author:
JOHNSON, Judge: BECK, Judge,
      TAMILIA, Judge,

text:
    615 A.2d 390
    Wendy M. MASTROMATTEO, Appellant, v. Ronald HARKINS.
    Superior Court of Pennsylvania.
    Argued May 1, 1992.
    Filed Oct. 21, 1992.

      Nina B. Shapiro, Lancaster, for appellant.
    Douglas H. Cody, Lancaster, for appellee.
    Before ROWLEY, President Judge, and WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   JOHNSON, Judge:

Wendy M. Mastromatteo appeals a December 6, 1989 order which vacated a jury verdict finding Ronald Harkins to be the father of Amber Lynn Mastromatteo. The trial court held that the introduction of DNA test results at trial was improper under the standard articulated by this Court in Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987). We hold that the Koleski standard does not apply in the present case and reverse the order of the trial court and remand for reinstatement of the jury’s verdict.

Before addressing the issues presented on appeal, a review of the procedural history of this case is necessary. In November, 1983, Mastromatteo filed an action against Harkins for the financial support and maintenance of her daughter. Harkins denied paternity. The parties and the child submitted to human leukocyte antigen (HLA) blood tests which indicated that the probability of paternity was 99.4%. Following a trial held before the Honorable D. Richard Eckman, the jury rendered its verdict in favor of Harkins. Mastromatteo filed a Motion for Post-Trial Relief requesting a new trial which was granted by the trial court on the ground that the jury had been instructed to apply the wrong standard of proof. Harkins did not appeal the grant of a new trial.

Prior to the second trial, Mastromatteo petitioned for DNA testing to determine paternity. See generally Note, DNA Fingerprinting: Evidence of the Future, 79 Ky.L.J. 415 (1990-91); Comment, Trial by Certainty, 39 Emory L.J. 309 (1990); Jeffreys, Wilson, Them, Hypervariable “Minisatellite” Regions in Human DNA 314 Nature 67 (1985). Harkins contested the petition and both parties filed briefs to support their positions. Mastromatteo filed a second petition for DNA testing, which the motions court subsequently granted, ordering the parties and the child to submit to DNA testing. The DNA test indicated that Harkins possessed all seventeen of the seventeen paternal bands that were found in the DNA of the child. The DNA test results indicated the probability that this result would have occurred by chance to be one in seventeen billion.

Before the second jury trial, Harkins contested the admissibility of the DNA test results. The trial court concluded that the test results were admissible. Following the second jury trial, a verdict was rendered against Harkins, finding paternity. Harkins filed a timely Motion for Post-Trial Relief requesting a new trial. Rather than granting the relief Harkins requested, the trial court vacated the jury’s verdict. Mastromatteo’s subsequent Motion for Reconsideration was denied and this appeal followed.

Before addressing the merits of this appeal, we must examine the standard of review utilized when a trial court merely vacates the jury verdict without granting a new trial. In this case, the jury rendered its verdict against Harkins. Harkins, through his post-trial motion, alleged an error of law, that the results of the DNA tests were improperly admitted at trial. Harkins then requested the proper relief from the trial court, the grant of a new trial. In our review of the record, we will determine if the introduction of the DNA test results constituted an error of law which properly should have supported the grant of a new trial. As the reviewing court in this case, we will impose a standard of review as if the trial court had granted the requested relief and we will determine if the grant of a new trial would be proper. While the grant of a new trial is within the sound discretion of the trial judge, that discretion is not absolute; an appellate court will review the action of the trial court and reverse if it determines that the trial court acted capriciously or palpably abused its discretion. Burrell v. Philadelphia Electric Company, 438 Pa. 286, 265 A.2d 516 (1970); Burton v. Boland, 339 Pa.Super. 444, 489 A.2d 243 (1985).

Mastromatteo contends that the DNA tests were properly admissible at trial and that the trial court abused its discretion in vacating the jury verdict. We agree.

The Pennsylvania legislature has empowered courts in paternity actions for support to order DNA tests under the provisions of 23 Pa.C.S. § 4343(c)(1) and (c)(2):

(c) Genetic tests.—
(1) Upon the request of any party to an action to establish paternity, the court shall require the child and the parties to submit to genetic tests.
(2) Genetic test results shall be considered prima facie evidence of paternity.

This statute, on its face, requires that a court order the child and the parties in a paternity action to submit to genetic testing if any party requests such testing. Here, Mastromatteo requested genetic testing, in the form of DNA tests, from the motions court prior to the second trial. Under 23 Pa.C.S. § 4343, the motions court properly granted Mastromatteo’s request.

The trial court, however, stated that the admission of the DNA test results was prohibited under Koleski v. Park, supra, because Harkins’ Fourth Amendment and due process rights had been violated. Trial court opinion at 5-7. We determine that the trial court erred in its finding that the DNA test results were inadmissible; we also determine that Koleski does not apply in the present case.

In Koleski, an appeal was taken from an order for a mother and child to submit to a second HLA test after a first HLA test had excluded the person claiming paternity as the father of the child. In that case, we interpreted 23 Pa.C.S. § 5104 and whether it permitted the drawing of duplicate blood tests.

23 Pa.C.S. § 5104 states in pertinent part:

(c) Authority for the test. — In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.

In Koleski, we were unable to discern clear authority under Pa.C.S. § 5104 for performing duplicate blood tests. There, recognizing the Fourth Amendment implications in the extraction of blood, we stated that due to the potential for harassment inherent in paternity proceedings, before the mother could be ordered to submit to a duplicate blood test, the proponent of further testing must indicate that the first test was defective and that further testing was needed for an accurate determination of paternity. Koleski, supra, 363 Pa.Super. at 31, 525 A.2d at 408. We also concluded that in order to satisfy due process requirements, the determination of the need for further testing should be made at a hearing at which expert testimony would be introduced. Koleski, supra, 363 Pa.Super. at 32, 525 A.2d at 409.

Our holding in Koleski is inapplicable in the present case. Here, Mastromatteo relied on the HLA test during the first trial as the result indicated with a 99.4% probability that Harkins was the father. While this result was highly probative evidence that Harkins was the father of the child, it was not dispositive or definite proof of paternity. See Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986); Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983). Upon the grant of a new trial, Mastromatteo sought to introduce additional evidence of paternity, in the form of DNA tests, that could more accurately identify Harkins at the father of her child. See Comment, DNA Identification Tests and the Courts, 63 Wash.L.Rev. 903, 948 (1988). The evidence presented by DNA testing was not cumulative or duplicative of the HLA test results which were also introduced during the second trial. Testimony at the second trial indicated that the DNA tests, which had yet to be developed at the time of the first trial, excluded the world’s population, other than Harkins, from the probability of paternity. See N.T., at 116.

The DNA test cannot be construed as a second test measuring the same information available through the HLA test results. Rather, we consider the request for DNA testing as a request for the production of new information relevant to the determination of paternity. As such, the blood extraction for DNA tests in this case is not controlled by our holding in Koleski.

We find that the public policy concerns we addressed in Koleski were not present here. Rather than serving to harass Harkins, all parties and the interest of justice would be served by allowing the most accurate method of paternity testing to be performed on the parties in this case.

We also recognize that the extraction of blood may implicate the Fourth Amendment right to be free of unreasonable searches and seizures. The trial court found that the drawing of blood to perform the DNA tests violated Harkins Fourth Amendment rights. Trial Court Opinion at 7-8. The Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances or which are made in an improper manner. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Accord Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988). A court must balance the interests at stake to determine whether the invasion caused by the extraction of blood is justified. John M. v. Paula T., 524 Pa. 306, 316, 571 A.2d 1380, 1385 (1990) cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). The right of the individual to be free from the burden of a blood extraction must be balanced against the entitlement of children to know and be supported, financially and emotionally» by their fathers. Harkins’ right to bodily integrity must also be balanced against the right and interest of the general population to have fathers share in the financial support of their children rather than have society bear that portion of the parental burden. In this case, we do not have the benefit of the reasoning of the motions court which ordered the DNA testing. However, we find in the application of this balancing test that the right to have the most definitive determination of paternity available to all parties in this case outweighs the minimal intrusion necessary to accomplish this task.

The trial court also found, relying on our decision in Koleski, that Harkins’ Fourteenth Amendment rights to procedural due process had been violated in that no hearing was held prior to the order for DNA testing. We hold that the trial court erred in this finding.

In Koleski, we found that since there must be a determination of a defect in the results of the first HLA test before a second HLA test could be ordered, a hearing must be held at which experts could testify to the accuracy of the initial test. In this case, there is no need to find that the HLA test is defective prior to ordering DNA testing. Due Process is a flexible notion which calls for such procedural safeguards as a particular situation demands to ensure fundamental fairness to a potentially aggrieved litigant. Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court directed that three factors must be considered when a court determines if the process given to a party was constitutionally infirm. Those factors are: the private interests at stake; the risk that the process given will result in erroneous deprivation of that interest; the government interest, including the fiscal and administrative burden entailed in the substitute procedure. Id.

In this case, the private interests include Harkins’ right not to have the bodily intrusion involved in the extraction of blood and the rights of all parties to the most accurate paternity determination of the child in question. The second interest at stake is the risk that Harkins would be unable to have notice of, or properly contest, the extraction of blood for the DNA test without a formal hearing. The Commonwealth’s interest in this procedure is that determinations of paternity proceed smoothly without undue delay. The Commonwealth also has a fiscal interest in avoiding unnecessary court proceedings at which expert testimony must be introduced, if a fair and just determination of an issue can be made without such a procedure.

In this case, the motions court and all parties had notice and an opportunity to express legal and factual argument on the issue of DNA testing. The parties had a chance to respond to one another in their briefs and before the motions court. Both parties were present in motions court with an opportunity to be heard on this issue prior to the court issuing the order for the DNA tests. On the record before us we are not persuaded that Harkins suffered an erroneous deprivation of his rights to procedural due process through the procedure utilized in the present case. The Commonwealth’s interests in judicial and financial economy were served by having this determination made through the motions court without the need to convene a special judicial session to take testimony on this issue. In this case, unlike Koleski, there was no need to determine that the first HLA test was defective, since the DNA test was not to replace the HLA test but to provide an additional, more accurate, determination of paternity.

After a review of the record, we are satisfied that the process given here was sufficient and that Harkins suffered no violation of his right to procedural due process.

We find that the motions court, after affording all parties the right to be heard, properly ordered the DNA tests to be performed. We also hold, after balancing the interests at stake and finding no constitutional violation, that the DNA tests were relevant and probative evidence and, as such, the DNA tests were admissible under the statutory authority of both 23 Pa.C.S. § 4343 and § 5104. Accordingly, we hold that the trial court abused its discretion in vacating the jury’s verdict. We, therefore, reverse the order of the trial court and remand for reinstatement of the jury’s verdict.

Order vacated and remanded for reinstatement of the jury’s verdict.

BECK, J., joins and files a concurring opinion.

TAMILIA, J., files a dissenting opinion.

BECK, Judge,

concurring.

The majority’s analysis and disposition of this matter are clearly correct and I join therein.

I write separately simply to underscore the distinctions between the issue posed here and that posed in Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), a decision that I authored.

In Koleski, we considered the constitutional implications of ordering a party to a paternity action to undergo a duplicate blood test. We concluded that in such a situation, the party whose blood was sought to be extracted a second time for the performance of the selfsame test had the right to a determination that the initial test was defective. We also held that this determination was to be made at a hearing at which expert testimony relative to the alleged defective test was presented. Id., 363 Pa.Super. at 28-34, 525 A.2d at 408-10. We reached these conclusions after consideration of the protections afforded by the Fourth Amendment and the Due Process Clause of the United States Constitution. In analyzing these protections, we balanced the interests of all parties and the Commonwealth in an accurate paternity determination against the bodily integrity of the person whose blood was sought and the possibility of harassment through demands for duplicate blood tests.

In contrast, in the case sub judice we are not reviewing an order requiring a duplicate blood test. Rather, the issue here is whether a second blood extraction should have been ordered to permit the performance of a new and completely different genetic paternity test which, because of its high degree of accuracy, would substantially aid in the determination of paternity. Under these very different facts, our analysis logically must differ from that pursued in Koleski. As the majority notes, we have here no hint of harassment. Rather, we perceive only that the request for genetic testing resulted from the desire to amass new and highly reliable scientific evidence of paternity to be used at the retrial of this matter. Clearly, the interests of all concerned in an accurate paternity determination is well served by permitting such evidence to be obtained and admitted at the second trial.

Moreover, the Due Process analysis pursued in Koleski is simply inapposite to this matter. In Koleski, we required a hearing at which expert testimony would be presented prior to an order requiring a second blood test. We required a hearing and expert testimony because we found that such was necessary for the accurate resolution of the central factual issue, i.e. defect in the first test. Here, on the other hand, no such finding need be made since the request for genetic testing in no way depends upon an alleged defect in the first test. In the circumstances of this case, the due process afforded the parties through the process of briefing and argument on the legal question of whether the genetic testing was to be allowed was clearly sufficient.

Therefore, I join in the majority’s determination that the trial court should be reversed.

TAMILIA, Judge,

dissenting.

I respectfully dissent as I believe the majority has misconstrued the effect of the Uniform Blood Test Act’s, 23 Pa.C.S. § 5104, limitation on retesting and has, by implication, overruled Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), which stated the correct legal standard. The fact that a new trial was granted cannot be construed to mean that a second blood test was permissible when the validity of the first test was never questioned. The majority, in a purely subjective finding, does not construe the second test to be harassment despite the fact that without procedural or technical error in the first test, it would permit a second test to take advantage of a more definitive scientific measurement.

When application of statutes result in a conflict between them, the Statutory Construction Act, 1 Pa.C.S. § 1932, Statutes in pari materia, requires that they be read in such a manner, if possible, to eliminate any conflict. The introduction of genetic testing, pursuant to 23 Pa.C.S. § 4343, Paternity (as amended 1989, Dec. 20, P.L. 654, No. 81, § 1, immd. effective) did not overrule or make inoperative the Uniform Blood Test Act. Indeed, as both laws are contained in the Domestic Relations Code, it is irrational to determine that the taking of blood (as opposed to the testing itself) was subject to limitations under one procedure but not under the other.

In what appears to be revisionist action, the majority strongly attempts to disregard the unequivocal language of Koleski, which is founded on constitutional provisions to prevent harassment, and to go around it by not overruling it. Koleski must either be overruled or it must be followed. Koleski makes no distinction between the various tests utilized in determining the issue of paternity, whether it be A-B-O, M-N, Rh-Hr blood groupings, HLA, human leukocyte antigen, or DNA, the genetic test. The issue is not whether new evidence would be available by a different test but whether multiple testing is permissible under any circumstances unless the initial testing was in some form technically defective and this was determined in a fact finding hearing by the court. The fact that one test as opposed to another will be more probative of paternity has nothing to do with the right of the state to impose two or more blood tests on a defendant when the original blood test was not proven to be defective. The use of the HLA test results in the retrial, with proper jury instructions, would most likely have achieved the same results as the more definitive genetic DNA test. To permit the second test and to admit its results just because it was more certain simply means that this Court accepts an invasive procedure which violates due process as detailed in Koleski because it approves of the result.

No area of domestic relations has been met with greater scrutiny than paternity proceedings. While in the foreseeable future DNA testing holds the promise of certainty in paternity disputes, there are still sufficient questions to be resolved concerning the indexing of DNA paternity probabilities to make premature the more extravagant claims.

In an article titled D.N.A Paternity Probabilities by D.H. Kaye, Family Law Quarterly, Vol. 24, 1991, the author states:

Some of the advertising literature of companies marketing DNA tests or products endorses this notion that the results are “conclusive,” with a “[t]hirty-billion-to-one accuracy.”
These are heady claims that can be expected to impress attorneys and courts. “Conclusive” proof would spare courts and attorneys the agony of probabilities and other numbers associated with conventional genetic testing for paternity, and it would expeditiously resolve much contentious litigation over child support, inheritance, immigration and sexual assault. However, the field of scientific evidence is littered with the deflated hopes and assurances of would-be fingerprinters. Surely, in any particular case, the genetic evidence might amount to something less than conclusive proof either because the laboratory personnel have not found what they think they’ve found, or because the findings, while accurate enough, do not justify the inference of paternity with certainty.

Id. at 281.

After pursuing an extremely technical analysis of the procedures and scientific and statistical data that are involved in DNA testing, the author concludes:

Claims in the popular press and a few court opinions that DNA “fingerprints” constitute evidence of identity in paternity and other cases pose a danger of misunderstanding. DNA typing is not a single procedure that yields equally revealing results in all paternity cases. There are a variety of methods already in routine use, and the application of other techniques can be anticipated. Some methods entail a greater chance of error in the “typing” than others, while the “types” found in some forms of analysis are more probative. Thus, within the forensic armamentarium of DNA tests are methods that can give rise to immensely powerful evidence for or against paternity as well as methods that can yield less impressive, but still helpful, results.

Id. at 303.

Even the legislative determination in 23 Pa.C.S. § 4343, “(c) Genetic tests____ 2) Genetic test results shall be considered prima facie evidence of paternity ...” is subject to qualification based upon the reliability of the results in accordance with the techniques used. Within the past year, there was serious question of the reliability of DNA testing in sexual assault cases, which called into question the sufficiency of the evidence used to convict numerous people throughout the country. We cannot justify the result in permitting the introduction of the test in this case, because its result was statistically so certain, even if it is in the interest of the public and the individuals involved to have this certainty. As indicated above, there is still scientific question as to the validity of those results. Above all, we cannot ignore the holding in Koleski, which unequivocally prevents retesting unless there was a defect in the procedure, simply to allow another test which produces a more certain result. The language in Koleski allows for no interpretation or distinguishment such as propounded by the majority. Judge Beck’s attempt to reinterpret Koleski in light of the facts in this case is totally unacceptable because, while she authored the Opinion, she cannot speak for Judges Hester and Roberts who joined in that Opinion. It is inconceivable that she would now be able to say what would have been that panels decision if they had before them the facts in this case as well as the facts in Koleski to consider. To make such a retroactive revision undermines the integrity of our Opinions and turns them into conjectures rather than guides to the Bench and Bar.

In Koleski, Judge Beck, speaking for the majority, stated:

In sum, we reiterate our belief, first expression in Corra v. Coll, 305 Pa.Super. 179, 193-194, 451 A.2d 480, 488 (1982), that “[t]here is no situation of more monumental importance, or more worthy of due process protection, than the creation of a parent-child relationship.” We find that a hearing is the best forum for making the showing that the first blood tests were inaccurate. Requiring this showing before a second blood extraction will be ordered protects the parties’ Fourth Amendment rights and restricts the potential for harassment, but does not prevent a party from obtaining further blood testing where necessary to an accurate determination of paternity.

Id., 363 Pa.Super. at 33, 525 A.2d at 410.

Judge Perezous was following the precise mandate of Koleski in refusing to admit the second blood test. Nothing the majority has written convinces me that he was wrong and there is justification for permitting a second blood test. A new trial is not a basis for requiring a second test without a hearing or showing that the first test was defective because it involves the same parties, the same issues and the same blood withdrawal. I would affirm on the excellent Opinion of the trial court.

      . In a dissent joined by no other member of this panel, Judge Tamilia attacks this author's concurrence. He states that the author does not know and cannot know how the members of the Koleski panel would have voted in the instant case. He then concludes that this fact somehow renders this author's view on the subject of the proper interpretation of Koleski inaccurate. He further accuses this writer of undermining the integrity of the opinions of this court.
      The dissent’s observations and reasoning are facially specious. First, this concurrence states the view of the author hereof and does not even purport to be a statement of the view of anyone else. Even the most cursory reading of this concurrence makes this fact obvious. Second, the analysis of Koleski and its proper application to the case at bar that is set forth in this concurrence is a logical and honest statement of this writer’s view and is agreed to by all members of the en banc panel with the exception of Judge Tamilia. It in no way undermines the integrity of this court’s opinions and, in fact, is completely consistent both with this court’s prior opinions and with the majority opinion in this very case.


source: Caselaw Access Project

author: POPOVICH, Judge: WIEAND, Justice,

license: Public Domain

text:
    615 A.2d 398
    COMMONWEALTH of Pennsylvania, Appellee, v. Maria AVILES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1992.
    Filed Oct. 22, 1992.

      Peter C. Bowers, Philadelphia, for appellant.
    George S. Leone, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   POPOVICH, Judge:

This case has been granted en banc consideration to assess a challenge to the judgment of sentence imposed following a bench trial and conviction for various drug offenses. We affirm.

The sole issue concerns the sufficiency of the evidence to sustain Maria Aviles’ convictions. To assess such a claim, one looks to a time-honored test oft-stated in this jurisdiction; to-wit:

... in determining if the evidence was sufficient to sustain the conviction, the test is, whether accepting as true all of the evidence (be it direct or circumstantial) and all reasonable inferences arising therefrom, upon which the jury, or the trial court in a nonjury trial, could properly have reached its verdict, is it sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime of which [s/]he has been convicted.

Commonwealth v. Wrona, 442 Pa. 201, 204, 275 A.2d 78, 79-80 (1971). Accord Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Thornton, 494 Pa. 164, 430 A.2d 1168 (1981); Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979); Commonwealth v. Williams, 447 Pa. 206, 290 A.2d 111 (1972); Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963). Of course, the record in the instant appeal must be considered and read in the light most favorable to the Commonwealth. E.g., Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971).

So viewed, the evidence reveals that at 7:30 p.m. on the 23rd of January, 1989, Police Officer Daniel McEwen, in the company of five other officers, arrived at 181 West Wishart Street, Philadelphia, to execute a search warrant obtained on the strength of a first-time informant’s account of drug activity and follow-up surveillances by Officer McEwen.

Once at the site, Officer McEwen knocked on the front door and announced, “Police”. Ms. Aviles opened the door and was informed that the police were requesting entry into the house. Consent was given. All those present were advised to remain calm and that the police had a search warrant. At this time, Ms. Aviles addressed Officer McEwen: “She said don’t talk to anyone else, talk to me. This is my place.”

A team of officers conducted a search of the premises. Within 10 minutes of their arrival, Officer McEwen was called to the second floor, rear bedroom and Officer Tames pointed to an open dresser drawer containing a brown metal box. The box was found to contain: Officer Tames stated that the door to the rear bedroom was open and he “did not break any lock”. With regard to the metal box, Officer Tames testified:

a) 54 plastic packets, each containing a white powder and sealed with gold tape;
b) 3 different sized sandwich baggies containing a white powder;
c) 7 clear plastic packets sealed with orange tape;
d) a small glass bottle containing a white powder; and
e) 3 black and green grinders and a screen, all of which contained a white residue.
... when I got the box out of the drawer ... it was closed and I just pulled this [latch] up like that and opened it. * * * I didn’t pry it open. I just opened it.

Then, Officer McEwen proceeded to the second bedroom, which was the middle bedroom on the same floor. There McEwen observed Sergeant Perez “on his hands and knees removing floor boards ... from the eastern-most wall of that room.” Retrieved from under the floor was an “open toolbox” containing $10,538 in cash. McEwen also found a second box in the middle bedroom which contained:

a) 1 scale with 5 weights marked 50, 20, 20, 10 & 5 grams;
b) Electronic heat-sealer (10" x 10") with a plug;
c) 2 strainers (10" & 5" in diameter);
d) Screen;
e) Hundreds of empty, clear plastic packets; and
f) 12 rolls of gold tape.

Sergeant Perez was the first officer to enter the middle bedroom, and, in respect thereto, he stated that he did not have to force the door open to get in: “The door [he] went into, to get into the room, [he] didn’t break.”

The police found proof that Aviles resided at the stated address. Likewise, Ms. Aviles admitted being the lessee and that, for approximately 5 years prior to the search, she had rented the rear and middle bedrooms for $35 a week to supplement her receipt of $474 a month from the Department of Public Welfare. She and her 3 children slept on the second floor, front bedroom next to the middle and rear bedrooms.

Ms. Aviles testified that the rear and middle bedrooms had been rented to her sister (Zoraida) and brother-in-law (nicknamed “Flea”) from the beginning of December, 1988 until the police arrived. She denied having any knowledge of the drugs, the location of the drug paraphernalia or the sawed-out floor-compartment wherein the money was hidden.

It was Jorge’s belief that the sawed-out floor-boards in the middle bedroom had been perpetrated by the police during their search since, he claimed, no such opening existed prior thereto. This was confirmed by Aviles’ sister (Gladys), who rented the same two bedrooms from 1987 until 1988 and noticed no floor boards having been sawed through and used as a storage area. On the other hand, the police testified to the contrary: McEwen “didn’t observe any sawdust or fresh type markings [in the floor boards]. They appeared to be well worn[, i.e., he] wouldn’t say it was recently cut.”

Lastly, Aviles testified that locks were placed on the doors to the rear and middle bedrooms by her sister immediately upon renting the rooms; she denied having any keys to the locks; she denied selling drugs; and she did not know about the metal boxes or the hole in the floor in the middle bedroom or its contents. The trial court, after hearing from both sides, found Ms. Aviles guilty as charged and revoked her bail.

Post-trial motions were filed, denied and sentence was imposed. On an initial appeal to this Court, a panel majority (with Cavanaugh, J. dissenting) reversed the judgment of sentence and discharged Ms. Aviles. However, on petition of the Commonwealth, this Court granted en banc certification to determine whether the Commonwealth established, beyond a reasonable doubt, Aviles’ guilt for knowingly or intentionally possessing a controlled substance, possession with intent to manufacture or deliver a controlled substance and possession of drug paraphernalia. See 35 P.S. § 780-113(a)(16), (30) & (32) (Supp.1992).

The standard of review having been articulated earlier, it will not be repeated here, except we add to the appellate-review-equation the reliance upon “constructive possession” as a vehicle by which to prove Ms. Aviles’ knowing or intentional possession of cocaine and drug paraphernalia. Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986). Since the cocaine and drug paraphernalia were not found on Ms. Aviles’ person, she was properly convicted only if the Commonwealth proved joint constructive possession. See Commonwealth v. Griffin, 230 Pa.Super. 425, 326 A.2d 554 (1974).

Our Supreme Court has stated on this subject that:

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforce ment. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as “conscious dominion.” Commonwealth v. Davis, 444 Pa. 11, 115, 280 A.2d 119, 121 (1971). We subsequently defined “conscious dominion” as “the power to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Though these tests may be helpful and logical in the abstract, application to actual factual situations, particularly when multiple actors are involved, has proven difficult for our ... courts in cases involving controlled substances located on premises in joint possession but not on the actual person of any of the parties entitled to occupy those premises.
To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). We took a further step toward resolving these problems in Commonwealth v. Macolino, supra. In Macolino, contraband and otherwise legal items used in the drug trade were found in the common bedroom of the Macolinos, a married couple. We held that “constructive possession can be found in one defendant when both the husband and wife have equal access to an area where the illegal substance or contraband is found.” 503 Pa. at 208, 469 A.2d at 135. See also Commonwealth v. Carroll, [510] Pa. [299], 507 A.2d 819 (1986).
... We hold today that even absent a marital relationship constructive possession may be found in either of both actors if contraband is found in an area of joint control and equal access. * * * [In] the Macolino analysis!,] shared access to and control of the area where the contraband was found was critical.

Mudrick, supra, 510 Pa. at 308-09, 507 A.2d at 1213-14 (Emphasis added). Accord Commonwealth v. Grekis, 411 Pa.Super. 494, 601 A.2d 1275 (1992); Commonwealth v. Parsons, 391 Pa.Super. 273, 570 A.2d 1328 (1990); Commonwealth v. Santiesteban, 381 Pa.Super. 18, 552 A.2d 1072 (1988); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984).

The trial court concluded, in denying post-trial motions, that “Maria Aviles was the lessee at the subject premises and she had access to all the bedrooms, none of which were locked.” Trial Court Opinion at 3. The evidence is consistent with such conclusions. Specifically, Ms. Aviles admitted that she was the lessee at 812 West Wishart, that she had subleased 2 of the 3 upstairs bedrooms for the past 5 years for a fixed dollar amount, and that the most recent sub-lessees were her sister and brother-in-law.

The trial court also concluded that Ms. Aviles had “access to all the bedrooms”. In none of the testimony reviewed by this Court was there a reference by either Ms. Aviles or her witnesses that she was denied access to the rear and middle bedrooms. Albeit Ms. Aviles stated that her sister and brother-in-law affixed “locks” to the rented bedrooms, and Aviles’ son testified that there were “locks” on the two rooms thereafter, the account of the officers was to the contrary. This created a disputed issue of fact.

Since the trial court, as the trier-of-fact, had the prerogative to believe all, some or none of the testimony proffered, the verdict rendered in this case reflects the trial court’s acceptance of the officers’ version of the physical condition of the residence and the 2 bedrooms housing Zoraida, “Flea” and their children. Accordingly, such determinations, being buttressed by the record, we are not at liberty to usurp the trial court’s roles as credibility-assesser and arbiter-of-fact or substitute our (different) conclusions on matters within its bailiwick. Contrast Helms, supra.

Continuing, the principles enunciated in Mudrick, supra, are equally applicable to aid us in determining whether joint constructive possession (power to control and intent to control) has been proven by the Commonwealth.

Initially, we set forth some guideposts to assist us in our endeavor. First, in constructive possession cases involving drugs, all facts and circumstances surrounding the possession of drugs are relevant in determining whether contraband was possessed with the requisite intent to deliver or manufacture. See Davis, supra. Second, in conjunction with the quantity of drugs possessed, the courts have considered the presence of paraphernalia used in the narcotics trade as well as the presence of inordinately large sums of cash in ferreting out the element of intent. See Helms, supra, citing Commonwealth v. Fisher, 316 Pa.Super. 311, 462 A.2d 1366 (1983); Commonwealth v. Bundridge, 303 Pa.Super. 267, 449 A.2d 681 (1982); Commonwealth v. Smith, 250 Pa.Super. 460, 378 A.2d 1239 (1977). Finally, albeit not dispositive, a defendant’s presence at the location where drugs are discovered is a factor in establishing knowledge that contraband is present and his/her exercise of dominion and control over the same. See Parsons, supra, citing Commonwealth v. Harris, 263 Pa.Super. 110, 397 A.2d 424 (1979).

In evaluating proof of joint constructive possession, one must be cognizant of the “realities” of criminal law enforcement and the “totality of circumstances” before one may be allowed to “infer” from a set of facts that possession of contraband “was more likely than not” properly assignable to a defendant.

Instantly, viewing the evidence in a light most favorable to the verdict-winner, we find it reasonable to conclude that Ms. Aviles was the lessee of the premises in which a large amount of cash, drugs and drug paraphernalia were found; the day preceding the search, an informant had witnessed the receipt of large quantities of cocaine from drug dealers on two separate occasions at Aviles’ residence; on the same day, the informant heard Aviles’ sister and brother-in-law advise suppliers that processing the drugs would not be complete until the following day because they were “backed up”; the informant witnessed a brick of cocaine being cut, weighed and individually packaged “on [the] kitchen table”; no more than an hour-and-a-half after the informant’s viewing and communication of the same to the police, a surveillance of the premises disclosed 3 occasions in which unknown Hispanic males walked into the premises in question with small packages and exited within a “few seconds without those packages”; a surveillance of the premises 3 hours prior to the warranted search produced 2 additional observations of similar activity as that which transpired the day before; Ms. Aviles was on the premises when the search was conducted; and, the 2 second-floor bedrooms in which money, drugs and drug paraphernalia were found were situated next to Ms. Aviles’ sleeping quarters and were accessible to anyone wishing to enter while in the residence.

From the evidence presented to the factfinder, when viewed under the totality of the circumstances and drawing all reasonable inferences therefrom bounded only by the “realities” of drug activity and its attendant variables, we find that Ms. Aviles had joint control over and equal access to areas where cocaine, drug paraphernalia and money were found — the rear and middle bedrooms.

The factfinder could properly find that Ms. Aviles and her sub-lessees not only had control and access to all the bedrooms but the whole residence. Thus, analyzing all the circumstances, the trial court could infer Ms. Aviles’ constructive possession of the cocaine, drug paraphernalia and money which were openly accessible to her in the rear and middle bedrooms.

We find the evidence, and the reasonable inferences to be drawn therefrom, to be supportive of the verdicts. Therefore, we affirm the judgment of sentence issued by the Philadelphia County Court of Common Pleas.

WIEAND, J., files a dissenting Opinion in which President Judge ROWLEY, and MONTEMURO and FORD ELLIOTT, JJ., join.

WIEAND, Justice,

dissenting:

A majority of this Court, by its holding in this case, has made it possible to convict parents and rooming house owners of possession of controlled substances which have been concealed by a child or roomer in his or her bedroom even though the parent or owner has no knowledge of the presence of the controlled substance. I dissent. The doctrine of constructive possession should not be expanded to make possible the conviction of persons who merely happen to be living in the same residence where drugs are found.

On January 23, 1989, police obtained a warrant to search a two story row house located at 181 West Wishart Street, Philadelphia. The warrant was issued upon information obtained from a confidential informant that drug related activities were being conducted at that address by persons named “Zoraida” and “Flea.” The affidavit recited also that police, on five separate occasions, had observed the delivery of small packages to the Wishart Street home by unidentified, Hispanic males. When police arrived to execute the warrant, they were admitted by appellant, who told police that the house was hers. Also present at the time of the search, according to police testimony, were a Hispanic male in his mid-twenties, an elderly Hispanic male, a juvenile Hispanic male approximately seventeen years of age and several small children. During the search, police found in the rear bedroom on the second floor a metal box containing a large quantity of cocaine and items of drug paraphernalia. This box was found in a dresser drawer which also contained children’s clothing. In the middle bedroom on the second floor, police discovered a tool box containing more than ten thousand ($10,000.00) dollars in cash. The box had been hidden under loose floorboards. Also found in the middle bedroom was a second tool box containing numerous items of drug paraphernalia.

The uncontradicted testimony was that the middle and rear bedrooms had been sublet by appellant to her sister and brother-in-law, who were the persons named “Zoraida” and “Flea” in the affidavit for the search warrant. The testimony was that “Zoraida” and “Flea” had been renting these two bedrooms from appellant continuously after December, 1988, and had occupied the same with their children. The trial court expressly accepted this testimony and found as a fact that the two rooms had been occupied by appellant’s sister and brother-in-law.

Despite these facts, the trial court found appellant guilty. It did so, as it stated in its opinion, because appellant was the primary tenant, because she was present at the time of the search, because the rooms in which the drugs were found were unlocked and because the persons suspected of drug activities were her relatives. The trial court’s reasoning, more specifically, was as follows:

In the non-jury trial of Maria Aviles, this Court learned that the defendant admitted possession and control of the premises, and that she was the only resident adult present when the house was searched that evening. While the defendant herself did not sleep in either of the rooms containing the contraband, it is also true that neither of those rooms was locked on the date of the search. In addition, the persons allegedly wanted by the police for previous drug sales, Zoraida and Flea, were relatives of defendant, as well as her tenants. Evidence adduced at trial showed that suspicious drug activity was observed at the premises by police in the days immediately prior to obtaining the search warrant.
The cases cited by defendant in support of her position are all fact-specific, and thus not controlling in the case at bar. Maria Aviles was the lessee at the subject premises and she had access to all the bedrooms, none of which were locked. She permitted others to live in the house, and they happened to be her sister and brother-in-law. Ms. Aviles, therefore, must be presumed to be aware of the activities engaged in by her relatives/tenants when various males would visit the home for brief periods of time to make transactions. She must also be presumed to have known why floor boards were removed and then replaced after large sums of cash were hidden under the floor of the middle bedroom, right next to that of the defendant.

My own review of the record discloses no evidence whatsoever that the drugs found in the two subleased bedrooms belonged to appellant or even that she was aware of their presence. The drugs were not found in the living boom or any other common area of the house, nor was there evidence to establish that appellant slept in, stored property in, or otherwise shared access to the two bedrooms in which the contraband was found. On the contrary, the uncontradicted testimony was that the two bedrooms in which the drugs, money and paraphernalia were found had been occupied by appellant’s sister and brother-in-law. The contraband, moreover, was not in plain view where it could have been observed by the primary tenant but was concealed in a dresser drawer and beneath a floorboard in the subtenant’s quarters.

The Commonwealth argues that it did not offer evidence that the rooms containing drugs had been sublet and that the trial court, therefore, was free to reject such testimony. This argument, however, ignores the fact that the Commonwealth had the burden of proving beyond a reasonable doubt that the cocaine found by police was in the possession and control of appellant. The trial court’s rejection of defense evidence would not have been a substitute for proof, and in no way would have relieved the Commonwealth from its burden of proving each and every element of the crime charged beyond a reasonable doubt. See: Commonwealth v. Scott, 409 Pa.Super. 313, 319, 597 A.2d 1220, 1223 (1991); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 558, 488 A.2d 29, 33 (1985). See also: Commonwealth v. Graham, 528 Pa. 250, 596 A.2d 1117 (1991); Commonwealth v. Clinton, 391 Pa. 212, 137 A.2d 463 (1958). In any event, it is patently clear that the evidence of such subletting and occupancy was not rejected but was specifically accepted by the trial court acting as fact finder. An examination of the record discloses that the prosecution was unable to present any affirmative evidence that appellant, rather than the occupants of the bedrooms, knew of the presence of contraband and/or exercised control over the bedrooms in which it was found. Moreover, even if the uncontradicted testimony in this case were to be rejected, there is no evidence of appellant’s knowledge of the presence of contraband or control of the bedrooms in which contraband was found other than that she was the primary tenant of the property.

The Commonwealth, being unable to prove actual possession of contraband by appellant, relied on the doctrine of constructive possession. “If the Commonwealth is unable to prove that a suspect had a controlled substance on [her] person, the Commonwealth may show constructive possession of illicit drugs, and such may be demonstrated by showing that a defendant had power of control over and intended to exercise such control of [the] substance.” Commonwealth v. Davis, 331 Pa.Super. 285, 304, 480 A.2d 1035, 1045 (1984). See also: Commonwealth v. Bruner, 388 Pa.Super. 82, 98, 564 A.2d 1277, 1284-1285 (1989); Commonwealth v. Harris, 263 Pa.Super. 110, 119-120, 397 A.2d 424, 429 (1979). “ ‘The purpose of the constructive possession doctrine is to expand the scope of possession statutes to encompass those cases where actual possession at the time of arrest cannot be shown but where the inference that there has been actual possession is strong.’ ” Commonwealth v. Carroll, 510 Pa. 299, 302, 507 A.2d 819, 820 (1986), quoting Whitebread and Stevens, To Have and To Have Not, 58 U.Va.L.Rev. 751, 755 (1972). See also: Commonwealth v. Stembridge, 397 Pa.Super. 1, 4, 579 A.2d 901, 903 (1990).

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as “conscious dominion.” Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971). We subsequently defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Though these tests may be helpful and logical in the abstract, application to actual factual situations, particularly when multiple actors are involved, has proven difficult for our lower courts in cases involving controlled substances located on premises in joint possession but not on the actual person of any of the parties entitled to occupy those premises.

Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986). See also: Commonwealth v. Santiesteban, 381 Pa.Super. 18, 21-22, 552 A.2d 1072, 1074 (1988); Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 392-393, 539 A.2d 849, 851 (1988).

Constructive possession may in some instances be inferred from the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 369, 318 A.2d 327, 329 (1974). See also: Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983); Commonwealth v. Parsons, 391 Pa.Super. 273, 284, 570 A.2d 1328, 1334 (1990); Commonwealth v. Keefer, 338 Pa.Super. 184, 189, 487 A.2d 915, 918 (1985). “An accused may be charged with the knowledge of the location of the contraband, which is essential to the proof of an intent to exercise control, if the contraband is found in places peculiarly within the control of the accused.” Commonwealth v. DeCampli, 243 Pa.Super. 69, 75, 364 A.2d 454, 456-457 (1976). See also: Commonwealth v. Stamps, 493 Pa. 530, 538-539, 427 A.2d 141, 145 (1981); Commonwealth v. Diaz, 319 Pa.Super. 538, 539-540, 466 A.2d 674, 675 (1983); Commonwealth v. Thompson, 286 Pa.Super. 31, 34-35, 428 A.2d 223, 224 (1981). However, “where others have equal access to contraband, evidence of defendant’s mere opportunity to control the contraband is insufficient to sustain a conviction [for] its possession.” Commonwealth v. Banahasky, 250 Pa.Super. 495, 499, 378 A.2d 1257, 1259 (1977). See also: Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983); Commonwealth v. Chenet, 473 Pa. 181, 184-185, 373 A.2d 1107, 1108-1109 (1977); Commonwealth v. Fortune, supra, 456 Pa. at 368-369, 318 A.2d at 328-329; Commonwealth v. Davis, 444 Pa. 11, 16, 280 A.2d 119, 121 (1971); Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). “It is well settled that facts giving rise to mere ‘association’, ‘suspicion’ or ‘conjecture’ will not make out a case of constructive possession.” Commonwealth v. Valette, 531 Pa. 384, -, 613 A.2d 548, 551 (1992). Still, where the defendant is shown to have access to the contraband, “the Commonwealth may demonstrate constructive or joint constructive possession, from the totality of the circumstances, even though others may have had access to the drugs.” Commonwealth v. Davis, supra, 331 Pa.Super. at 305, 480 A.2d at 1045 (emphasis deleted). Thus, in situations where more than one person has access to the contraband, the Supreme Court has held that “constructive possession may be found in either or both actors if contraband is found in an area of joint control and equal access.” Commonwealth v. Mudrick, supra, 510 Pa. at 309, 507 A.2d at 1214. In such cases, it is the “shared access to and control of the area where the contraband [is] found” which is critical to a finding of constructive possession. Id.

Under the circumstances of the instant case, I would hold that the Commonwealth failed to present sufficient evidence to establish beyond a reasonable doubt that appellant had joint control of and equal access to the drugs, cash and paraphernalia found in the two bedrooms occupied by Zoraida and Flea. A close examination of the cases interpreting the doctrine of constructive possession supports this view.

In Commonwealth v. Macolino, supra, the Supreme Court observed that a bedroom is a more private place with limited access and is, therefore, usually subject to the exclusive control of its occupant. Id., 503 Pa. at 207, 469 A.2d at 135. See also: Commonwealth v. Gilchrist, 255 Pa.Super. 252, 255, 386 A.2d 603, 605 (1978); Commonwealth v. DeCampli, supra, 243 Pa.Super. at 74-76, 364 A.2d at 456-457. The Macolino Court held that a husband could be found to have been in constructive possession of drugs found in a bedroom closet which he shared with his wife. On the other hand, in Commonwealth v. Hannan, 229 Pa.Super. 540, 544-545, 331 A.2d 503, 505 (1974), the Superior Court held that a husband could, not be deemed in constructive possession of drugs found in his wife’s purse and dresser where there was no evidence that the husband had exercised control over or had any knowledge of the presence of drugs in his wife’s personal belongings. The Court in Hannan held further that the husband could not be deemed to be in constructive possession of marijuana which had been hidden in a drawer in the main bathroom of the house. The Court rejected the Commonwealth’s position that the husband’s ownership of the house and presence at the time of the search constituted sufficient evidence to permit a finding of constructive possession. The Court said:

In this case, no drugs were found on the person of the appellant Mr. Hannan nor was there any evidence of knowledge of the presence of drugs in his home. Nine persons were present at the time of the search, all of whom were staying at the house for varying lengths of time. A nurse, renting one of the bedrooms, was home for Christmas vacation. And, just four days before the search, twenty youths had attended a Christmas party at the Hannan house. Each and every individual could have had “equal access” to the drawer in the main bathroom.... [T]he bag of marijuana was found secreted in a drawer amidst numerous items in a metal cabinet. It is sheer speculation and certainly not that quality of evidence that would be sufficient to convict beyond a reasonable doubt to presume that Mr. Hannan had either knowledge of or indeed, “possessed” the marijuana discovered by the police.

Commonwealth v. Hannan, supra, 229 Pa.Super. at 546-547, 331 A.2d at 506.

In the instant case, there was no evidence that appellant had occupied or shared with others the two bedrooms where contraband was found. Rather, the evidence was that she had sublet those rooms to her sister and brother-in-law. To permit a finding that she had constructive possession of drugs found in these two rooms would permit homeowners to be found criminally liable whenever a person who rented a room kept cocaine or other controlled substances in the room. It would permit parents to be found in constructive possession of drugs secreted by a son or daughter in his or her bedroom. It would permit a finding of constructive possession even where a homeowner had no knowledge of the presence of drugs. To allow such a result is to allow a finding of guilt based on pure speculation. It would expand the principle of constructive possession beyond the facts of all prior decisions. Moreover, it defies the application of logic to the facts. It is not reasonable in such cases to infer knowledge of the drugs by the owner or an intent by the owner to exercise control over the contraband.

My conclusion is supported further by the decision in Commonwealth v. Luddy, 281 Pa.Super. 541, 547-550, 422 A.2d 601, 604-606 (1980), cert. denied, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981), where evidence was held insufficient to establish that a mother had had constructive possession of marijuana found in the crisper compartment of a refrigerator. The evidence showed that she had been one of four adults living in the house and that no marijuana had been found in her bedroom or on her person. Finally, there was no evidence as to how long the marijuana had been in the refrigerator or who had put it there. A similar conclusion was reached by the Supreme Court in Commonwealth v. Chenet, supra. In that case, marijuana had been found in the living room and kitchen of the defendant’s trailer and in the area immediately outside the trailer. In reversing the defendant’s conviction for possession of the marijuana, the Supreme Court held that possession of the contraband was not established where no drugs had been found in the defendant’s bedroom or on his person, but only in areas which were equally accessible to the defendant’s roommate and the roommate’s girlfriend. See also: Commonwealth v. Fortune, supra, 456 Pa. at 369, 318 A.2d at 329 (“We cannot assume that a resident of a home, where guests are present, knows of the full contents of the premises.”). Compare: Commonwealth v. Frometa, 398 Pa.Super. 110, 580 A.2d 865 (1990) (tenant of multi-unit apartment building could not be found in constructive possession of drugs found in basement of building which was accessible to other tenants in building).

The contraband in this case was not found in portions of the residence occupied jointly by those in residence. It was found concealed in bedrooms which had been sublet by the primary tenant and which were occupied by the subtenants. The fact that the subtenants were relatives of appellant and that the bedrooms were unlocked, in my judgment, was entirely insufficient to show that the appellant had knowledge of the concealed contraband or an intent to exercise conscious dominion over it. Actual possession under the circumstances established by the evidence in this case cannot be said to be more likely than not. The evidence was not of a quality which proved appellant’s guilt beyond a reasonable doubt. Therefore, I would reverse the judgment of sentence and discharge the appellant.

President Judge ROWLEY, and MONTEMURO and FORD ELLIOTT, JJ., join.

      . In particular, the probable cause section of the warrant provided that, between 1:30 p.m. and 2:30 p.m. on Sunday, the 22nd of January, 1989, the informant was inside the Wishart Street residence in the company of two "occupants” identified as "Zoraida” and "Flea”. The two “r[a]n a cut house” in which:
      ... they obtain[ed] large amounts of Cocaine in bulk form, from drug dealers, and they then cut and packagefd] these drugs into smaller packets, thus preparing the drugs for street sale, all in various amounts/weights. The Informant kn[e]w this to be true because during the aforementioned dt. and times, the Informant did observe on 2 separate occasions, unknown hispanic males enter[] this location and hand[ ] bulk amounts of COCAINE to the above mentioned persons, those persons then on each occassions [sic] telling the unknown hispanic males, "We can’t cut this until tonight, you can come for it around 10:00 tomorrow night, we're backed up”. During this period the Informant did observe these aforementioned persons retrieve from a gray tool box, a large square brick of compressed white powder, (COCAINE), and cut this into smaller pieces, weighing and packaging each piece individually on a kitchen table.
      Because of the information received, Officer McEwen conducted a surveillance of the
      Wishart Street address on the following dates and times, all of which were included in the probable cause section of the warrant which read:
      On 1-22-89 at 5:25 P.M., the Affiant did conduct a surveillance from a vantage point of 181 Wishart St., and remain there until 5:50 P.M., same date. During this period, the Affiant observed on 2 separate occassions [sic ], vehicles drive to this location and different unknown hispanic males did enter this location carrying small packages and left after only a few seconds without those packages.
      On 1-22-89 between 8:45 P.M. and 9:10 P.M., the Affiant did again return to this location and did conduct a second surveillance of location and observed on 1 occassion [sic] an unknown hispanic male walk to the front door, knock and was let in while carrying a small package and left without this package after only a few seconds. On 1-22-89 between 11:00 P.M., the Affiant conducted a surveillance of location yielding no activity observed.
      On 1-23-89 between 4:10 P.M. and 4:30 P.M., the Affiant conducted a surveillance of location and observed on 2 separate occassions [sic ], unknown hispanic males drive to the front of this location and appeared to dropp [sic] off small items wrapped in green plastic trash type material on each occassion [sic ], each only staying inside for a few seconds.
      The search warrant was admitted into evidence without objection. See Trial Court Opinion at 4.

      . More particularly, Officer McEwen testified that he inventoried:
      a) Ziplock bags containing 199 grams of chunky white powder (cocaine);
      b) Clear plastic ziplock bag containing 112.1 grams of cocaine;
      c) Small white bag containing 35.1 grams of cocaine;
      d) 54 pink plastic packets containing white powder;

        e) 8 packets, 3 of which were field tested for cocaine; net weight: 175, 168, 119, 146, 163, 132, 85 & 142 milligrams, respectively;
      f) 1 ziplock bag containing 7 sealed plastic packets of white powder — 2 packets selected at random contained cocaine and weighed 197 & 270 milligrams, respectively;
      g) 3 black and green plastic grinders, each with a residue of white powder (cocaine); and
      h) 1 clear glass jar containing 5.97 grams of a chunky white substance which was not controlled.

      . Ms. Aviles testified that she rented the rowhouse in question (which is no more than 16 feet in width) for $175 a month and paid $75 for electricity; $27 for gas; and $100 a month for heating oil. Her family’s living expenses came to $375, an amount which had to be offset by the receipt of $237 every two weeks from the Department of Public Welfare and the rent ($35) for the 2 bedrooms.

      . Interestingly, on February 1, 1989, Aviles’ counsel had photographs taken of the premises. All were of the rooms searched by the police on January 23, 1989, and depicted the disheveled condition in which the bedrooms and hallway were left, allegedly, by the police: clothing thrown willy-nilly and the second floor hallway was littered with clothing and other debris. All of this, supposedly, remained intact for 10 days after the search and following, according to Aviles’ son (Jorge), "Zoraida and Flea’s” flight from the premises on the evening following the police’s search — "They picked up the children and they picked up their clothes and they left ... and [Jorge] ha[s]n’t seen them no more.” Yet, those same two bedrooms still appeared to be cluttered with clothing and other personal belongings of Zoraida and "Flea” well after they exited the premises on the heels of the police search.
      Further, neither Ms. Aviles nor any of her witnesses (son and sister, Gladys) knew the number of children in Zoraida's family (Jorge said: 5; Ms. Aviles said: 4). And, during the entire time that Zoraida, "Flea” and the children lived in Aviles’ home, Gladys indicated that no one told her Zoraida was in town.
      Also, it needs to be mentioned that a private detective was hired by Aviles’ counsel to take photographs of the condition of the bedrooms after the search. However, no effort was made to produce “Zoraida”. All that was achieved was a "stipulation" by counsel that the defense attorney had spoken to a “Zoraida”. This was done, purportedly, to establish that Maria Aviles and "Zoraida” were not one and the same person.

      . Thereafter, bail was reinstated in the amount of $100,000.00 pending appeal. A property bond was posted by friends of Ms. Aviles.

      . Sergeant Perez and Officer Tames repeatedly denied having used force to enter the rear and middle bedrooms; each testified that the doors were open upon their arrival and contained no locks.

      . There was also testimony presented by the defense that the subtenants had installed locks on the doors to the rented bedrooms. However, the testimony of the police officers, who had participated in the search, established that the middle and rear bedrooms had not been locked at the time the house was searched. The officers were unable to recall whether or not the doors to these rooms had been equipped with locks.

      . There was no evidence at trial that Zoraida or Flea had advised suppliers about the time when processing would be complete or that a brick of cocaine had been cut by "the aforementioned persons ... on a kitchen table.” The only references to these incidents were attributed to the unnamed informant in the affidavit for search warrant.

      . With respect to the wife, the Hannan Court held that she could be found to be in constructive possession of drugs found in her purse and dresser, but not of marijuana found hidden in the main bathroom.


author: KELLY, Judge:

text:
    615 A.2d 408
    COMMONWEALTH of Pennsylvania v. Charles ISELEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1992.
    Filed Oct. 22, 1992.

      Denise L. Marley, Asst. Public Defender, Doylestown, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Com., appellee.
    Before TAMILIA, KELLY, and MONTGOMERY, JJ.
   KELLY, Judge:

In this case, we are called upon to determine whether a defendant may motion to withdraw a second or subsequent guilty plea based upon a mere assertion of innocence. We find that he may not and affirm.

The facts of this case have been properly set out by the trial court as follows.

1. On July 19, 1983, while represented by the Bucks County Public Defender, defendant entered guilty pleas to six separate informations.
The principal offenses in each of the six cases were:
Case No. Victim(s) Principal Offense
1372/83 Michael Geiger, Cindy Walker Robbery
1373/83 Robbery Linda Knight, Ralph DeDonado
1374/83 Robbery Kevin Michael Walker
1375/83 Robbery Joseph Hamann
1513/83 Robbery Mark George
1576/83 Robbery John, David & Helen Collins and Mary Beth Daley
Following extensive colloquy with defendant, the Honorable Oscar S. Bortner accepted the guilty pleas, deferred sentence and ordered a pre-sentence investigation by the Bucks County Department of Probation and Parole.
2. On August 4, 1983, defendant filed a petition to withdraw his guilty pleas. On August 10, 1983, Judge Bortner allowed the pleas to be withdrawn.
3. Thereafter, the cases were again scheduled for jury trial on September 19,1983. On that date, while then represented by private counsel, Theodore Thompson, Esquire, defendant, for a second time, entered open guilty pleas to all of the above informations. After extended colloquy with defendant, we accepted his pleas again, deferred sentence for completion of the pre-sentence investigation and for a psychological evaluation.
4. During the original guilty plea of July 19, 1983, and the second plea of September 19,1983, a co-conspirator, Michael Metzler, also pleaded guilty to four of the same offenses. (The Hamann and Mark George robberies involved only Iseley). A joint colloquy was conducted on each occasion.
5. At the July 19, 1983 guilty plea, the offenses were explained in detail by Judge Bortner with maximum permissible sentences on each count disclosed first to Metzler. Iseley acknowledged that he understood the nature of the charges as explained to Metzler. Then the separate informations applicable to Iseley were explained by Judge Bortner with the sentence máximums on each information and the total of all potential sentences, if consecutive (352 years). Iseley acknowledged he understood. (N.T. 7/19/83, 4-17).
6. On July 19, 1983, after some hesitation and after a recess to permit him to confer with counsel, defendant Iseley was asked the following by Judge Bortner (N.T. 23):
THE COURT: I want a clear statement that you did each and every one of the acts with which you are charged. If you did not do them, then don’t admit them. I am not pushing you to admit to something you did not do. Now, you’re the one that knows whether you did them or not. I wasn’t there. You were.
So, now, did you do these things or not?
MR EISELE [sic: ISELEY]: Yes, I did Your Honor.
7. On July 19, 1983, following acceptance of the guilty pleas, the District Attorney then introduced his detailed evidence on each of the six instant informations including detailed descriptions of the two bank teller machine robberies (1513/83 and 1375/83) involving only Iseley, with evidence that the proceeds thereof were found in defendant’s gym bag. There was also police testimony about the details of the robberies at the Kevin Walker house, the Geiger-Walker house, the Knight-DeDonado house and the Collins-Daley house. In each of the last four, Metzler was a co-conspirator.
8. Following withdrawal of the first guilty plea, defendant, at the September 19, 1983 guilty plea hearing, again stated unequivocally (N.T. 9/19/83, 47-48) that he was pleading guilty because he was satisfied that he really was guilty of each of the offenses charged.
9. The colloquy at the September 19,1983 hearing covered in detail the following matters: opportunity to confer with counsel prior to the plea, satisfaction with counsel’s knowledge of the underlying facts and his explanation of the legal principles, the difficulty in securing a withdrawal of a second plea of guilty, inquiry as to the requirements that a plea be voluntary, waiver of jury trial and rights to participate in jury selection, the necessity of a unanimous verdict, right to a non-jury trial, reasonable doubt and the presumption of innocence, waiver of the right to confront witnesses, waiver of right to pursue further any pre-trial motions under Rule 1100 or for suppression of evidence, rights not waived by a guilty plea and the fact that a guilty plea has the same effect as a verdict of guilty. (N.T. 8-19).
10. Thereafter, (N.T. 19-47) we outlined in detail the elements of robbery including theft and defined the nature of a serious injury involved with a robbery threat; the elements of burglary and the entry into a building with intent to commit a robbery; criminal trespass, possession of an instrument of crime; simple assault; and conspiracy. We then outlined with each defendant the specific cases involving each of the victims and named the victims in each case. (N.T. 19-34) The maximum sentence potential in each information was then reviewed with Iseley by his counsel, Mr. Thompson, with the total potential maximum detailed by the District Attorney.
11. Defendants Iseley and Metzger each then responded affirmatively to the following question:
THE COURT: Now, I would ask each of you, are each of you in fact pleading guilty because you are satisfied that you are guilty to all of these different very serious offenses which are charged against you, is that your reason for pleading guilty that because you are satisfied that you really are guilty, Mr. Metzler?
MR. METZLER: Yes, sir.
THE COURT: Mr. Iseley?
MR. ISELEY: Yes.
(N.T. 47-48)
12. Upon acceptance of the pleas, the District Attorney again summarized the evidence, defendant Iseley heard testimony as to the detailed facts in case number 1375,1512, 1374, 1373, 1377 and 1576 of 1983 from Detective Hart and Officer Karl Alscher of Middletown Township and Detective John Tegzes of Bristol Township. (N.T. 53-98).
13. On November 16, 1983, a motion to withdraw the second guilty plea was filed. We held a hearing on that motion on December 12, 1983 and denied the motion.
14. On the same date, we sentenced defendant to concurrent terms of 7-1/2 to 15 years on case numbers 1372, 1373, 1374, 1375 and 1513 of 1983 and a consecutive term of 5 to 10 years on number 1576 of 1983. We advised defendant of his right to file a motion challenging the validity of the sentence within ten (10) days and to file an appeal within thirty (30) days after any final order. (N.T. 12/12/91, p. 182). No post sentence motions were filed in the trial court and no direct appeal was taken.

Trial Court Opinion at 2-7.

On February 28, 1991, appellant filed a PCRA petition. A hearing was held on October 16, 1991, and appellant’s PCRA petition was denied. This timely appeal followed.

Appellant raises the following two issues on appeal:

A. WHETHER DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO APPEAL THE DENIAL OF THE MOTION TO WITHDRAW APPELLANT’S GUILTY PLEA.
B. WHETHER DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO ASSURE THAT THE GUILTY PLEA ENTERED WAS KNOWING, INTELLIGENT AND VOLUNTARY WHEN THE TRIAL COURT FAILED TO INFORM THE APPELLANT OF THE NATURE AND ELEMENTS OF THE OFFENSES CHARGED.

Appellant’s Brief at 3.

Appellant first contends that his counsel was ineffective for failing to appeal the trial court’s denial of his motion to withdraw his second guilty plea. He argues that a bare assertion of innocence is sufficient to allow withdrawal of his second guilty plea. We disagree.

The standard for determining if counsel was ineffective is well settled. In Commonwealth v. Thomas, 396 Pa.Super. 92, 98-99, 578 A.2d 422, 425 (1990), this Court held:

In order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.

(quoting Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987)) (citations omitted). To gain relief under the P.C.R.A. statute, however, appellant must also show that counsel’s ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilty or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii); Commonwealth v. Thomas, supra, 396 Pa.Super. at 98, 578 A.2d at 425.

There is no absolute right to withdraw a guilty plea. Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975). Courts have the discretion to permit or direct a guilty plea to be withdrawn at any time before sentencing. Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987); Pa.R.Crim.P. 320. When a defendant moves to withdraw his plea prior to sentence, he need only show a “fair and just” reason for the withdrawal and a lack of substantial prejudice to the Commonwealth. Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984); see also Commonwealth v. Jackson, 390 Pa.Super. 639, 569 A.2d 964 (1990).

In 1973, the Pennsylvania Supreme Court, in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), reversed judgment of sentence and granted a new trial on the basis that a mere assertion of innocence was a “fair and just” reason for the pre-sentence withdrawal of a guilty plea absent substantial prejudice to the Commonwealth. While never overruled, the continuing wisdom of the Forbes decision has been called into question on several occasions.

For example, in Commonwealth v. Cole, 387 Pa.Super. 328, 564 A.2d 203 (1989), an en banc panel of this Court was presented with the question of whether the mere assertion of innocence alone was a fair and just reason to allow presentence withdrawal of a guilty plea where the motion to withdraw was filed only after it became clear that a key witness against the defendant had returned to her home in Georgia. This Court reasoned that:

A criminal defendant will not be permitted to play fast and loose with the guilty plea process in order to delay prosecution or jeopardize the Commonwealth’s ability to prove guilt____ To permit him to withdraw his guilty plea after the witness had returned to her home in Georgia would be to permit appellant to use his motion to withdraw for the improper purpose of gambling on the Commonwealth’s ability to produce the witness for a second trial. This is the type of prejudice to the Commonwealth against which the rule was intended to protect.
* * * * * *
So many safeguards have been imposed by law to ensure that a guilty plea is voluntarily and knowingly made, that a defendant should not be permitted to withdraw his guilty plea, even before sentencing, merely by intoning the allegation that “I am not guilty,” where, as here, his plea of guilty was supported by an extensive colloquy in which the defendant expressly admitted guilt.6
6. Although we are required to follow the law as pronounced by the Supreme Court in Commonwealth v. Forbes, supra, one cannot help but question whether the rationale which has called for different standards for withdrawing pleas of guilty before sentencing and after sentencing is not wrong in its focus. As it pertains to a pre-sentence motion to withdraw, it diminishes the gravity of the entry of a guilty plea under Pa.R.Crim.P. 319 to allow the plea to be withdrawn prior to sentencing upon a bald assertion of innocence. Would it not be better— even more realistic — to hold that after a guilty plea hearing has been held under Rule 319 and the guilty plea has been entered by the defendant and accepted by the court, then such a plea may be withdrawn, either before or after sentencing, only to avoid prejudice in the nature of a manifest injustice? Such a uniformly applied rule would discourage the gamesmanship that is apparent in the instant case and would elevate the guilty plea hearing to the formal confession of guilt envisioned by the Supreme Court in Commonwealth v. Anthony, supra.

Commonwealth v. Cole, supra 387 Pa.Super. at 334-36, 564 A.2d at 206-07 (emphasis added).

Similarly, in Commonwealth v. Rish, 414 Pa.Super. 220, 606 A.2d 946 (1992), this Court was again asked to decide whether the mere assertion of innocence was sufficient cause to allow the pre-sentence withdrawal of a guilty plea. Therein, the Commonwealth had not asserted and the record did not contain any evidence of prejudice to the Commonwealth resulting from the withdrawal. Bound by the decision in Forbes, this Court reversed judgment of sentence, but noted that:

[ W]e are in agreement with many of our colleagues who have expressed dissatisfaction with the standard set out in Forbes. The developments in the guilty plea colloquy have successfully fulfilled the policy concerns underlying Forbes. The court in Forbes asserted that the liberal rule for withdrawal of a guilty plea before sentencing is consistent with the efficient administration of justice because it reduces the number of appeals contesting whether the plea was knowing and voluntary. Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973). However, an extensive colloquy is more effective in conserving judicial resources than the Forbes standard. We agree with Commonwealth v. Turiano, 411 Pa.Super. 391, 601 A.2d 846, 852 (1992) that a guilty plea colloquy ensures that a criminal defendant understands the significance of the constitutional rights he is waiving. See also Commonwealth v. Jones, 389 Pa.Super. 159, 164, 566 A.2d 893, 895 (1989), alloc. denied, 525 Pa. 632, 578 A.2d 926 (1990) (emphasizes importance of colloquy); Commonwealth v. Ortiz, 334 Pa.Super. 117, 121-123, 482 A.2d 1110, 1111-1113 (1984) (Dissenting Opinion by McEwen, J.) (noting that guilty plea colloquy displayed voluntariness of plea). However, as Forbes is still the law of this Commonwealth, we are constrained to follow it.

Id., 414 Pa.Super. at 225, 606 A.2d at 948. In a concurring opinion, the Honorable Stephen J. McEwen echoed sentiments he had earlier expressed, opining that a more acceptable standard for review of such cases might be that:

a pre-sentence assertion of innocence may compose the required “fair and just reason” provided that the totality of circumstances reflected by the record does not establish otherwise.
Commonwealth v. Cole, 387 Pa.Super. 328, 338-39, 564 A.2d 203, 208 (1989) (Concurring Opinion by McEwen, J.). Such a standard would more wisely serve reason, not to mention the citizenry, without intruding upon the fundamental rights of those defendants who present a valid basis for withdrawal.

Commonwealth v. Rish, supra, 414 Pa.Super. at 225, 226, 606 A.2d at 948 (McEwen, J., Concurring); see also Commonwealth v. Turiano, 411 Pa.Super. 391, 402, 601 A.2d 846, 852-53 (1992).

Whatever its ultimate wisdom, the continuing precedential effect of the Forbes decision is irrefutable. Unless and until the decision is overruled, the mere assertion of innocence remains a “fair and just cause” to allow the withdrawal of a guilty plea absent prejudice to the Commonwealth.

Instantly, however, appellant boldly urges that as a matter of law the liberal rule of withdrawal announced in Forbes controls even, where as here, an earlier guilty plea had been formerly entered and successfully withdrawn for the same charges. We cannot agree. The Forbes Court was not faced with, and thus did not decide, the question of whether a mere assertion of innocence constitutes a “fair and just cause” to allow withdrawal of a second or subsequent guilty plea. The same is true for its progeny. Indeed, no case cited by appellant is even remotely supportive of the proposition that an assertion of innocence may alone suffice to support a successful motion to withdraw under such circumstances. As a matter of law, therefore, the Forbes doctrine is simply inapplicable herein.

Moreover, there is no basis in logic to extend the Forbes rule to apply to second or subsequent pleas to the same charge. The rule in Forbes is made, perhaps over-solicitously, in favor of justice, to protect against the possibility that an innocent defendant will erroneously plead guilty. The rule was not designed, nor intended, to permit the gamesmanship and cyclical manipulation which could quickly become the hallmark of our guilty plea process should we adopt the position urged upon us by appellant. As this Court has previously noted:

“A guilty plea is not a ceremony of innocence, it is an occasion when one offers a confession of guilty---- The defendant is before the court to acknowledge facts that he is instructed constitute a crime.... He is then to voluntarily say what he knows occurred, whether the Commonwealth would prove them or not, and that he will accept their legal meaning and their legal consequence.” Commonwealth v. Anthony, 504 Pa. 551, 559, 475 A.2d 1303, 1307-1308 (1984). A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. Commonwealth v. Mitchell, 319 Pa.Super. 170, 175, 465 A.2d 1284, 1286 (1983). A defendant will not be permitted to postpone the final disposition of his case by lying to the court concerning his culpability and thereafter withdraw his plea of guilty by contradicting his prior testimony and asserting innocence. Cf. Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976).

Commonwealth v. Cole, supra, 387 Pa.Super. at 335, 564 A.2d at 206 (emphasis added). Such concerns apply, a fortiori, where as here, the defendant has burdened the system with such withdrawal motions, not once, but twice. Twice appellant was informed of the charges brought against him and the consequences of his guilty plea. Twice appellant was informed of his right to a jury trial and of his right to be presumed innocent. Twice appellant was questioned under oath as to the extent to which he understood this information and believed himself to be guilty. And twice appellant affirmatively, unequivocally and unambiguously indicated not only his understanding of the charges, his rights, and the consequences of his plea, but also that he was in fact guilty. Had appellant so desired, he could have asserted his innocence on at least these two occasions. He did not. Rather, appellant waited until shortly before his second scheduled sentencing date to assert this claim of innocence, offering absolutely no explanation for his delay in doing so.

Appellant’s assertion of innocence at this late stage smacks of little other than a self-serving attempt to improperly manipulate the system, and provides perhaps an apotheosis to illustrate the reason for rejecting a rule which allows withdrawal under such circumstances. The rule envisioned by appellant would most certainly make a “mockery of the guilty plea hearing process,” Commonwealth v. Cole, supra, 387 Pa.Super. at 335, 564 A.2d at 206, providing a ready means, if not an incentive, to perpetrate fraud on the courts. Moreover, the further delay inherent in allowing any second or subsequent guilty plea to be withdrawn on such dubious grounds is a burden too great for our already overcrowded criminal dockets to bear. Even more importantly, given that the accuracy of any subsequent trial (should the prosecution ever reach that stage) is dependent upon the ever fading memories and increasingly uncertain availabilities of the necessary witnesses, the power to prolong the prosecution could serve as a Sword of Damocles for the guilty defendant to suspend over the very heart of the trial, the search for truth. This power, we refuse to confer.

Simply put, we deem it both unwise and unjust to indulge so exceptionally belated an assertion of innocence as one heard first after a second guilty plea has been entered. The possibility that such an assertion is based in fact rather than machinations is remote in the extreme; it is a virtual certainty, on the other hand, that a rule which provides for the withdrawal of a second or subsequent guilty plea based on the mere incantation of the words, “I now claim I am innocent,” will at once reward the guilty and undermine the integrity of the system. We conclude, therefore, that absent extraordinary circumstances, not present herein, a mere assertion of innocence may not be considered by a reviewing court to be alone a fair and just reason for withdrawal of any second or subsequent guilty plea. Appellant’s underlying claim of error is therefore without merit. As such, appellant’s contention that his plea counsel was ineffective must fail.

Appellant next contends that defense counsel was ineffective for failing to assure that he was specifically informed of all the elements of all offenses for which he was charged and to which he plead guilty. We cannot agree.

In Commonwealth v. Harvey, 407 Pa.Super. 545, 595 A.2d 1280 (1991), this Court stated that:

Claims of unlawfully induced guilty pleas based on ineffective assistance have previously been entertained. See Commonwealth v. Miller, supra [495 Pa. 177, 433 A.2d 1 (1981) ]; Commonwealth v. Unger, 494 Pa. 592, 597 n. 4, 432 A.2d 146, 148 n. 4 (1980); Commonwealth v. Knox, 304 Pa.Super. 368, 372, 450 A.2d 725, 727 (1982). To be successful, appellant must show that the ineffectiveness caused him to enter an involuntary or unknowing plea. Commonwealth v. Lutz, 492 Pa. 500, 505-506, 424 A.2d 1302, 1305 (1981).

Id., 407 Pa.Super. at 549, 595 A.2d at 1282-83. The Pennsylvania Supreme Court has stated “that the importance of the colloquy is to demonstrate that defendant’s action is taken voluntarily and intelligently____ The essential element is therefore a recorded demonstration that the defendant is fully aware of the ramifications of his action and is entering his plea voluntarily.” Commonwealth v. Ingram, 455 Pa. 198, 200, 316 A.2d 77, 78 (1974). Six areas of inquiry have been identified as essential in insuring the validity of a plea. To be lawful, “a guilty plea must include inquiry as to whether: 1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has a right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement.” Commonwealth v. Cole, supra 387 Pa.Super. at 336, 564 A.2d at 206-07, citing Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977); Pa.R.Crim.P. 319. Notwithstanding this apparent check-list approach, it is clear that the determination of whether a guilty plea can withstand a challenge must be based upon the totality of the circumstances surrounding the plea and the challenge must go beyond a mere claim of a technical violation. Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983).

Thus, consideration of whether a defendant understood the nature of the crimes with which he was charged is not limited to an examination of the direct instruction by the court. Commonwealth v. Shaffer, 498 Pa. 342, 350, 446 A.2d 591, 595 (1982); Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982). Rather, as this Court has previously held, such factors as the defendant’s presence at and understanding of a co-defendant’s colloquy during a guilty plea to the same charges may be considered sufficient notice of the elements of the crimes to which a defendant plead guilty. See Commonwealth v. Harris, 286 Pa.Super 601, 429 A.2d 685 (1981). Similarly, our Supreme Court had considered the defendant’s previous convictions indicative of the knowledge of the elements of such crimes for the purposes of a subsequent guilty plea. See Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1330 (1984).

In reviewing the record made of appellant’s first guilty plea colloquy, appellant’s co-defendant’s guilty plea colloquy (for which appellant was present), and appellant’s last guilty plea colloquy, it is clear that at one point or other appellant was eventually made aware of each of the elements of the crimes to which he plead guilty. Moreover, the record also includes appellant’s affirmative admission on the record that he fully understood the nature of the crimes for which he was charged.

THE COURT: Now, I would ask each of you, are each of you in fact pleading guilty because you are satisfied that you are guilty to all of these different very serious offenses which are charged against you, is that your reason for pleading guilty that because you are satisfied that you really are guilty, Mr. Metzler?
MR. METZLER: Yes, sir.
THE COURT: Mr. Iseley?
MR. ISELEY: Yes.

(N.T. 9/19/93 47-48). It is therefore fatuous for appellant to suggest now that he was unaware of the nature of the charges brought against him merely because the trial court failed to fully re-explain each and every element of the charges during his second colloquy. The trial court was under no duty to engage in such a rote and purposeless exercise in redundancy. Under the totality of the circumstances, it is clear that appellant was well aware of the nature of the charges to which he plead guilty. Accordingly, we conclude that appellant’s underlying claim of error is without merit. As such, appellant’s second contention that his plea counsel was ineffective must fail.

Judgment of sentence Affirmed.

MONTGOMERY, J., concurs in the result.

      . Cf. Commonwealth v. Turiano, supra, 411 Pa.Super. at 402, 601 A.2d at 852 (discussing the squandering of judicial resources inherent in entertaining serial guilty plea colloquies).

      . See Commonwealth v. Wall, 413 Pa.Super. 599, 614-15, 606 A.2d 449, 457 (1992).

      . Cf. Commonwealth v. Boatwright, 404 Pa.Super. 75, 82, 590 A.2d 15, 20 (1992).

      . "The guilty plea colloquy must be considered in the light of the overall objective which is to insure that the plea is made with an understanding of the charges and an awareness of the consequences. Commonwealth v. McNeill, 453 Pa. 102, 106, 305 A.2d 51 (1973).” Commonwealth v. Johnson, 460 Pa. 169, 174, 331 A.2d 473, 477 (1975).