to appear, District Justice Schultz might have issued a bench warrant, revoked bail, and ordered a search for Appellant. On the record before us it does not appear that she did so. Nevertheless, it is not the intention of Rule 1100 to benefit a defendant who fails to live up to the requirements of bail.

Where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon receipt of reasonable notice. To focus solely upon the conduct of the Commonwealth not only ignores the defendant’s dereliction of an obligation, but also places him in the position of possibly benefitting from his own wrongdoing. Where the delay results from the defendant’s willful failure to appear at the appointed time it is obviously not the type of harm envisioned in the protections sought to be afforded by the speedy trial guarantee. To the contrary, the delay is directly attributable to the fact that he was in a bail status, and not in custody, and that he deliberately abused that prerogative.
The factual situation presented in this appeal is clearly distinguishable from that presented in Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). There, we were concerned with the Commonwealth’s due diligence in serving the warrant of arrest upon the accused. In that setting we held the fact that the defendant was not located would not be treated as excluding any period of time required to ascertain his whereabouts absent a showing that the Commonwealth had exercised due diligence in attempting to locate him. In substance, we were saying that the Commonwealth would not be excused for a delay occurring because it failed to make a reasonable effort to locate the defendant. However, that situation differs from one where the defendant has the obligation to be available and is aware of the appointed time and place where his presence is required.

Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978).

Appellant has also suggested that the Commonwealth need not have continued the preliminary hearing so far into the future, resulting in a total delay of forty-nine days following January 11. The Commonwealth does have an obligation to avoid lengthy delays due to unavailability of a defendant. However, we note that the cases in which the Commonwealth has been held responsible for such delays, the facts were distinguishable from the instant case. In one such case, the defendant had voluntarily appeared later the same day after he missed a proceeding. Commonwealth v. Johnson, 265 Pa.Super. 27, 401 A.2d 783 (1979). In another, a defendant was involved in a proceeding in another jurisdiction, yet Pennsylvania authorities made no effort to determine how long those proceedings would continue, so that an unnecessarily long delay could be avoided. Commonwealth v. Morgan. Pennsylvania courts have not defined with precision what period of time constitutes a delay that should be considered unnecessarily long. The facts of each case must be examined. We would not place a heavy burden on the Commonwealth where the delay was due to the fact that the appellant on bail absconded, as in the instant case.

The second and third periods of time for which Appellant was regarded as “unavailable” occurred during a time that Appellant was incarcerated in Berks County.

A preliminary hearing was scheduled for March 10, 1980. The record reveals that on March 10 Trooper Samuel C. Curley obtained a writ of habeas corpus and went to Berks County Prison to pick up Appellant. When he arrived at the prison he was informed that Appellant was “in the hospital having his teeth fixed and would not be available” (T. 22). Trooper Curley testified that he probably would have arrived at the Berks County prison about one hour before the scheduled Lebanon County proceeding (T. 27). A preliminary hearing was scheduled for April 7, 1980. On April 7 Trooper Curley again arrived at Berks County prison and found that Appellant was attending court proceedings in Berks County (T.22). In neither instance does the record reveal that any effort was made in advance of March 10 or April 7 to obtain the cooperation of, or even information from, Berks County officials, so as to be sure of the presence and availability of Appellant. This cannot be described as due diligence on the part of the Commonwealth.

When a criminal defendant is unavailable due to incarceration in another jurisdiction, the Commonwealth must exercise due diligence to obtain his presence for proceedings. Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); Commonwealth v. McCafferty, 242 Pa.Super. 218, 363 A.2d 1239 (1976). It is not the duty of the defendant to take steps to secure continuances or otherwise to advance the criminal proceedings against him. Commonwealth v. Wade, 240 Pa.Super. 454, 360 A.2d 752 (1976); Commonwealth v. Morgan.

We are not enlarging upon the Commonwealth’s duty to suggest that it take reasonable steps to secure the cooperation of a neighboring county in producing a defendant for criminal proceedings. Therefore, we conclude that the two time periods from March 10 to April 7 and from April 7 to May 2 should not have been excluded from the 180 day computation. Nevertheless, as stated above, the period from January 11 to February 29 is excludable, and therefore trial commenced before the expiration of 180 days.

Judgment of sentence affirmed.

WICKERSHAM and POPOVICH, JJ., concur in the result.

      . The Commonwealth petitioned in May for an extension of time within which trial must be held. After a hearing in June, the court ruled that extension was unnecessary because of the time periods it ruled excludable, the same as those challenged here.


author: JOHNSON, Judge:

text:
    454 A.2d 618
    Vivian MAXTON, Appellant, v. PHILADELPHIA HOUSING AUTHORITY.
    Superior Court of Pennsylvania.
    Argued June 4, 1982.
    Filed Dec. 30, 1982.

      Arthur Edgar Schmidt, Philadelphia, for appellant.
    Harold L. Frank, Philadelphia, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

In 1972 public housing tenants in Philadelphia brought suit in federal court against the Philadelphia Housing Authority in order to secure their procedural due process rights. A consent decree was entered in 1974 and amended in 1978. The 1978 amendment dealt with the tenants’ grievance procedure. It provided, at paragraph 3 of the stipulation of counsel which was approved and adopted by the court:

If either party should appeal an arbitration award, such appeal shall be governed by the provisions of the Pennsylvania Arbitration Act of 1927. A party contesting an arbitrator’s award shall have thirty (30) days to notify the other party of its intention of appealing, and sixty (60) days thereafter to perfect said appeal.

The Pennsylvania Arbitration Act of 1927 was repealed by the Act of October 5, 1980, P.L. 693, No. 142, § 501(c). It was replaced by the Uniform Arbitration Act, Act of October 5, 1980, P.L. 693, No. 142, § 501(a), 42 Pa.C.S.A. §§ 7301 et seq. (Purdon Pamp.1982).

The Pennsylvania Arbitration Act of 1927 provided, at 5 P.S. § 173, that notice of a motion to vacate, modify, or correct an award should be filed within three months after the award was filed or delivered. The current Uniform Arbitration Act, in force since 1980, provides that an application for vacating or modifying or correcting an arbitrator’s award shall be made within thirty days of delivery of the award. 42 Pa.C.S.A. §§ 7314(b), 7315(a).

In March 1980, the appellant in this case, a tenant of the Philadelphia Housing Authority, requested an adjustment in her rent, based on a federal regulation which allows a deduction, for certain medical expenses, from a tenant’s gross income in the computation of the adjusted income on which the rent is based.

Appellant’s reason for requesting the medical expense deduction was that her son suffers from juvenile diabetes mellitus, which can be controlled, inter alia, by a nutritionally balanced diet, consisting of three balanced meals and three nutritious snacks per day, of low carbohydrate and high protein, and avoiding “junk foods.”

Appellant’s request was denied. Appellant thereupon requested a grievance hearing before an arbitrator in accordance with the consent decree’s grievance procedure. The arbitrator concluded that the diet prescribed for appellant’s child was not a medical expense, and denied her request for rent reduction. The award was entered on April 23, 1981.

On July 22, 1981, appellant filed her petition to modify or correct the arbitration award. The Court of Common Pleas of Philadelphia County dismissed the petition with prejudice on two grounds: first, that under the Uniform Arbitration Act, the petition was filed after the passing of the statutory time limit for the filing of such a petition, and, second, that the petition did not allege any of the material facts or errors which, under the Uniform Arbitration Act, a court is empowered to review.

The appeal from the court’s dismissal of the petition presents for our review the question whether the language in the consent decree as to the applicability of the now-repealed Arbitration Act of 1927, controls, so that (1) the statute of limitations and (2) the standard of review of the old Act are still in effect as to those parties to the decree.

In Pennsylvania, a consent judgment is a contract between the parties, as our appellate courts have stated:

“A consent decree is not a legal determination by the court of the matters in controversy but is merely an agreement between the parties—a contract binding the parties thereto to the terms thereof.” Universal Builders Supply, Inc. v. Shaler Highlands Corp., 405 Pa. 259, 265, 175 A.2d 58, 61 (1961). See also, Commonwealth v. United States Steel Corp., 15 Pa.Commw. 184, 190, 325 A.2d 324, 328 (1974). Our courts have also stated that the terms of a consent decree cannot be modified in the absence of fraud, accident or mistake. Commonwealth v. United States Steel Corp., 15 Pa.Commw. at 190, 325 A.2d at 328.

It is also the law in Pennsylvania, however, that statutory time limitations for appeal are jurisdictional matters. They go to the competence of the court to hear the matter. Time limitations cannot be extended as a matter of grace or indulgence. See West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Luckenbach v. Luckenbach, 443 Pa. 417, 418, 281 A.2d 169, 169 (1971); Dougherty v. Commonwealth Dept. of Public Welfare, 62 Pa.Commw. 15, 19, 434 A.2d 914, 917 (1981); Wechsler v. Newman, 256 Pa.Super. 81, 89, 389 A.2d 611, 615 (1978); MacKanick v. Rubin, 244 Pa.Super. 467, 470, 368 A.2d 815, 817 (1976); Higgins v. The Educators, 147 Pa.Super. 400, 402, 24 A.2d 19, 20 (1942). The courts have no power to extend statutory appeal time or to allow an appeal nunc pro tunc in the absence of fraud, or its equivalent, or some breakdown in the court’s operation. Id.

It is also the rule that parties cannot by agreement confer jurisdiction on a court. Central Contracting Co. v. Youngdahl & Co., 418 Pa. 122, 132, 209 A.2d 810, 816 (1965); Stadler v. Borough of Mt. Oliver, 373 Pa. 316, 318, 95 A.2d 776 (1953); Wechsler v. Newman, 256 Pa.Super. 81, 89, 389 A.2d 611, 615 (1978); MacKanick v. Rubin, 244 Pa.Super. 467, 471, 368 A.2d 815, 818 (1976).

Despite the contractual agreement that the Act of 1927 was to be applied to grievances by tenants against the PHA, and that appeal to the courts from an arbitrator’s award should be filed within 90 days, the new Act provides that the petition to modify the award be filed within 30 days. In other words, the court is not now competent to entertain a petition filed after the 30 days. The lower court therefore did not err in dismissing the petition.

The lower court also found that the petition did not allege material facts or errors which would support the court’s review. Section 501(a) of the Uniform Arbitration Act provides for modification or correction of an award by the court where:

(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(3) the award is deficient in a matter of form, not affecting the merits of the controversy.

42 Pa.C.S.A. § 7315(a) (Purdon Pamp.1982). The Act contains a savings clause, see section 501(b) of the Act, which provides that under agreements made expressly providing for arbitration under the Arbitration Act of 1927 the court may apply the standard for review contained in section 501(a), codified at 42 Pa.C.S.A. § 7302(d)(2) as follows:

Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

This savings clause however does not save the repealed act’s time limitations. Even were the court to deem that the arbitrator’s decision was contrary to the law, the untimeliness of the petition to the court deprived the court of jurisdiction to examine the merits of the controversy.

The order of the court dismissing the petition is affirmed.

      . Brown v. Philadelphia Housing Authority, Civil Action No. 72-2083 (E.D.Pa.1972). See Brief for Appellant at 8.

      . Brown, supra note 1, order filed April 24, 1978.

      . Act of April 25, 1927, P.L. 381, No. 248, § 1, codified at 5 P.S. § 161 et seq. (Purdon 1963).

      . See Exhibit B attached to appellant’s petition to modify or correct the arbitration award.


author: MONTEMURO, Judge:

text:
    454 A.2d 621
    COMMONWEALTH of Pennsylvania v. Charles A. CASUCCIO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied May 12, 1983.

      William M. Panella, New Castle, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before PRICE, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

Following a bench trial in the Court of Common Pleas of Butler County presided over by the Honorable John C. Dillon, the appellant was found guilty of the crime of theft by unlawful taking or disposition, 18 Pa.C.S.A. § 3921(a). Appellant thereafter filed timely post-trial motions which were argued and denied. Appellant was sentenced to the maximum term of not less than three and one-half (3V2) years nor more than seven (7) years imprisonment and ordered to make restitution to the victim of the theft in the amount of eleven thousand fifty-nine ($11,059.00) dollars and directed to pay the costs of prosecution. The court subsequently denied appellant’s timely filed motion to modify or vacate the sentence. This appeal is from the final judgment of sentence and for the reasons that follow we affirm the trial court’s decision.

HISTORY OF THE CASE

On Friday, September 7, 1979, James M. Brown, a truck driver who lived with his family in Butler County, parked his 1979 Mack tractor and Fruehauf trailer, loaded with twenty-one thousand (21,000) pounds of steel bars, on a lot owned by his friend on South Main Street, Zelienople Borough, Butler County. On Sunday morning, September 9, 1979, Brown’s wife drove him to the location where he had left his tractor and trailer so that he could make delivery of the steel bars to St. Louis, Missouri. The delivery would never be made. Mr. Brown discovered that his tractor and trailer worth approximately sixty-nine thousand eight hundred and ninety ($69,890.00) dollars, together with the load of steel worth approximately ninety-eight hundred ($9800.00) dollars, had been stolen. He reported the theft to the police in Zelienople Borough and completed a routine police report. On that same date, September 9, 1979, the Zelienople Police Department advised the police in neighboring Beaver County of the theft by voice communication and teletype. The department repeated the notification procedure on approximately September 21, 1979.

On September 28, 1979, police from Zelienople Borough, Butler County, police from North Sewickley Township, Beaver County, officers from the Sheriffs Department of Beaver County and two agents from the Federal Bureau of Investigation, numbering in all approximately eleven (11) police personnel, conducted a search on the authority of two (2) search warrants which had been issued on the same day by District Justice Arthur L. Schlemer of Beaver County. The premises designated on Search Warrant E-10879 to be searched were four (4) block and wood garages, three (3) wooden sheds and one (1) aluminum shed located at 1164 Chapel Drive, North Sewickley Township, Beaver County. The premises designated on Search Warrant E-10880 to be searched was a mobile home, white with brown trim located on a lane on the property of Harry Boots, 1164 Chapel Drive, North Sewickley Township, Beaver County. All of the premises to be searched were located on a farm which the tax maps indicated was owned by Harry Boots.

The items to be searched for in Search Warrant E-10879 were identified as a “Hobart Welder ... and a truck said by Harry Boots to be stolen.” The item to be searched for in Search Warrant E-10879 was identified as a “color television set, Serial No. 2408 ...” The probable cause for issuing both warrants was based on information received from a confidential informant who observed the items on the premises on September 27, 1979, the day before the warrants were executed. The affiant on both warrants also stated that he had received information from the confidential informant over a period of seven years and that the information which proved to be reliable led to the conviction of three named individuals.

It is clear from the record that Mrs. Harry Boots, the widow of Harry Boots, owned the farm, the farmhouse, all of the garages and sheds and the mobile home. Mrs. Boots resided in the farmhouse, where she had lived with her late husband; the appellant and Mrs. Boots’ daughter, Virginia Korn, resided in the mobile home.

Douglas E. Young, Chief of Police of North Sewickley Township, Beaver County, executed Search Warrant E-10879 by serving same on Mrs. Harry Boots at 12:10 P.M. on September 28, 1979, at the farmhouse. Mrs. Boots indicated she did not know what went on in the garages and sheds and that they were used by appellant with her permission. When informed that the outbuildings were padlocked, she gave her permission to force the locks open as she had nothing to hide.

At about the same time that Chief Young was executing Warrant E-10879, Clyde R. Anderson, Deputy Sheriff of Beaver County was serving Warrant E-10880 on Mrs. Virginia Korn, at the mobile home.

Chief Young and other officers forced the padlocks on the garage doors open and conducted a search. Although the Hobart Welder was never found, a Fruehauf trailer, with a load of steel bars was found in one garage and a partially disassembled 1979 Mack tractor was found in another garage. The trailer and tractor were later identified as the items stolen from Zelienople, Butler County, and belonging to Mr. James M. Brown. Three tool boxes bearing the appellant’s initials were found in one of the garages as well. A GMC truck tractor, an attached trailer and a Budd trailer were found on the grounds outside a garage and they were identified as being stolen in North Sewickley Township, Beaver County. Appellant’s pick-up truck carrying miscellaneous parts removed from the stolen tractor trailer units was parked outside the mobile home. Later in the afternoon, the appellant made an incriminating statement, both orally and signed, whereby he admitted his role in the thefts.

When Deputy Sheriff Anderson, accompanied by two other officers, entered the mobile home, Virginia Korn was putting on a robe and appellant was putting on his pants. The officers found men’s and women’s clothing in the mobile home and also some guns which appellant claimed belonged to him. The officers also found a group of keys belonging to appellant and among these keys were keys which fit the padlocks on the garage doors wherein the stolen trailer and tractor were found. A stolen T.V. was also found in the mobile home but the serial number did not match the serial number on the warrant.

Appellant filed a timely omnibus pre-trial motion. The requested relief set forth in this motion asked the court to: (1) suppress appellant’s statement; (2) declare Search Warrant E-10879 invalid; and (3) quash the Information. Following a full hearing on January 22, 1980, appellant’s omnibus pre-trial motion was denied in its entirety. On January 23, 1980, after waiving his right to be tried by a jury, appellant was tried non-jury and was found guilty of the theft of Mr. Brown’s tractor and trailer as well as the load of steel bars.

Appellant filed timely post-trial motions in arrest of judgment and/or for a new trial which were denied by the trial court. He was then sentenced to a term of imprisonment of 372 to 7 years and ordered to pay restitution in the amount of $11,059.00.

Appellant then filed a timely motion to modify and/or vacate his sentence. The trial court denied the motion.

In his appeal to this court from the judgment of sentence imposed by the Honorable John C. Dillon of the Court of Common Pleas of Butler County, appellant raises five claims of error committed by the trial court. We shall discuss them seriatim.

I.

Appellant’s first claim of error is that the trial court erred in allowing the Commonwealth to amend the information and thus refusing his motion to quash.

The Criminal Information reads as follows:

INFORMATION
IN THE COURT OF COMMON PLEAS OF BUTLER COUNTY
PENNSYLVANIA
Criminal Division
Criminal Action, 1979 529 69 224
COMMONWEALTH OF PENNSYLVANIA v. CHARLES A. CASUCCIO
THE DISTRICT ATTORNEY OF BUTLER COUNTY by this information charges that on or about the 9th day of September, 1979, in Zelienople (Borough) the Defendant above named, in the County of Butler, did on or about said date at the Parking Lot of Dairy Kitchen, Rt. 19, Zelienople Borough, Butler County, Pennsylvania, unlawfully and wilfully remove a 1979 Mack Tractor, Serial # R686ST30926 Penna. Reg. Plate # CT82880, also attached a 1979 Fruehauf trailer, Serial No. FWV474070, Penna. Reg. Plate #TE76445, said trailer being loaded with 20 thousand pounds of steel bars, said tractor-trailer load and tools and equipment having a value of $77,-690.00, this being the property of James M. Brown of Box 21, R.D. # 2, Zelienople, Pennsylvania, 16063. all of which is against the Act of Assembly and the peace and dignity of the Commonwealth of Pennsylvania. Section 3921(a) of Crimes Code.
18 P.S. Sec. 3921(a) (Felony 3rd°)
Citation of Statute and Section
/s/ John H. Brydon
Attorney for the Commonwealth

Appellant says that the trial court erred in permitting the Commonwealth to amend the Information by adding the following words to the factual recitation:

“with intent to deprive the owner thereof.”

Pa.R.Crim.P. 229 provides that an information may be amended if

“there is a defect in form, the description of the offense, the description of any person or property, or the date charged, provided the information as amended does not charge an additional or difference offense.” (Emphasis added)

Appellant claims that the added language is an essential element of the crime with which he was charged and therefore the defect in its omission was a defect of substance and not a defect of form.

The requirements of an Information are set forth in Pa.R.Crim.P. 225, which states in pertinent part:

(b) The information ... shall be valid and sufficient in law if it contains:
(5) a plain and concise statement of the essential elements of the offense ... (Emphasis added)

Appellant was found guilty of theft by unlawful taking of movable property and that crime is described in 18 Pa.C. S.A. § 3921(a) as follows:

“A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." (Emphasis added)

Although a strict reading of Rule 229 would seemingly support appellant’s contention, the purpose behind the rule, as interpreted by prior case law, does not. As we stated in Commonwealth v. Stanley, Supra, 265 Pa.Superior Ct. at 212-13, 401 A.2d at 1179:

The purpose of Rule 229 is to insure that a defendant is fully appraised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. See Commonwealth v. Jones, 250 Pa.Super. 471, 378 A.2d 1245 (1977); Commonwealth v. King, 227 Pa.Super. 168, 323 A.2d 260 (1974). In effecting this purpose, the courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

The appellant knew that he was charged with unlawfully and wilfully removing a 1979 Mack tractor with a 1979 Fruehauf trailer attached, said trailer being loaded with 20,000 pounds of steel bars, being the property of James M. Brown, all of this having taken place on or about September 9, 1979, all of which he was informed, was against the Act of Assembly, Section 3921(a) of the Crimes Code and the peace and dignity of the Commonwealth of Pennsylvania. (See Information, supra) The amendment, which added the element “with intent to deprive the owner thereof” did not result in charging the appellant with an “additional or different offense.” Clearly, appellant knew what the charge against him was and he had not said how he was prejudiced by the amendment. Nor could he; because no prejudice existed. Further, this was not an amendment that was made during the trial or post-verdict; it was made before trial, during argument on appellant’s omnibus suppression motion. Had the suppression court granted the motion to quash, the Commonwealth could have filed another information connected with the addition of the element of “with intent to deprive the owner thereof.” We therefore find no error in the allowance of the amendment to the information.

II.

Appellant’s second claim of error is that the trial court erred in allowing the use of appellant’s incriminating prearraignment statement, since the time between his arrest and arraignment was greater than six (6) hours. As support for this proposition, appellant cites the decision of our Supreme Court in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) wherein the court held that unnecessary delay between defendant’s arrest and arraignment required suppression of any statement taken from the defendant prior to arraignment. The court adopted a per se rule that required the suppression of any pre-arraignment statement where the time between arrest and arraignment exceeded six (6) hours. Appellant was arraigned at 8:15 P.M. on September 18, 1979. Obviously our focus of inquiry must center upon the time of appellant’s arrest. Appellant says that he was under the control of the police from 12:10 P.M. when they entered the mobile home until his arraignment that same evening at 8:15 P.M. We do not agree.

An arrest may be effectuated by any act which indicates an intent to take an individual into custody and subject him to the control and will of the person making the arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); cert. denied Bosurgi v. Pennsylvania, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149, (1963); Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981). The test is an objective one, and must be viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized. Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974), Haggerty, supra.

We must apply these legal principles to the facts of this case. Here, appellant was not named in either warrant and although Mrs. Harry Boots told Chief Young that the garages were used by appellant, he was unknown to the police at that time; in fact, they had no knowledge that appellant was then in the mobile home. Deputy Sheriff Anderson who executed the search warrant at the mobile home knew that the female occupant was Mrs. Virginia Korn but did not learn of appellant’s identity until later in the day. He testified further that appellant was never placed under arrest by him and that in fact appellant was free to leave. (N.T. 91) Contrary to Mrs. Korn’s testimony that appellant was “escorted” whenever he used the bathroom, Anderson testified that appellant was not escorted but rather was followed and kept under close observation for the reason that guns had been found in the mobile home and he wanted to make sure that appellant did not attempt to hurt himself or somebody else. (N.T. 91, 92) Leonard Frieson, Special Agent, Federal Bureau of Investigation, was assigned to this “search party” to take pictures of the crime scene and to assist in any other way possible. (N.T. 70) He entered the mobile home at about 2:50 P.M. to take photographs of the T.V. set. (Id. 70). Frieson asked appellant if he would mind speaking to him and appellant indicated he would not. He began an oral interview with appellant at 2:50 P.M. (Id. 71) and after advising appellant of his Miranda rights and getting appellant to sign an advise of rights form, he concluded his oral interview with appellant at 3:35 P.M. (Id. at 72) Appellant then signed a written statement wherein he admitted, inter alia, stealing the Fruehauf trailer and Mack tractor from Zelienople Borough in Butler County. The written statement was signed at 3:55 P.M. (N.T. Suppression Hearing 37)

George Yaccich, Deputy Sheriff of Beaver County, placed the appellant under arrest at 4 P.M. Yaccich participated in the search of the garages which contained the 1979 Mack tractor and the 1979 Fruehauf trailer. He also found tool boxes in the garage where the 1979 Mack tractor was being disassembled and on the tool boxes there were engraved name plates with appellant’s name engraved thereon. He also observed that the Ford pick-up truck, which was parked outside the mobile home and which belonged to either appellant or appellant’s father, contained parts which belonged to the disassembled tractor and trailer. Further, he determined that among the keys found in the mobile home, there were some that opened the padlocks on the garage doors and he knew that Mrs. Boots stated that appellant had the keys to the padlocks on the garages. Yaccich also testified that when he went to the mobile home at around 4 P.M., the F.B.I. agents were not there. He did not know that appellant had given a statement, and in fact did not know the identity of the occupants of the trailer. When he was informed by Deputy Anderson of the identity of the occupants he told appellant what they had found in the garages and inquired whether appellant wanted to talk to them. Appellant indicated he did not and he was then read his rights and placed under arrest.

We are satisfied from a reading of the record that the officers who searched the mobile home did not know what was happening during the search of the garages and that the officers involved in the search of the garages did not know of appellant’s presence in the mobile home until some time after 3 P.M. We hold that on this record appellant was arrested, at the earliest, at 2:50 P.M., and since the arraignment was well within the time period mandated by Davenport, supra, the trial court did not err in refusing to suppress appellant’s inculpatory statement.

Significantly, in Commonwealth v. Horner, 497 Pa. 565, 442 A.2d 682 (1982), a case just recently decided on March 17, 1982, a majority of our Supreme Court found there was no custodial interrogation where the defendant and three others were transported from the crime scene to the Police Administration Building in a police van which was locked for safety. They entered the building through visitors’ doors and sat in witness waiting area; where one of the officers testified that none of the men were free to leave the building, they were nevertheless not in custody; when the officers testified that the area where the men were seated was a secured area and that individuals must be “buzzed” in and escorted out and where the testimony further indicated that only a supervisor could have authorized appellant to leave either the van or the waiting area. Justices Roberts and Nix in separate dissenting opinions concluded that the facts in Horner as above set forth constituted custodial interrogation, and substantial limitation on the freedom of action of the groups had been imposed by the police. Commonwealth v. Horner, supra, 497 Pa. at 578, 442 A.2d at 688. Clearly since the majority of our Supreme Court found that there was no custodial interrogation under the facts of Horner, supra, we would be hard pressed to agree with appellant here that he was under police restraint from 12:10 P.M. when they first entered the mobile home.

At this point we shall depart from our seriatim analysis of appellant’s claim of error and discuss his fourth claim as claim number three in this opinion. We do this for the reason that it is more logical to discuss appellant’s lack of probable cause argument first.

III.

Appellant argues that because of lack of probable cause for the essence of the search warrant E-10879, relating to the Hobart welder and “the truck said by Harry Boots to be stolen,” the fruits of the search should have been suppressed. We do not agree.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court of the United States reaffirmed the principle that an affidavit for a search warrant could be based on hearsay. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, (1949); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), 78 A.L.R.2d 233 (1960). However, the Aguilar court added two additional requirements to the affidavit based on hearsay information:

1. the affidavit must state sufficient underlying circumstances to permit a neutral and detached magistrate to understand how the informant reached his conclusion; and
2. the affidavit must state sufficient underlying circumstances establishing the reliability or credibility of the informant. Both halves of this two prong test must be met. Aguilar, id. 378 U.S. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729.

The issue then is whether the affidavit in Search Warrant E-10879 contained sufficient underlying facts to support the affiant’s assertion of his informant’s reliability.

Here the items to be searched and seized were “a Hobart Welder, Model W 24, Serial No. 12CW66257, powered by a Ford industrial engine with tow bar stolen from Yobe, Inc., at intersection of Rts. 288 and 65 in Franklin Township, on August 17, 1979 and truck said by Harry Boots to be stolen.”

The probable cause belief on the warrant was based on the following facts and circumstances:

Affiant received information on September 27, 1979, indicating that the informant had observed the above identified welder in an outbuilding of said residence on September 27, 1979. The affiant truly believes the information given him for the reason that the affiant [informant] has proven reliable in information given over a period of seven years. Information given to affiant from this informant has led to the conviction of twelve individuals and to the affiant’s personal knowledge the informant has supplied other police departments with information which has led to convictions on at least two prior occasions. (The application then lists three individuals convicted from information from this informant.) The informant was on the property and personally observed the above items.

A common sense reading of the affidavit supporting the search warrant clearly indicates that sufficient information was provided to the issuing magistrate to show the probability of illegal contraband, in the form of a Hobart Welder, at the place to be searched. Commonwealth v. Rambo, 250 Pa.Super. 314, 378 A.2d 953 (1977); reversed on other grounds Commonwealth v. Rambo, 488 Pa. 334, 412 A.2d 535 (1980). See Aguilar v. Texas, supra.

However, the portion of the affidavit authorizing the search for the Mack tractor and Fruehauf trailer was legally insufficient. Clearly the informant’s assertion to the affiant that there was “a truck said by Harry Boots to be stolen” on the premises to be searched constituted hearsay on hearsay. There is nothing in the warrant to indicate that the informant saw the truck on the premises although he did say he saw the Hobart Welder on the premises. All the informant knew about the truck was what Harry Boots told him. While we recognize that “double hearsay” is not always fatal to a showing of probable cause in an affidavit where other factors or indicia of reliability are present, we are satisfied that those other factors or indicia are not present here. See Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975). Here the real informant as to the truck was Harry Boots, and as to him neither prong of the two part test in Aguilar, supra, is satisfied.

Unfortunately for appellant, our inquiry does not stop here. Although a portion of the search warrant is, as we have said defective, it does not necessarily follow that the entire warrant is invalid or that the fruits of the search must be suppressed—here, the Mack tractor and the Fruehauf trailer.

In this case, with reference to the Hobart Welder, we have a search warrant which was issued on probable cause, which did particularly describe the premises to be searched and the item to be seized and which met the two prong test of Aguilar, supra. It would be totally unrealistic to invalidate the warrant in toto merely because the affiant and issuing authority erred in seeking and permitting a search for other items as well and we decline to do so. W. La Fave, 2 Search and Seizure, § 4.6(f) p. Ill (1978).

The leading case on this question of a warrant’s partial invalidity is Aday v. Supreme Court, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 (1961) where the warrant properly described two obscene books by name but improperly also described various other articles. The court held:

Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable from the authorization relating to the named books, which formed the principal basis of the charge of obscenity. The search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles. * * * In so holding we do not mean to suggest that invalid portions of a warrant will be treated as severable under all circumstances. We recognize the danger that warrants might be obtained which are essentially general in character but as to minor items meet the requirement of particularity, and that wholesale seizures might be made under them, in the expectation that the seizure would in any event be upheld as to the property specified. Such an abuse of the warrant procedure, of course, would not be tolerated. See also, United States v. Ketterman, 276 A.2d 243 (D.C.App.1971); Butler v. State, 130 Ga.App. 469, 203 S.E.2d 558 (1973); People v. Mangialino, 75 Misc.2d 698, 348 N.Y.S.2d 327 (1973).

Here the warrant was not essentially general in character; in fact, that portion of the warrant which we have upheld was prepared with particularity.

In Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979) we held that the “plain view” doctrine permits the seizure of items found while executing a valid warrant naming other objects. Obviously, the mere fact that the item was in plain view does not, ipso facto, justify the seizure. In order for evidence in plain view to be seized without a warrant, there must be prior valid intrusion, the discovery must be inadvertent, the evidence must be immediately apparent as such and the evidence must be in plain view. Collidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); C. Whitehead, Constitutional Criminal Procedure, Ch. 6 p. 90 (1978).

In the case before us, the police were lawfully on the premises, executing the challenged warrant. The informant had told the police that the day before the warrant was issued he had personally observed the stolen Hobart Welder on the premises described in the warrant. The police also had reason to rely on the informant’s information because his information had proven reliable over a period of seven years and had led to the conviction of twelve individuals, three of whom were actually named on the warrant. However, as to the Mack truck and Fruehauf trailer, which the police knew to have been stolen from Zelienople Borough in Butler County, it is clear from this record that they had no way of knowing that these items were to be found on the premises to be searched. We have already demonstrated that there were not sufficient grounds to justify the issuance of a warrant for “a truck said by Harry Boots to be stolen.” While the police were conducting a search for the Hobart Welder, which in fact was never found, they came upon the Fruehauf trailer in one of the buildings and in another building they found the partially disassembled Mack tractor. In the same building where they discovered the tractor, they also found tool boxes with engraved name plates bearing appellant’s name.

Although there is considerable difference of opinion as to the meaning of the “inadvertent discovery rule,” we agree with Professor LaFave that “if the inadvertent discovery limitation is to make any sense at all, ... it must at least mean that a discovery of objects not named in the search warrant is always inadvertent... if there were not sufficient grounds to justify the issuance of a warrant which also named those objects among the things to be seized.” La Fave, supra at 179 (emphasis in original).

This conclusion is consistent with the decision in United States v. Winston, 373 F.Supp. 1005, (ED Mich.1974). Agents obtained a search warrant for heroin and firearms. In the course of the search, but before the discovery of heroin, a rifle was found in a closet and was seized because the officers knew defendant to be a convicted felon. On the motion to suppress, it was determined that the part of the warrant authorizing a search for weapons was not supported by probable cause, as the informant had merely told the officers to expect to find guns on the premises. The defendant then objected that the alternative ground for seizure of the rifle, plain view, could not be relied upon here because discovery of the weapon was not inadvertent, but the court disagreed:

What Coolidge * * * requires is a search warrant for any items of evidence which the police anticipate finding, but for which they have probable cause to support the issuance of a search warrant. It goes without saying that Drug Enforcement Administration agents always anticipate firearms when they execute a search warrant on a suspected “dope pad.” This is not to say, however, that they have the requisite knowledge to support a search warrant for such items. In the present case, the police specifically knew, as the affidavit in support of the warrant indicates, only that an informant believed that the defendant possessed a sawed-off shotgun. As has been stated, this belief is not sufficient to support a search warrant, and thus it follows that the agents did not possess sufficient knowledge with respect to other firearms on the premises and could not have procured a search warrant for them. Furthermore, that the agents, at a briefing session prior to the execution of the warrant, discussed the possibility of the presence of firearms on the premises to be searched is no indication that when the agents came upon such weapons, it was not “inadvertently.” United States v. Winston, Supra, (Emphasis in original)

We hold therefore that in this case there was a prior valid intrusion by the police and that the discovery of the Mack tractor and Fruehauf trailer, which were in plain view and which were evidence of crime, was inadvertent.

IV.

Appellant’s third claim of error which we discuss here in part IV is that the search warrant was defective because the area to be searched was not under the control of the person named in the warrant and that Mrs. Boots had no authority to order the padlocks broken and the garages searched. We find no merit in this claim.

Appellant argues that since he had “control” of the garages wherein the tractor and trailer were found, and since the police knew this before they broke the padlocks on the garages, they were obligated to return to the issuing authority for new warrants. Our reading of the entire record reveals that at best, appellant was given the right to use the garage in return for his agreeing to help in the repair of trucks owned by Albert Boots, the son of Mrs. Harry Boots. It is also clear from the record that Albert Boots also had permission to use the garages. There is nothing in the record to suggest that this very informal arrangement between Mrs. Boots and appellant in any way deprived Mrs. Boots of at least joint control and use of the garages. Nor is there anything in this record to support a finding that Mrs. Boots knew appellant had padlocked the garages or had given him permission to padlock them. (See Appellant’s Brief, p. 20). Indeed, when Mrs. Boots was apprised of the facts set forth in the warrant and that the garage doors were padlocked, she unhesitatingly told the police to go ahead and force the locks open because she had nothing to hide.

We are satisfied that under the facts of this case Mrs. Boots never divested herself of control over the garages on her farm. Further, the police had every reason to believe that she, as the widow of Harry Boots, who was the owner of the farm according to the official Tax maps, possessed at least the apparent authority to authorize the breaking of the padlocks and the search of the garages:

... if it is otherwise true that under the Fourth Amendment the police are entitled to proceed upon the basis of the “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,” even if it results in a “mistake [which] was understandable and ... a reasonable response to the situation facing them at the time,” then it is likewise true that a reasonable mistake in determining a third party’s authority to consent does not give rise to an unreasonable search. La Fave, supra, § 8.3, p. 720.

We are not unmindful that the Fourth Amendment exclusionary rule rests upon a “police misconduct” rationale; that is, unlawfully seized evidence is excluded from trials in order to deter the police from engaging in unlawful conduct. But here the police applied for and received a Search Warrant which was based upon probable cause, which set forth with specificity the area to be searched and the items to be seized and which named the owner of the premises. Since the police acted responsibly, lawfully and free of misconduct, the deterrent effect of the “police-misconduct” rationale does not exist in this case.

Appellant’s argument that when the police learned that he had padlocked the garages and was given permission to use them by Mrs. Boots, the police should have returned to the issuing authority for new Search Warrants, can best be answered as follows:

When the police are engaged in the difficult and sometimes dangerous business of solving crime, actions which they take in a good faith attempt to do their job should not be reviewed by courts against a holier-than-thou standard of exceedingly technical complexity which the police officers cannot realistically be expected to administer. In other words, judicial determinations of the “reasonableness” of third party consent searches cannot properly ignore the circumstances of the search as they appeared to the police to the time the decision to search was made. Specifically, if the police obtain consent to search a house from someone who reasonably appears to them to be in control of the premises and in a position to authorize them to enter, it would be of little social utility for a court subsequently to rebuke the officers by excluding the evidence they obtained during the search on the ground that the person whose consent they accepted in good faith was the “general householder” rather than the “exclusive possessor.” Comment, 53 B.U.L. Review 1087, 1110 (1973) (Emphasis in original).

Clearly, if the Fourth Amendment does not preclude a warrantless search of property when consent is given by a person possessing the authority to consent to such search, it should not preclude a search made pursuant to a valid search warrant issued on probable cause following a consent given by the owner of the premises who had at least an equal right to the use or occupation of the premises searched. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1948); Commonwealth v. Latshaw, 481 Pa. 298, 392 A.2d 1301 (1978).

V.

Lastly, appellant asserts that the sentence of the court to a term of three and one half (3V2) years to seven (7) years was, under the circumstances of this case, harsh and excessive. We do not agree.

The imposition of a proper sentence is a matter vested in the sound discretion of the trial court. Commonwealth v. Ellison, 293 Pa.Super. 329, 439 A.2d 136 (1982). In order for a sentence to constitute an abuse of discretion, the sentence must either exceed statutory limits or be manifestly excessive. Commonwealth v. Aviles, 295 Pa.Super. 180, 441 A.2d 408 (1982); Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981). The sentencing judge shall follow the general principle that the sentence to be imposed should cause confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and on the rehabilitative needs of the defendant. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982). Sentencing Code, 42 Pa.C.S.A. § 9701, et seq. The sentencing judge must make as part of the record and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. Commonwealth v. Artis, 294 Pa.Super. 276, 439 A.2d 1199 (1982). Sentencing Code, 42 Pa.C.S.A. § 9721(b); Pa.R.Crim.P. 1405(b).

We have examined the entire record of the sentencing proceedings and find that the sentence imposed was within the statutory limits and that it was not manifestly excessive. Further, the sentencing judge considered a pre-sentence report, discussed probation as opposed to total confinement, considered appellant’s character and made specific reference to the provisions of the sentencing code. For these reasons we find that there was no abuse of the discretion so exercised.

Accordingly, judgment of sentence is affirmed.

      . Although we cannot tell from this record when Harry Boots died, it is clear that he died sometime after his conversation with the informant and before the search warrant was executed.

      . Since the rule governing amendment of an information is identical to the rule governing amendment of an indictment, cases interpreting one may be utilized in determining the extent of the other. Pa.R. Crim.P. 220, 229. See Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), affirmed Commonwealth v. Stanley, 498 Pa. 328, 446 A.2d 583 (1982).

      . This testimony was given at the suppression hearing on appellant’s omnibus pre-trial motion at N.T. 74. Mrs. Korn was not called as a witness during the trial.

      . The police knew that a Mack tractor and Fruehauf trailer had been stolen.. They were searching for a Hobart Welder used to effectuate the disassembly of vehicles and they discovered the tractor and trailer partially disassembled. Clearly the police had reason to believe that the evidence sought to be suppressed was of an incriminating nature.

      . We note that the police were in full compliance with all of the pertinent Pennsylvania Rules of Criminal Procedure relating to Search Warrants. Rule 2001, et seq.