author: BROSKY, Judge.

text:
    570 A.2d 1074
    In re ESTATE OF Sara M. PYLE, Deceased. Appeal of Melanie G. BANNAN.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1989.
    Filed March 2, 1990.

      Frank J. Williams, Paoli, for appellant.
    James L. Head, West Chester, for appellee.
    Charles E. Donohue, Philadelphia, for Com., participating party.
    William H. Mitman, West Chester, for Charles Moran, participating party.
    Grahame P. Richards, Jr., Philadelphia, for American Heart Ass’n, participating party.
    Before BROSKY, BECK and HOFFMAN, JJ.
   BROSKY, Judge.

This is an appeal from a final decree entered by the Orphans’ Court which confirmed the first and final account filed by the executors.

The following issues have been presented for review: (1) whether the trial court erred in concluding that the language in the will was insufficient to alter the statutory scheme of taxation, and if so, whether the trial court erred in affirming the account where the executors deducted the remaining Pennsylvania inheritance taxes and the entire and Federal estate taxes due only from appellant’s share, contrary to the intent expressed by the testatrix in her will; and (2) whether the trial court erred in disallowing the scrivener’s testimony which would have been relevant in construing the testatrix’s intent. For the reasons set forth below, we affirm the decision of the trial court.

Sara M. Pyle died testate on December 29,1986. Her will was probated on January 9, 1987 and letters testamentary were issued on the same date to Walter Carlin, Jr., Doris Carlin and Thomas Hendricks as the executors of her estate. In clause 11 of her will, the testatrix provided that the residue of her estate was to be divided into equal shares and distributed to Melanie G. Bannan, the American Heart Association and the Charles Moran American Legion Post, respectively. The will further provided in clause 12 that all estate and inheritance taxes were to be paid out of the residuary portion of the estate.

Appellant filed a petition requesting that the executors be directed to file an account; the petition was granted and the first and final account was filed on May 25, 1988. In the account, the executors paid the Pennsylvania Inheritance Tax for each pre-residuary specific bequest from the residuary clause, divided the amount remaining in the residuary portion into three equal shares, and then deducted from Melanie Bannan’s share the Pennsylvania Inheritance Tax due on that share as well as the Federal Estate Tax due on the entire estate. Objections to the account were thereafter filed. A decree nisi was issued on October 20, 1988 which directed the executors to amend certain portions of the account; in all other respects, however, the account was confirmed. Appellant filed exceptions to the account which were denied by final decree entered on March 15, 1989. The appeal to this court was timely filed on March 23, 1989.

The dispute in this case arises from the interpretation accorded clauses 11 and 12 in the will which state:

ELEVENTH: All the rest, residue and remainder of my estate, I divide into three equal shares, one of which I give, devise and bequeath unto MELANIE G. BANNAN, absolutely, and I give, divise [sic] another equal share unto the SOUTHEASTERN CHAPTER of the AMERICAN HEART ASSOCIATION, which is now located at 37 West Market Street, West Chester, Pennsylvania, and the third equal share unto the CHARLES MORAN AMERICAN LEGION POST, of Downingtown, Pennsylvania, in memory of my brother-in-law, Joseph E. Miller. (Emphasis added.)
TWELFTH: I direct that all estate and inheritance taxes on any property passing under this Will, or by reason of my death, shall be paid out of the residuary portion of my estate, and that no beneficiary of mine shall be called upon or required to reimburse my Executors.

The trial court concluded that the language contained in the above clauses was not specific enough to overcome the presumption that the statutory scheme regarding allocation of taxes should be followed. We agree.

Before attempting to interpret these provisions, a review of the relevant statutory authority is necessary. To further simplify our discussion, we will first discuss estate taxes. 20 Pa.C.S.A. § 3704 requires that “[t]he Pennsylvania estate tax shall be apportioned in the same manner as the Federal estate tax.” Thus, we must turn to 20 Pa.C.S.A. § 3701 which controls the apportionment of federal estate taxes and provides:

A testator ... may direct how the Federal estate tax ... due because of his death, including interest and penalties, shall be apportioned ... Any such direction shall take precedence over the provisions of this chapter insofar as the direction provides for the payment of tax or any part thereof from property the disposition of which can be controlled by the instrument containing the direction.

In the absence of direction by the testator, 20 Pa.C.S.A. § 3702(a) requires the Federal estate taxes to be equitably apportioned among all parties interested in property includible in the gross estate. There are exceptions to this general rule, however, as set forth in § 3702(b)(1) below:

No Federal estate tax shall be apportioned against a beneficiary of any pre-residuary gift made by will. Any Federal estate tax attributable thereto shall be paid entirely from the residue of the estate and charged in the same manner as a general administration expense of the estate except that when a portion of the residue of the estate is allowable as a deduction for Federal estate tax purposes the tax shall be paid to the extent possible from the portion of the residue which is not so allowable.

Consequently, we must determine whether the testatrix’s will adequately directs how the Federal estate tax is to be apportioned, if the statutory scheme is to be altered. As this court has previously observed:

The polestar in the interpretation of any will is the intent of the testator which must be gathered from the entire will____ ‘To ascertain this intent, a court examines the words of the instrument and, if necessary, the scheme of distribution, the circumstances surrounding the execution of the will and other facts bearing on the question.’ ... In the ascertainment of a testator's intent, a clause in a will must not be read in isolation but rather in the context in which it appears____ Further, in interpreting wills ‘the law will impute to the testator’s words such meaning as under all the circumstances will conform to his probable intention and be most agreeable to reason and justice.’

Estate of McKenna, 340 Pa.Super. 105, 109-110, 489 A.2d 862, 865 (1985) (citations omitted) (emphasis added). Accordingly, we must construe both clauses of the will together, in order to glean the testatrix’s intent.

As most wills are seldom alike, it is necessary to interpret each will according to its own peculiar terms. In re Wahr’s Estate, 370 Pa. 382, 386, 88 A.2d 417, 419 (1952) (dissenting opinion, Bell and Musmanno, JJ.) As a result, there are comparatively few cases which have interpreted clauses of this type, and those which have done so demonstrate the difficulty in finding a clear expression of intent. For example, in Wahr, supra, the majority held that because the will was silent as to the payment of taxes, the clause directing that the residuary estate be divided into equal shares, standing alone, was insufficient to indicate an intent to apportion taxes contrary to the statute. In the case of In re Audenried’s Estate, 376 Pa. 31, 101 A.2d 721 (1954), however, the same court held that the will did evidence a contrary intent because the testatrix specified that the taxes on all legacies were to be paid from the residuary estate (emphasis added).

The Pennsylvania Supreme Court again addressed this question in In re Estate of Erieg, 439 Pa. 550, 267 A.2d 841 (1970) and found that the testator did not express a clear intent where the will merely provided for the payment of all taxes from the residuary estate. This issue was again discussed in In re Estate of Fleishman, 479 Pa. 569, 388 A.2d 1077 (1978) where the will specifically directed the executors to pay all taxes out of the principal of the residuary estate, but further provided that “no part [of the taxes] ... shall be pro-rated among any persons receiving ... the property ... taxed”, Fleishman, 479 Pa. at 573, 388 A.2d at 1079. Although the appellate authorities seem to be divided on this issue, a closer inspection reveals that the testator must use specific language in order to establish a contrary intent; in the absence of such language, a contrary intent will not be implied.

In support of her argument that the will unambiguously establishes a contrary intent, appellant refers us to the case of In re Benham Estate, 4 Fiduciary Reporter 2d 202 (O.C. Chester County 1983). The will in Benham contained clauses similar to the one at issue here; however, the order in which they fell was reversed, i.e., the taxation clause preceded the residuary clause. The court in Ben-ham, as a result of the position of the clauses, concluded that the testatrix had indicated a sufficient contrary intent. Benham is not controlling authority, nor do we find the reasoning pertaining to the order of the clauses to be exceedingly persuasive. Had the testatrix used the specific language, the order of the clauses in the will would be irrelevant. Appellant also cites language from In re Wright Estate, 44 D. & C.3d 41, 44, 6 Fiduciary Reporter 2d 337 (O.C. Montgomery County 1986) where the court discussed these types of clauses. The trial court determined in Wright that the testatrix did not evidence a contrary intent. However, in dictum the court stated that tax clauses of this type had a different purpose prior to 1961, and intimated that a different result might have occurred if the will had been drafted after 1961, as the taxation clause would be rendered meaningless unless construed to alter the statutory scheme. Wright, 44 D. & C.3d at 45, 6 Fiduciary Reporter at 338-339.

Appellant relies on Wright to support her contention that clause 12 will be rendered meaningless if we do not construe it so as to require the taxes to be paid out of the entire residuary portion of the estate. Such reasoning is flawed and is contrary to appellate and statutory authority. Clause 12 simply provides that all estate and inheritance taxes are to be paid out of the residuary portion of the estate, but does not explain how the taxes are to be apportioned among the residuary beneficiaries. Thus, the interpretation of the trial court does not render the clause meaningless. Clause 12 is merely a recitation of the law as found in § 3702(b)(1), supra. The clause may still be enforced, but in the absence of further direction from the testatrix, the statutory presumption must be applied. If the testatrix had desired to disrupt the statutory scheme, she could have used the appropriate language and specifically stated that all taxes were to be paid from the residue prior to distribution and that no part of the taxes should be pro-rated or apportioned among the persons or beneficiaries receiving the taxable property. Unfortunately for appellant, the requisite specificity is lacking.

Finally, appellant claims that the term “absolutely”, which is inserted after Melanie Bannan’s name in clause 11, must be construed with clause 12 so that together the two clauses evince a contrary intent. The word absolutely has been defined as “in an absolute manner or condition; independently, unconditionally, entirely or positively”, Webster’s Third New International Dictionary 7 (1966). When used in a will, this word has been interpreted as “indicat[ing] that [the] testat[rix]’s primary intent was to make a bequest to the [beneficiary].” Estate of Terrell, 47 Erie County Legal Journal 78, 82 (1964). We therefore must conclude that the testatrix in this case, by use of the term “absolutely”, intended only to give Melanie Bannan an unconditional one-third share of the residue, and despite appellant’s definitional gymnastics to the contrary, the term cannot be construed as implying an intent to disrupt the statutory apportionment scheme.

We further observe that the residuary beneficiaries in this case are charities. Under § 3702(c), if the bequest is allowable as a marital, orphan’s or charitable deduction, then no federal estate tax may be apportioned against such an interest. In this cáse, the bequest given would seem to qualify as a charitable deduction, which would benefit the estate by decreasing the amount of estate tax due. Thus, under § 3702(b)(1), appellant’s share must bear the burden of paying the entire estate tax as the shares allocated to the charities are tax exempt. If appellant’s interpretation were adopted, however, the shares given to the charities would be reduced, thereby reducing the deduction available to the estate and causing the estate to pay a greater amount of estate tax. While the testatrix was free to upset this scheme, it does not appear from her will that such was her intent. Accordingly, we must affirm the decision of the trial court.

The above analysis may be applied with equal vigor to the Pennsylvania inheritance taxes. 20 Pa.C.S.A. § 3703 states that “[t]he Pennsylvania inheritance tax shall be apportioned as provided in the act of June 15, 1961 (P;L. 373, No. 207), known as the ‘Inheritance and Estate Tax Act of 1961.’ ” Therefore, we must turn to the provisions of this act. First it must be noted that 72 Pa.C.S.A. § 1711(c)(1), (2) specifically exempts charities and fraternal organizations from taxation. 72 Pa.C.S.A. § 1744 governs the source of payment for inheritance taxes and provides:

(a) Outright devises and bequests. — In the absence of a contrary intent appearing in the will, the inheritance tax, including interest, on the transfer of property which passes by will absolutely and in fee, and which is not part of the residuary estate, shall be paid out of the residuary estate and charged in the same manner as a general administration expense of the estate. The payments shall be made by the personal representative and, if not so paid, shall be made by the transferee of the residuary estate____
(f) Other transfers.--In the absence of contrary intent appearing in the will or other instrument of transfer and except as otherwise provided in this section, the ultimate liability for the inheritance tax, including interest shall be upon each transferee.

Thus, unless contrary intent appears, the taxes are to be paid from the residuary estate. In this case, the charities are exempt from taxation, and therefore, the only inheritance taxes remaining, after payment of inheritance tax on the pre-residuary bequests, are on the residuary share bequeathed to appellant. As we held above, there is no contrary intent appearing in this will. Moreover, appellant only paid inheritance tax on her share of the residuary estate, since the executors deducted the inheritance taxes on the pre-residuary bequests from the residuary portion of the estate before it was divided among the residuary beneficiaries. Accordingly, the trial court was correct in affirming this portion of the account.

The last issue raised by appellant concerns the admission of extrinsic evidence. With regard to this issue this court has stated:

When the court can ascertain the intent of the testator with reasonable certainty through examination of the will itself, it generally does not look to matters external to the will____ ‘Where, however, a court cannot feel such confidence in distributing the estate by reference to the will only, ... it is proper and necessary to inquire into the circumstances of the testator at the time of execution of his will and other evidence which bears on intent.’

Estate of McKenna, supra, 340 Pa.Super. at 110, 489 A.2d at 865 (citations omitted). In reviewing the relevant clauses of the will, we can discern no ambiguities, and counsel for appellant agrees with this premise. See Brief of Appellant Bannan at p. 16. Nonetheless, appellant argues that it was error for the trial court to exclude the scrivener’s testimony and urges us to adopt the “arm-chair rule.” Because the will is clearly not ambiguous, we can see no reason to discard the “four corners rule” reaffirmed by this court in McKenna. Accordingly, we find appellant’s argument to be without merit and affirm the trial court on this basis.

Decree affirmed.

      . This act was previously located in 72 P.S. §§ 2485-101 et seq., which has now been repealed. The new provisions governing inheritance taxes Eire found in 72 Pa.C.S.A. §§ 1701 et seq.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    570 A.2d 1079
    Margaret STERNER v. Walter and Shirley FREED, Appellant.
    Superior Court of Pennsylvania,
    Argued Dec. 12, 1989.
    Filed March 2, 1990.

      Edmund G. Hauff, Allentown, for appellant.
    Frederick P. Rooney, Allentown, for appellee.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

Walter and Shirley Freed appeal the chancellor’s decree permanently enjoining them from interfering with or obstructing plaintiff Margaret Sterner’s reasonable use of a driveway located upon the Freeds’ property. On this, appeal, we decide that an owner’s permission that another may use his land will terminate upon sale of the land and further use of the land is hostile unless permission is again granted. The judgment entered upon the decree is affirmed.

The Freeds and Sterner are owners of adjacent properties. What are now the respective properties of the Freeds and Sterner were, in 1923, each held by Sterner’s father, William Weaver. By will, William Weaver directed that the properties be sold by his executors after the death of his wife, Ivy. After Ivy Weaver’s death, Sterner received title in the property located at 4715 Main Street, Whitehall, Pennsylvania (4715 property). She has held uninterrupted title in this property ever since. The second property located at 4719 Main Street (4719 property), now owned by the Freeds, was initially sold by William Weaver’s estate to executor Harry Weaver and his wife Wilma Weaver. Harry and Wilma Weaver then sold the property to Sterner’s niece Marilyn Kern and her husband, Clarence. In 1962, the Kerns sold the lot to Paul Palko. Palko purchased the property for his niece Shirley Freed. Shirley Freed and her husband Walter Freed began living in the property in 1962. Palko resided with his niece from 1972 until his death in 1987. Shortly before his death in 1987, Palko reconveyed the property to himself and Shirley Freed as joint tenants. Upon Palko’s death in 1987, Shirley Freed became the property’s sole owner and reconveyed the property to herself and husband Walter Freed.

In 1957, prior to the Freeds ownership, a driveway was constructed upon the 4719 property in order that the owners of each adjacent property could reach their respective lots by a rear alleyway. The driveway was constructed at the expense of the Kerns who then owned the 4719 property and Sterner, the owner of the 4715 property. The occupants of both properties regularly used the driveway. This practice continued after the 4719 property was sold to Palko and the Freeds began to reside at that property in 1962.

In February, 1988, the Freeds erected a barrier which obstructed Sterner’s access to the driveway. On March 16, 1988, Sterner initiated the present action, contending that she had acquired a prescriptive easement over the driveway. After a hearing, on May 12, 1988, the chancellor issued a Decision and Decree Nisi enjoining the Freeds from interfering with the reasonable use of the driveway. Post-trial motions were heard before the court en banc and denied on March 30, 1989. Judgment was entered against the Freeds on May 26, 1989.

On appeal, the Freeds request that we consider:

I. WHETHER THE COURT OF COMMON PLEAS OF LEHIGH COUNTY ERRED IN FINDING THAT THE APPELLEE, MARGARET STERNER, OBTAINED A PRESCRIPTIVE EASEMENT BY CONTINUOUS, OPEN, HOSTILE, AND ADVERSE USE OVER THE PROPERTY OF THE APPELLANTS, WALTER AND SHIRLEY FREED?
II. WHETHER, ASSUMING THAT A PRESCRIPTIVE EASEMENT WAS ACQUIRED BY THE APPELLEE, MARGARET STERNER, SAID PRESCRIPTIVE EASEMENT PERMITS THE USE OF SAID DRIVEWAY BY THE APPELLEE’S TENANTS?

Our standard of review of a judgment in equity is to determine whether there has been a clear abuse of discretion or error of law. Walley v. Iraca, 360 Pa.Super. 436, 441, 520 A.2d 886, 889 (1987). The findings of the chancellor, where affirmed by the court en banc, are given the same effect as the jury verdict and will not be disturbed unless based upon insufficient evidence. Tioga Coal Company v. Supermarkets General Corporation, 519 Pa. 66, 75, n. 4, 546 A.2d 1, 5, n. 4 (1988).

At issue I the Freeds dispute the chancellor’s determination that the elements of prescription were satisfied. In particular they argue that hostile possession was not established. In order to prevail on a claim of prescription, Sterner was required to show that her use of the Freeds’ driveway was actual, continuous, adverse, visible, notorious and hostile for a period of twenty-one years. Hash v. Sofinowski, 337 Pa.Super. 451, 455, 487 A.2d 32, 34 (1985).

The chancellor determined that construction of the driveway was a common undertaking between relatives, Sterner and the Kerns and thus use of the driveway, when first constructed, was permissive. Also, the chancellor found, and the Freeds do not dispute, that Sterner used this driveway openly, continuously and notoriously from the date of construction in 1962 until the Freeds’ barrier was erected in 1988. However, the chancellor concluded, and we agree, that permissive use of the driveway was implicitly rescinded upon sale, in 1962, of the servient tenement to Palko, Shirley Freed’s uncle. Thus, Sterner’s continued notorious use after Palko received title was adverse.

Our resolution of this matter is controlled by this court’s decisions in Orth v. Werkheiser, 305 Pa.Super. 576, 451 A.2d 1026 (1982) and Waltimyer v. Smith, 383 Pa.Super. 291, 556 A.2d 912 (1989). The Orth court began with the principle that a permissive use cannot ripen into prescription. The court also recognized that permissive use terminates upon the transfer of ownership in the servient tenement. Orth v. Werkheiser, 305 Pa.Super. at 580, 451 A.2d at 1028. From this the court derived its holding with respect to the effect of a sale of the dominant tenement. It determined that permissive use will also terminate upon transfer of ownership in the dominant tenement since permissive use is personal to the initial grantee. Id. These principles were reaffirmed in Waltimyer 383 Pa.Super. at 295-296, 556 A.2d at 914-915.

Based upon Orth and Waltimyer, we have no difficulty concluding that Sterner’s permissive use of the driveway terminated upon the Kern’s sale of the servient tenement to Palko in 1962. Where the grantor permits another to use a common driveway, the grantor creates a revocable personal license. See Waltimyer, 383 Pa.Super. at 295, 556 Pa.Super. at 914. Such licenses do not extend beyond the ownership of the grantor. Puleo v. Bearoff, 376 Pa. 489, 103 A.2d 759 (1954); Thompson v. Commonwealth, 214 Pa.Super. 329, 257 A.2d 639 (1969).

The Freeds contend that the supreme court’s decision in Margoline v. Holefelder, 420 Pa. 544, 218 A.2d 227 (1966) dictates a contrary result. Specifically, they rely upon the language of Margoline which states, “even where there is no attempt at tacking of uses by the adverse user a prior permissive use by a predecessor in title will be deemed to continue as such until the contrary is shown." They essentially argue that this statement implicitly rejects succession in ownership as proof that permission has been terminated because the statement purports to require clear and convincing proof even after the transfer in title. As explained in both Orth and Waltimyer, this language is dicta appearing in a decision which neither addressed the issue before the Orth and Waltimyer courts, nor the issue before us, whether a permissive use terminates upon succession of interest. Moreover, this language refers to the succession of interest in the dominant tenement which is not the case before us. Thus, Margoline is inapposite under the facts of this case. Once the Kerns sold their property to Palko, Sterner’s permission was revoked and her continued use was taken against the new owner’s interest unless permission was once again granted.

The Freeds contend that permission was granted by onetime joint property owner Palko. Shirley Freed alleges that she overheard a conversation between Palko and Clarence Kern in which Palko agreed to permit Sterner continued use of the driveway. Clarence Kern denies any knowledge of this conversation. The chancellor, as trier of fact, was entitled to disbelieve Shirley Freed and believe Kern. We accept the chancellor’s conclusion.

Where a familial or fiduciary relationship exists, permissive use will be presumed. Waltimyer v. Smith, 383 Pa.Super. at 295, 556 A.2d at 914. However, where, as here, there is no special relationship between the parties, notorious use provides sufficient notice to the owners of the servient tenement that their land is being used adversely. Id. The burden then shifts to the servient tenement owners, the Freeds, to prove that the use was not hostile but permissive. Id. It is clear from the record that the use of the Freeds’ driveway was notorious. However, the only evidence of permission, Shirley Freed’s testimony, was disbelieved by the chancellor. Thus, Shirley Freed did not carry her burden to prove permissiveness.

In addition, the record supports the chancellor’s finding of hostility. Sterner testified that she had never discussed her use of the driveway with Palko or the Freeds; she never asked nor did she receive permission to use the driveway. Also, Sterner permitted her family members and guests to use the driveway on a regular basis and she advised her tenant that the tenant had a “right” to use the driveway. Under these circumstances, the following legal principle applies:

“[W]here one uses an easement whenever he sees fit, without asking leave, and without objection, it is adverse, and an uninterrupted adverse enjoyment for twenty-one years is a title which cannot be afterwards disputed.”

[Citations omitted]. Adshead v. Sprung, 248 Pa.Super. 253, 375 A.2d 83, 85 (1977). Sterner’s adverse use continued from 1962 until 1988 when the barrier was erected, a period of twenty-six years. Accordingly, the evidence was sufficient to establish that Sterner acquired an easement by prescription.

Next, the Freeds contend that even if an easement has been acquired, the current use of the driveway by Sterner’s tenant is an unreasonable enlargement of the use during the prescriptive period. We disagree. During the prescriptive period, Sterner permitted family members to live with her at no cost and to use the driveway for access to the alleyway. The only difference in this practice is that the person who now lives with Sterner pays for the privilege to do so. “Normal evolution of the dominant tenement permits reasonable increases in the burden imposed upon the servient tenement.” Hash v. Sofinowski, 337 Pa.Super. 451, 458, 487 A.2d 32, 36 (1985); Bodman v. Bodman, 456 Pa. 412, 321 A.2d 910 (1974). There is no evidence that the driveway is being used more frequently or in a different manner than the use during the prescriptive period. Accordingly, there has been no unreasonable enlargement of the easement. For the foregoing reasons, we affirm the judgment entered upon the decree of Chancellor David E. Mellenberg.

Judgment affirmed.


author: DEL SOLE, Judge: KELLY, Judge,

text:
    570 A.2d 1323
    COMMONWEALTH of Pennsylvania v. Edward D. MOYERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 13, 1989.
    Filed Feb. 26, 1990.

      John R. Kelsey, III, Lebanon, for appellant.
    David P. Wingert, Asst. Dist. Atty., Lebanon, for Com., appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   DEL SOLE, Judge:

Edward D. Moyers, the Appellant in this case, was tried in the Court of Common Pleas of Lebanon County on the charges of delivery of one gram of cocaine and criminal conspiracy. After a jury trial he was found not guilty of delivering a Schedule II controlled substance, and guilty of criminal conspiracy.

In the summer of 1986 two undercover officers, Agent Jeanne Berlin, from the Commonwealth’s Bureau of Narcotic Investigations, and Detective Sergeant Paul Zechman, of the Lebanon County Detective Bureau, were involved in a narcotics investigation concerning the personnel who worked in the “backside” (the area containing the stables, the equipment, the barn etc.), of the Penn National Racetrack in Dauphin County. In the course of the investigation, the officers had occasion to work with Judy Wood, a groom at Penn National, as an informant.

On the date in question, the two officers received word from Ms. Wood that she was planning to buy some cocaine from Thomas Brightbill after the third race. Prior to that buy, the officers met with Ms. Wood in the tack room of the racetrack, and they then went together to see Mr. Brightbill in the kitchen area nearby. The officers posed as horse owners who were seeking to buy a gram of cocaine. When Mr. Brightbill arrived, he stated that he had been unable to locate his source, one Bill Bolling, and consequently it was necessary to go to Siler’s bar in Dauphin County to find him.

As a result, Ms. Wood, her boyfriend, the two officers and Mr. Brightbill went to Siler’s bar, using two separate cars. While Mr. Brightbill went into the bar, Agent Berlin gave Ms. Wood one-hundred and five dollars ($105.00), one hundred for the cocaine and five dollars for whomever provided the cocaine. Within a few minutes, Mr. Brightbill and Appellant emerged from the bar. Appellant gave Ms. Wood a hug, and then Ms. Wood walked over to the officers’ car to tell them that Appellant would get her a gram of cocaine. She then left with Appellant Moyers in his pickup truck to go to a party in Valley Glen, in Lebanon County, where she was to procure the cocaine.

Mr. Brightbill and the officers remained behind in Siler’s parking lot. When the others had left, Mr. Brightbill came over to the officers’ car and reassured them that everything would be all right, that Appellant would take Ms. Wood to buy cocaine, and that he would bring her back to Siler’s bar. In fact, Mr. Brightbill went in and out of the bar several times in order to reassure the officers, saying that Appellant would get the cocaine, that “Judy and Ed should be back shortly.” (N.T. September 1-2, 1987, at 45).

Approximately one half-hour later, Appellant and Ms. Wood returned to Siler’s bar. Ms. Wood handed a packet containing cocaine to Agent Berlin, and then these three went together to the Village Inn in Dauphin County where officers debriefed Ms. Wood.

Appellant raises two issues that may be best understood by being discussed together. First, he claims that the Lebanon County court lacked subject matter jurisdiction because the conspiracy took place in Dauphin County, and secondly, that the Commonwealth failed to prove that he did an overt act in furtherance of the conspiracy as required under 18 Pa.C.S.A. § 903(e). Appellant’s argument is that although the illegal transfer of cocaine allegedly took place in Lebanon County, the jury found Appellant not guilty of delivery, and thus the only overt act that occurred in Lebanon County is taken out of consideration. We find this argument to be without merit.

It is well settled that prosecution for criminal conspiracy may be brought in the county where the unlawful combination was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of the conspiracy. Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255 (1963); Commonwealth v. Craft, 304 Pa.Super. 494, 450 A.2d 1021 (1982); 18 Pa.C.S.A. § 903(d)(2)(i). Thus, if the Commonwealth can prove that an overt act in furtherance of the conspiracy occurred in the relevant jurisdiction then jurisdiction is proper.

While it is undoubtedly true that the conspiracy was formed in Dauphin County, Appellant’s act of driving Ms. Wood to Valley Glen in Lebanon County in order to accomplish the goal of the conspiracy, procurement of cocaine, was clearly an overt act in furtherance of the conspiracy.

In Commonwealth v. Craft, 304 Pa.Super. 494, 499, 450 A.2d 1021 (1982), this court held that when two conspirators commenced driving from Crawford County to Armstrong County for the purposes of completing their criminal plan, they “took steps in Crawford County in furtherance of the conspiracy.” This act was considered a sufficiently overt act which established jurisdiction in Crawford County.

Similarly, in Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972), this court found that jurisdiction was proper in Bucks County when one of the conspirators stole a truck filled with merchandise in Philadelphia County and drove it to Bucks County where Appellant unloaded the goods and stored them in his warehouse. Generally, our court has held that although a conspiracy may be formed in one county, an overt act, although it entails only a slight amount of activity in another county in furtherance of that conspiracy, is sufficient to establish jurisdiction for the purposes of a conspiracy prosecution.

Thus, although the jury in the instant case found Appellant not guilty of delivering or attempting to deliver the cocaine to Ms. Wood, it evidently believed that Appellant was part of a conspiracy to provide such cocaine, and his action in driving Ms. Wood to the party in Lebanon County where the cocaine was purchased was an overt act by a co-conspirator in furtherance of the conspiracy, sufficient to establish jurisdiction in Lebanon County and sufficient to prove that Appellant did an overt act in furtherance of the conspiracy. Commonwealth v. Brinton, 275 Pa.Super. 304, 418 A.2d 734 (1980).

Next, Appellant claims that the court erred in admitting hearsay evidence by the co-conspirator Thomas Brightbill, who did not testify at trial. Specifically, Appellant objects to the admission of the testimonial evidence given by Officers Berlin and Zechman concerning Mr. Brightbill’s statements to the Officers in the parking lot of Siler’s bar reassuring them that Ms. Woods would return with the Appellant and would have the cocaine. (N.T. 44-45, 67-69, September 1-2, 1987).

These statements were admitted into evidence under the co-conspirator exception to the hearsay rule. Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963). This exception allows statements by a co-conspirator to be admitted against an accused if the statements are made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of a conspiracy. Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111 (1981).

Conspiratorial statements combine both assertive elements which implicate hearsay problems and non-assertive elements which are beyond the reach of the hearsay doctrine. In the instant case, Agent Berlin stated on direct examination:

Detective Sergeant Zechman, Mike Thome [Judy Wood’s boyfriend], and myself waited on the Siler’s parking lot. Thomas Brightbill came over to us and reassured us that Ed knew Judy because he has worked at the track, and that he would take her to get the gram of cocaine, and that he would bring her back to us, and that everything would be all right. In fact, Thomas Brightbill went in and out of the bar several times, coming back over to us, saying that Ed Moyers would get it; and he said wouldn’t be that long, and Judy and Ed should be back shortly. (N.T. 44-45, September 1-2, 1987).

These statements made during the conspiracy to buy illegal drugs, in which the Appellant is named as a member of the conspiracy and the probable source of the drugs, contain both assertive and non-assertive elements. The reassurances to the potential buyers that Ms. Woods would return with the cocaine, and that Appellant would be able to secure the cocaine for her, invite reliance in the listeners/buyers, and subject the declarant to the risk of loss of business or reprisal if the declarant can not deliver. For these reasons, these statements are considered verbal acts which are outside the reach of the hearsay doctrine, much like the way statements made in the course of carrying out or forming a contract are considered non-assertive statements. The inference that someone will secure the drug comes from this non-assertive element of the statement, and to the extent that non-assertive conduct is reliable because it brings with it commitment and assumption of risk, it tends circumstantially to prove the reliability of the assertive aspect of the statement, namely that Appellant is that someone who will provide the illicit substance.

Moreover, the requirements that the statement be made, “in the course of and in furtherance” of the conspiracy increases reliability by helping to identify statements amounting to action or accompanying conduct, and suggests that the statement makes sense in light of what else is known. The requirement that there be independent evidence of the existence of the conspiracy means that more will in fact be known. Mueller, “The Federal Co-conspira tor Exception: Action, Assertion, Hearsay,” 12 Hofstra Law Review 323 (1984).

Appellant claims that the statements made by Mr. Bright-bill were not made during the course of or in furtherance of the crime, because the life span of the conspiracy had ended as far as Mr. Brightbill was concerned when Appellant and Ms. Wood left. Furthermore, Appellant claims that these statements could not further the conspiracy because they were made to third parties who were not involved in the conspiracy. We disagree.

First, it is well settled that declarations of one co-conspirator made to third parties, even in the absence of other conspirators, are admissible as evidence against all conspirators. Commonwealth v. Evans, 489 Pa. 85, 92, 413 A.2d 1025, 1028 (1980); Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983). Therefore, the fact that the statement was made to the undercover detectives, third party non-conspirators who were passing themselves off as potential buyers, does not take the statement out of the co-conspirator exception.

Next, in determining whether a statement was made in the course of a conspiracy we refer to our supreme court’s statement in Evans, supra, 489 Pa. at 92, 413 A.2d 1025, quoting, U.S. v. Hickey, 360 F.2d 127, 141 (7th Cir.1966):

The duration of a conspiracy depends upon the facts of the particular case, that is it depends upon the scope of the agreement entered into by its members. Generally, the conspiracy ends when its principal object is accomplished ...

Here, the duration of the agreement was limited by the goal of furnishing cocaine to the undercover officers. The hearsay statement was made prior to the time the cocaine was furnished, and therefore it was made in the course of the conspiracy. Moreover, the statement was uttered “in furtherance” of the goal of making a sale, because declarant attempted by these statements to reassure the buyers that Appellant was a reliable person who would return with Ms. Wood and the cocaine, and would not abscond with the money. Finally, there was substantial independent evidence of the existence of the conspiracy as revealed in the testimony of Ms. Wood, the Officer’s observations of what occurred at the racetrack and in the parking lot of Siler’s bar, and in the eventual success of the enterprise.

However, our supreme court has held that even though a statement may come within an exception to the hearsay rule, it must still be tested against the confrontation clause. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). Pursuant to the Supreme Court’s decision in Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 221, 27 L.Ed 2d 213 (1970), that the Constitution requires hearsay offered against the accused to be reliable, Coccioletti requires not only that the proffered statement fall within the co-conspirator exception to the hearsay rule, but that the statement contain certain “indicia of reliability.” Coccioletti, supra, 493 Pa. at 112, 425 A.2d 387. Such “indicia of reliability” include, personal knowledge of the- assertions made in the statements, the absence of an apparent reason for the declarant to lie, spontaneity, findings that the statement was against the declarant’s own penal interest, Id,., and evidence that the statement was made to other members of the venture in an effort to maintain trust and keep the venture together. United States v. Ammar, 714 F.2d 238, 256-57 & n. 16 (3d Cir.1983).

We find all these indicia in the instant statement. Mr. Brightbill had personal knowledge of the Appellant and his relationship to Ms. Wood; there was no reason for Appellant to lie, as he risked potential retaliation from the defrauded customers; the statements were spontaneous, unprompted by any questions or requests for reassurance, and they implicated the declarant in the conspiracy to deliver cocaine in opposition to his own penal interest. Finally, they were made in an effort to maintain trust and keep the venture together.

These many “indicia of reliability” when combined with our earlier finding that the statements fall well within Pennsylvania’s co-conspirator hearsay exception, support the conclusion that the trial court properly admitted these out-of-court statements into evidence at trial.

Next we consider Appellant’s contention that his sentence of 25 to 50 months was excessive. This sentence was in the mitigated range of the sentencing guidelines. Appellant contends that his prior record which consisted of convictions on two burglary charges fourteen (14) years prior to the instant conviction should be disregarded because they occurred many years ago when Appellant was only eighteen (18) years old. He also contends that the sentencing judge was confused by an erroneous report which stated that Appellant was found guilty of delivery, and consequently sentenced him too harshly. We disagree.

Although initially there was some confusion as to what the verdict was, this matter was quickly corrected as evidenced by the court’s statement that Appellant was found not guilty of delivery; and, “He is here on the conviction of criminal conspiracy.” (Sentencing Transcript at 3, June 28, 1989).

Finally, imposition of a proper sentence is a matter committed to the sound discretion of the trial court. Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983) Broad discretion is given to the sentencing judge. Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982). The court was well aware of Appellant’s domestic and work situation, his fourteen years without a conviction and of the pre-sentence report. Appellant has not indicated that the court considered any improper criteria when imposing sentence, and it is clearly not an abuse of discretion for the court to sentence within the mitigated range of the sentencing guidelines while taking into account Appellant’s prior record score.

Accordingly, we affirm the judgment of sentence of the trial court on all particulars.

KELLY, J., files a concurring and dissenting statement.

KELLY, Judge,

concurring and dissenting:

I join in all aspects of the majority opinion except the treatment of appellant’s challenge to the discretionary aspects of sentence. A recent en banc panel of this Court has ruled that to evaluate the substantive merits of challenges to discretionary aspects of sentences without regard to whether the appearance of a substantial question has been presented, as does the majority, allows appellant “ ‘in effect [to obtain] an appeal as of right from the discretionary aspects of a sentence.’ ” Commonwealth v. Williams, 386 Pa.Super. 322, 327, 562 A.2d 1385, 1388 (1989) (quoting Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17, 19 (1987)). Instantly, appellant has failed to include the required Pa.R.A.P. 2119(f) statement and cursory review of the brief fails to reveal the appearance a substantial question. See Commonwealth v. Osteen, 381 Pa.Super. 120, 128, 552 A.2d 1124, 1128 (1989) (challenges based on the amount of weight accorded to legitimate sentencing factors do not raise a substantial question absent extraordinary circumstances); Commonwealth v. Willis, 380 Pa.Super. 555, 588, 552 A.2d 682, 689 (1988) (en banc) (same); Commonwealth v. Chilquist, 378 Pa.Super. 55, 59, 548 A.2d 272, 274 (1988) (same); Commonwealth v. Thompson, 377 Pa. Super. 506, 511, n. 1, 547 A.2d 800, 802 n. 1 (1988) (same); Commonwealth v. Carr, 375 Pa.Super. 168, 173, 543 A.2d 1232, 1234 (1988) (same); Commonwealth v. Moran, 369 Pa.Super. 109, 112, 534 A.2d 1103, 1104 (1987) (same). Thus, I would deny allowance of appeal. See Commonwealth v. Williams, supra, 562 A.2d at 1389; Commonwealth v. Graham, 372 Pa.Super. 365, 368-69, 539 A.2d 838, 839 (1988); accord Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989).

Hence, I concur in part, and dissent in part.


author: BECK, Judge.

text:
    570 A.2d 1328
    COMMONWEALTH of Pennsylvania v. Chester C. PARSONS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1989.
    Filed March 7, 1990.

      Lawrence R. Dworkin, Chester, for appellant.
    Joseph A. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
    Before CAVANAUGH, BROSKY and BECK, JJ.
   BECK, Judge.

After a bench trial, appellant Chester Clayton Parsons was convicted of possession of drug paraphernalia, possession of a controlled substance and possession of a controlled substance with intent to deliver. He was sentenced to six to twelve months for possession of drug paraphernalia and fifteen to thirty months for possession of a controlled substance and possession of a controlled substance with intent to deliver; these sentences to run concurrently. Appellant appeals these convictions.

Appellant first contends that evidence seized by the police pursuant to a valid search warrant should have been suppressed based upon the police having violated the “knock and announce” rule by entering his house before a reasonable period of time had elapsed and absent exigent circumstances. Appellant also contends that the record contains insufficient evidence to establish that he possessed cocaine with intent to deliver. We find both of these contentions to be meritless.

At approximately 9:00 p.m., Detective Lawrence Hughes, along with other police officers, executed a search warrant at 889 Concord Road in Delaware County. Detective Hughes, accompanied by the other officers, knocked on the door of the residence and announced “Police Officers. I have a search warrant.” Suppression Transcript, at 12. After approximately a forty-five second delay, during which time movement from inside the house was heard, Detective Hughes again announced “Police. Search Warrant.” Id. After more movement was heard emanating from inside the apartment and still no one opened the door, the police opened the door with a sledge hammer and entered the house.

Once inside the house, the police saw appellant who was not dressed, but had a bedspread or sheet wrapped around himself. Also in the house were appellant’s girlfriend, Kelli L. Johnson, and their daughter. The items seized by the police included an electronic scale, a box of plastic bags, ziplock bags, a quarter pound bag of marijuana, other quantities of marijuana in a jar and on a dish, a box containing 7.2 grams of cocaine, packaging materials and notebooks with tally sheets. In addition, appellant consented to a police search of his Ford truck, which was parked at the rear entrance of the home. In the glove compartment of the car the police found approximately $1,500.00 in cash. Detective Hughes testified that the items seized from the home and the car were consistent with the sale and distribution of controlled substances, rather than with the mere possession of controlled substances. Id. at 14.

Appellant first contends that the items seized from 889 Concord Road should have been suppressed due to the police’ violation of the “knock and announce” rule. Appellant argues that the police failed to await a response from within the house for “a reasonable period of time.” In addition, appellant claims that the movement the police heard from inside the apartment did not create exigent circumstances warranting a forced entry. Absent the wait of a reasonable period of time or exigent circumstances, appellant contends, the forced entry violated Rule 2007 of the Rules of Criminal Procedure. Appellant claims, therefore, that the items seized as a result of that entry must be suppressed.

The trial judge concluded that the movement the police heard emanating from within the house provided the police with reasonable grounds for believing that evidence was being destroyed. Trial court op. at 2. The judge concluded that exigent circumstances existed which justified forced entry. Id.

Although the trial court did not consider whether the police waited a reasonable length of time after announcing their “identity, authority and purpose”, we are free to affirm the trial court for any reason. Commonwealth v. Chambers, 385 Pa.Super. 605, 610-12, 561 A.2d 1257, 1260 (1989), appeal granted, 523 Pa. 647, 567 A.2d 650 (1989). Our review of the record reveals that the police satisfied the requirements of Rule 2007 by waiting “a reasonable period of time after” announcing their “identity, authority and purpose”.

In reviewing an appeal from a suppression ruling:
we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Whitney, 511 Pa. 232, 239-40, 512 A.2d 1152, 1156 (1986), quoting Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985). See also Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987); Commonwealth v. Markovitch, 388 Pa.Super. 244, 565 A.2d 468 (1989).

At the suppression hearing, Detective Hughes testifed that after knocking on the door and identifying that he was a police officer with a search warrant, he waited at least forty-five seconds. During that time, while no one answered the door, Detective Hughes testified that he heard movement, which sounded like footsteps, emanating from the house. Detective Hughes testified that he again knocked on the door and stated that he was a police officer and that he had a search warrant. After hearing more movement from inside the house but receiving no response from inside the home, the police forced the door open and entered the dwelling. We are now asked to consider whether the actions of the police violated the “knock and announce” rule. We conclude that the police officers’ actions did not violate the “knock and announce” rule and affirm the trial court’s ruling admitting the evidence seized as a result of the search of the dwelling.

Rule 2007 of the Rules of Criminal Procedure constitutes a codification of the “announcement” rule which the Fourth Amendment to the United States Constitution requires. Commonwealth v. Golden, 277 Pa.Super. 180, 183-85, 419 A.2d 721, 723 (1980). This rule provides:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

Pa.R.Crim.P. Rule 2007.

At the suppression hearing, the Commonwealth possesses the burden of establishing by a preponderance of the evidence that the search or seizure of the evidence satisfied the mandates of Rule 2007 and, therefore, that the evidence sought to be admitted is admissible. Chambers, 385 Pa.Super. at 606-08, 561 A.2d at 1258. Initially, we note that whether the Commonwealth met this burden requires a fact-specific approach. We commence our analysis with a discussion of the underlying purposes of Rule 2007.

“The purposefs] of the ‘knock and announce’ rule,” as articulated by this court in Commonwealth v. Morgan, Supra “[are] to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry.” Morgan, 517 Pa. at 97, 534 A.2d at 1056. It has also been stated that even where the police announce both their identity and purpose, as was the case in the instant appeal, forcible entry remains impermissible if the occupants of the premises sought to be entered have not been provided with the opportunity to relinquish the premises voluntarily. Commonwealth v. DeMichel, 442 Pa. 553, 561, 277 A.2d 159, 163 (1971), citing United States ex rel. Manduchi v. Tracy, 350 F.2d 658, 662 (3d Cir.1965), cert. denied sub nom. Manduchi v. Tracy, 382 U.S. 943, 86 S.Ct. 390, 15 L.Ed.2d 353 (1965). The critical inquiry then, is whether sufficient time elapsed for the police to form a reasonable belief that the occupants of the premises did not intend to surrender the premises peaceably or voluntarily. DeMichel, 442 Pa. at 560-62, 277 A.2d at 163.

We conclude that the record contained sufficient evidence for the trial judge to have concluded that at the suppression hearing the Commonwealth established by a preponderance of the evidence that the police reasonably believed that the occupants of the premises did not intend to surrender the premises voluntarily, thus warranting the forced entry effectuated by the police. We base this conclusion upon the police having articulated their identity, authority and purpose twice, the more than forty-five seconds which had elapsed from when the police first knocked on the door to when they forcibly entered the dwelling, and the movement the police heard emanating from inside the apartment.

In examining a claim that Rule 2007 has been violated, the first step is to consider whether the law enforcement officers provided notice to the occupants of the premises to be searched. At the suppression hearing, Detective Hughes testified that he twice knocked on the door and announced that it was the police and that they had a search warrant. Suppression Transcript at 6. This evidence satisfied the notice requirement contained in Rule 2007(a).

Next, the police must “await a response for a reasonable period of time after” they have announced their identity, authority and purpose. Pa.R.Crim.P. Rule 2007(b). If the police are not admitted after such reasonable period of time has elapsed, they are permitted to forcibly enter the premises. Id. at 2007(c). The issue is whether, based upon an objective standard as to the reasonable belief of the police, the police waited a reasonable period of time before forcibly entering the premises.

In Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), the Pennsylvania Supreme Court considered whether the police satisfied the mandates of Rule 2007 by knocking and announcing that they were police and waiting thirty to sixty seconds before forcibly entering the premises. The court held that although the police failed to announce their authority and purpose, the failure of the occupants of the premises to respond during the thirty to sixty second delay provided the police with sufficient grounds to conclude that the occupants did not intend to surrender the premises peacefully. Id., 498 Pa. at 333-35, 446 A.2d at 587. In Stanley, the court concluded that absent grounds to suggest that the premises would be peacefully surrended, the police were not required to communicate their purpose. Id. at 333-35, 446 A.2d at 587.

Also, in Commonwealth v. Burstin, 259 Pa.Super. 584, 393 A.2d 979 (1978), this court addressed whether the police’ knocking and announcing their identity, authority and purpose, and waiting twenty seconds, during which time they heard a television and telephone conversations, before forcibly entering an apartment, constituted a reasonable time as required by Rule 2007. The Burstin court concluded that because the police heard voices within close proximity to the door where they had knocked, this provided the occupants with enough time to have answered the door during the twenty seconds which had elapsed. Id., 259 Pa.Superior Ct. at 586-88, 393 A.2d at 981. The court concluded that the twenty second delay was “reasonably long enough” to provide the occupants with an opportunity to surrender the premises voluntarily. Id., 259 Pa.Superior Ct. at 586-88, 393 A.2d at 981.

The case sub judice is analogous to both Stanley and Burstin. In Stanley and Burstin, the respective courts concluded that the police provided the occupants of the premises with a sufficient opportunity to surrender the premises peacefully and voluntarily. Each court considered whether, based upon the elapsed time and the factual circumstances of each case, the police could have concluded that the occupants did not intend to relinquish the premises voluntarily. In the instant case, we conclude that the two announcements of identity, authority and purpose, coupled with the sounds of a person moving about which were heard emanating from the premises and the more than forty-five seconds which elapsed from the police’ first knock on the door until the police forcibly entered the home, furnished the police with reasonable grounds to conclude that the occupants did not intend to permit entry voluntarily.

Appellant, however, would have this court engage in a subjective analysis of what the occupants of the particular premises knew and whether they thought the police provided them with sufficient time to relinquish the premises voluntarily. In his brief, appellant suggests that the Commonwealth failed to introduce evidence “to indicate that Mr. Parsons or his girlfriend knew that the police were there. No one called out ‘who is it’ or ‘wait a minute’ and no voices were heard indicating such knowledge.” Appellant’s brief, at 12. We reiterate that our focus is not upon whether appellant actually knew that the police were attempting to execute a search warrant of the premises. In addition, our focus is not upon what appellant was doing when the police sought admission and, whether, considering that, appellant was given sufficient time to relinquish the premises voluntarily. Rather, our inquiry is whether the record contains sufficient evidence for the trial court to have concluded that the police reasonably believed that the occupants did not intend to surrender the premises voluntarily. Ker v. California, 374 U.S. 23, 41 n. 12, 83 S.Ct. 1623, 1633-34 n. 12, 10 L.Ed.2d 726 (1963) (lawfulness of entry determined by what police officers had reason to believe at moment of entry).

We conclude that the uncontradicted evidence introduced by the Commonwealth amply supports the conclusion that based on what the police objectively knew they did not violate the mandates of Rule 2007.

Next, appellant contends that the record contains insufficient evidence to establish that he possessed cocaine with intent to deliver. Specifically, appellant contends that the Commonwealth failed to introduce evidence to link the cocaine to the drug paraphernalia. We disagree.

In addressing a sufficiency of the evidence claim, our supreme court has articulated the following standard:

[WJhether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence____ Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered____ Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Santiesteban, 381 Pa.Super. 18, 20, 552 A.2d 1072, 1074 (1988), citing Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979) (citations omitted). We conduct our analysis with this standard in mind.

In order to convict a defendant of possession with intent to deliver, the Commonwealth must prove the defendant both possessed the controlled substance and had an intent to deliver that substance. 35 P.S. § 780-113(a)(30) (Purdon Supp.1989). Commonwealth v. Davis, 331 Pa.Super. 285, 302-04, 480 A.2d 1035, 1044 (1984).

Possession of a controlled substance can be established either by showing that the defendant had the substance on his person, actual possession, or that the defendant exercised dominion over the substance, constructive possession. Commonwealth v. Macolino, 503 Pa. 201, 204-06, 469 A.2d 132, 134 (1983). There was no evidence that any substance was found on appellant’s person and, therefore, the Commonwealth had the burden of establishing constructive possession. Commonwealth v. Miley, 314 Pa.Super. 88, 98-99, 460 A.2d 778, 784 (1983).

“Constructive possession has been defined as the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control.” Macolino, 503 Pa. at 206, 469 A.2d at 134. See also Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986); Commonwealth v. Davis, 308 Pa.Super. 431, 454 A.2d 612 (1982). Based upon the practical difficulty involved in establishing these elements when multiple actors are involved, it is now well-settled that constructive possession may be inferentially proven by the totality of the circumstances. Macolino, 503 Pa. at 204-06, 469 A.2d at 134. See also Commonwealth v. Gray, 322 Pa.Super. 37, 41-43, 469 A.2d 169, 171 (1983), aff'd, 509 Pa. 476, 503 A.2d 921 (1985).

In the case sub judice, appellant was present in the house when the police, arrived and searched the premises. During the search, the police discovered controlled substances and drug paraphernalia in every occupied room of the house, including: an electronic scale, later discovered to possess cocaine residue; a second scale with weights; a Rite Aid envelope box containing two clear plastic bags with 7.2 grams of cocaine; assorted sizes of plastic and ziplock bags; a small ceramic jar containing marijuana and roaches; marijuana on a plate; a clear plastic bag containing one quarter of a pound of marijuana; “tally sheets” with people’s names and dollar amounts next to the names; and notebooks with dollar amounts and notations which, according to Detective Hughes, were consistent with drug sales. In addition, police found approximately $1,500.00 cash in appellant’s car.

Kelli L. Johnson, the co-defendant, testified that her name, appellant’s name and the names of several others appeared on the lease for the premises. In addition, Johnson testified that three weeks prior to the search, she had moved out of the house and that only appellant resided at the location searched. The aforementioned controlled substances and drug paraphernalia were discovered throughout the rooms of the house, including the kitchen, the living room/bedroom where appellant slept, the second floor bedroom, and in appellant’s Ford truck. We conclude that viewing the evidence, and the inferences drawn from that evidence, in the light most favorable to the Commonwealth and, based upon the totality of the circumstances, there was sufficient evidence to establish that appellant exercised a “conscious dominion” over the cocaine and the rest of the drug paraphernalia found about the premises. See Miley, 314 Pa.Super. at 98-99, 460 A.2d at 784 (intent to control controlled substance may be established by knowledge of its presence). See also Commonwealth v. Harris, 263 Pa.Super. 110, 118-20, 397 A.2d 424, 429 (1979) (a defendant’s presence at location where drugs are discovered is one factor to consider in establishing knowledge that contraband is present and the exercise of dominion and control).

The second element the Commonwealth must establish is that a defendant possessed the intent to deliver the controlled substance, in this case, cocaine. 35 P.S. § 780-113(a)(30) (Purdon Supp.1989). In evaluating intent, courts examine all of the facts and circumstances surrounding a person’s possession of drugs and drug paraphernalia. Davis, 331 Pa.Super. at 304-06, 480 A.2d at 1045. As part of this analysis, courts focus upon the quantity of drugs possessed, the presence of drug paraphernalia and the presence of unusually large sums of cash. Id. at 304-06, 480 A.2d at 1045.

In the case sub judice, appellant possessed 7.2 grams of cocaine. Detective Hughes, qualified during the trial as an expert in the packaging and distribution of controlled substances, testified that this quantity of cocaine was consistent with an intent to deliver. N.T. 1/10/89 at 38-40. In addition, various items of drug paraphernalia were located throughout the home, many of which Detective Hughes concluded were consistent with the distribution of controlled substances. Finally, the police found $1,500.00 in appellant’s Ford truck. Thus, all of the factors suggested by this court in Davis are present.

We conclude that based upon the amount of cocaine found, the drug paraphernalia discovered throughout the house and in close proximity to the cocaine and the testimony given by Detective Hughes regarding the more than likely connection between the items found in the house and drug distribution, the record contained sufficient evidence for the trial court to conclude that the Commonwealth established each element of the offense of possession of a controlled substance with intent to deliver beyond a reasonable doubt. See Com. v. Bruner, 388 Pa.Super. 82, 101, 564 A.2d 1277, 1286 (1989) (possession of large quantity of controlled substance, presence of. drug paraphernalia, including scales, and testimony of police officer that facts consistent with intent to deliver controlled substance, provided sufficient evidence to establish intent element); Commonwealth v. Keefer, 338 Pa.Super. 184, 188-90, 487 A.2d 915, 918 (1985) (defendant’s possession of glassine baggies, scales, syringes and amphetamines, sufficient to establish more than personal use; evidence sufficient to establish intent to deliver); Compare Commonwealth v. Pagan, 315 Pa.Super. 7, 10-12, 461 A.2d 321, 323 (1983) (insufficient evidence existed to establish possession with intent to deliver marijuana where police found small amount of marijuana and no drug paraphernalia).

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(32) (Purdon Supp.1989).

      . 35 P.S. § 780-113(a)(16) (Purdon Supp.1989).

      . 35 P.S. § 780-113(a)(30) (Purdon Supp.1989).

      . The trial court concluded that possession of a controlled substance merged with possession of a controlled substance with intent to deliver.

      . Initially we note that due to our ultimate conclusion that the police did wait a reasonable length of time prior to entering the house, we need not address appellant’s contention that no exigent circumstances existed to justify the police’ forced entry.

      . This may have indicated to the police that the apartment was occupied and that someone was close enough to the door to have heard their knocking and their announcements of identity, authority and purpose.

      . If exigent circumstance exist, however, this notice requirement need not be met. There is no evidence that exigent circumstances existed when the police first arrived at the home.

      . Cf. DeMichel, 442 Pa. at 562-64, 277 A.2d at 164 (five to fifteen second delay after announcing their presence and purpose, despite occupant’s close proximity to door, did not constitute reasonably sufficient period of time); Commonwealth v. Clemson, 234 Pa.Super. 191, 194-97, 338 A.2d 649, 651-52 (1975) (ten second delay after police announced identity and purpose constituted insufficient opportunity for occupants to surrender premises voluntarily); Commonwealth v. Mazzella, 231 Pa.Super. 247, 251, 331 A.2d 784, 786 (1974) (five to ten second delay after adequate notice provided was unreasonable and did not provide justification for forced entry).

      . The instant appeal is not controlled by United States ex rel. Ametrane v. Gable, 276 F.Supp. 555 (E.D.Pa.1967), aff’d, 401 F.2d 765 (3d Cir.1968). In Ametrane, the United States District Court for the Eastern District of Pennsylvania considered whether knocking on the door of an apartment, followed by a thirty to sixty second delay during which no sounds emanated from the premises sought to be searched, which occurred after police thought the defendant observed the officers approaching his door, justified both the officers’ belief that the defendant was in the process of destroying evidence and their forced entry into his dwelling. Id. at 558-59. The court concluded that the circumstances of the case did not warrant the police entering the premises based upon exigent circumstances. Id. at 559. In dicta the court noted that "[ejven if [the defendant] had known the officers to be policemen, he might have had countless legitimate reasons for taking a minute to answer the door." Id. Appellant suggests that this language controls the instant appeal. Initially, we note that a federal court’s interpretation of state law is not binding on this court. Commonwealth v. Lacey, 344 Pa.Super. 576, 582-84, 496 A.2d 1256, 1260 (1985), citing Moore v. Sims, 442 U.S. 415, 428, 99 S.Ct. 2371, 2379-80, 60 L.Ed.2d 994 (1979). In addition, the facts of the case sub judice are distinguishable from Ametrane because in the instant case, the police both provided notice to the occupants of the dwelling and heard sounds emanating from the premises. In Ametrane, the police testified only to the fact of silence. Also, in Ametrane the police did not provide notice to the occupant of the dwelling. These factual differences adequately distinguish Ametrane from the case sub judice. Finally, the Ametrane court’s statement that had the police provided notice to the defendant, their disposition of the case would have been the same, constituted dicta and, therefore, is not binding on this court.

      . Detective Hughes explained that a roach is a burnt marijuana cigarette with only the butt remaining. N.T. 1/10/89 at 70. "N.T.” refers to the Notes of Testimony followed by a date and a page number.

      . Detective Hughes read a notation from a notebook, which stated: "Oz. — $100—55 for half — 30 for a quarter.” N.T. 1/10/89 at 31.

      . Detective Hughes testified that small ziplock bags are commonly used for packaging controlled substances. N.T. 1/10/89 at 11-12, 26. Detective Hughes also explained that when tally sheets are found in close proximity to controlled substances, this is consistent with the items of record that a person involved in sales/distribution of controlled substances would keep. Id. at 21. Finally, Detective Hughes noted that balance scales are commonly used for weighing controlled substances. Id. at 29-30. See Commonwealth v. Smagala, 383 Pa.Super. 466, 476-78, 557 A.2d 347, 352 (1989) (tally sheets and glassine baggies consistent with controlled substance distribution).


author: HESTER, Judge:

text:
    570 A.2d 1336
    COMMONWEALTH of Pennsylvania v. Clarence BEASLEY, a/k/a Anthony Perry, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1990.
    Filed March 8, 1990.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before DEL SOLE, BECK and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence imposed following revocation of appellant’s probation. Appellant’s counsel has filed a petition to withdraw as counsel and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We deny counsel’s petition to withdraw and direct counsel either to comply with all of this Commonwealth’s Anders requirements or to file an advocate’s brief.

On April 23, 1983, Clarence Beasley, appellant, was adjudged guilty of conspiracy and possessing a controlled substance with intent to deliver by the Honorable Eugene Maier, Jr. These convictions arose from appellant’s participation in the December 1, 1982 sale of heroin to an undercover police officer in exchange for marked currency. Following the denial of post-verdict motions, Judge Maier sentenced appellant on August 10, 1983, to ten to twenty-three months imprisonment followed by six years probation for possession with intent to deliver; the sentence was suspended for conspiracy. We affirmed the judgment of sentence on direct appeal by a memorandum decision. Commonwealth v. Beasley, 363 Pa.Super. 634, 522 A.2d 659 (1987).

On April 17, 1988, while on probation, appellant was arrested again on drug charges. Following a trial before the Honorable Stanley Kubacki and a jury on September 12, 1988, he again was convicted of conspiracy and narcotics violations. Judge Kubacki sentenced appellant to an aggregate term of five to ten years imprisonment on October 28, 1988.

On December 14, 1988, Judge Maier held a violation of probation hearing, following which he revoked the probationary sentence entered August 10, 1983, and sentenced appellant to two and one-half to five years imprisonment, to be served consecutively to any sentence he then was serving. This appeal followed.

In Commonwealth v. McFarland, 386 Pa.Super. 91, 92, 562 A.2d 369, 369 (1989), we recently reiterated the requirements to be met in order to satisfy the mandate of Anders as set forth in Commonwealth v. Thomas, 354 Pa.Super. 87, 511 A.2d 200 (1986).

(1) [Cjounsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, it has been determined that the appeal would be frivolous; (2) file a brief referring to anything in the record that might arguably support the appeal, but which does not resemble a no-merit letter or amicus curiae brief; and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court’s attention.

Present counsel has complied with requirements one and three: he has filed a petition for leave to withdraw indicating that he has found the appeal to be frivolous, and he has averred, in his petition to withdraw, that he furnished appellant with a copy of the brief and advised him of his right to retain new counsel.

However, counsel’s Anders brief falls short of meeting the requirements set forth in that case and pertinent Pennsylvania cases. See, e.g., Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). As noted supra, this is an appeal from a judgment of sentence imposed following revocation of probation. Such an appeal is limited. “The review in an appeal from judgment of sentence which has been imposed following revocation of probation is ‘limited to the validity of the revocation proceedings and the legality of the final judgment of sentence’. Commonwealth v. Gilmore, 465 Pa. 202, 205, 348 A.2d 425 at 427 (1975).” Commonwealth v. Czapla, 287 Pa.Super. 335, 339, 430 A.2d 313, 315 (1981), quoting Commonwealth v. Sylvanus, 246 Pa.Super. 93, 369 A.2d 826 (1976).

Counsel in the present case, rather than assessing the propriety of the revocation of probation proceedings and the sentence imposed consequent to the probation revocation, has undertaken an examination of the underlying conviction and sentence. Such an approach is incorrect and inadequate for two reasons. First, any collateral attack of the underlying conviction must be raised in a petition pursuant to the Post Conviction Relief Act. Second, such an evaluation ignores the procedural posture of this case, where the focus is on the probation revocation hearing and the sentence imposed consequent to the probation revocation, not the underlying conviction and sentence.

For example, one of the issues relevant in the present case is as follows. A sentencing court has a statutory duty to disclose in open court at the time of sentencing a statement of reasons for the sentence imposed, 42 Pa.C.S. § 9721(b), and the reasons must reflect the judge’s consideration of the sentencing code, the circumstances of the offense and the character of the offender. Pa.R.Crim.P. 1405; Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). These requirements equally are applicable when a court imposes sentence following the revocation of probation. Commonwealth v. Kane, 315 Pa.Super. 212, 221 n. 5, 461 A.2d 1246, 1251 n. 5 (1983). Indeed, Pa.R.Crim.P. 1409 states, in part, “In the event that probation is revoked and sentence is reimposed, the judge shall comply with the pertinent provisions of Rule 1405.” See also Commonwealth v. Gochenaur, 331 Pa.Super. 187, 480 A.2d 307 (1984). However, where a presentence report exists, a reviewing court will presume that the sentencing court was aware of relevant information concerning the defendant and ordinarily will not remand for a statement of reasons. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). We have determined that Devers is applicable to situations when the imposition of sentence follows the revocation of probation. Commonwealth v. Gibson, 385 Pa.Super. 571, 561 A.2d 1240 (1989). Therefore, present counsel must determine whether a presentence report was obtained in this case, and if not, whether the court’s statement of reasons for the sentence imposed was adequate.

Clearly, by focusing on a potential collateral attack which could be proper only in the context of a PCRA petition in light of the procedural posture of this case, counsel has foregone his duty of proper representation, for his brief has not referred to anything in the record which might arguably support the appeal within the focus and context of the appeal as it exists, and which would be cognizable on appeal from a sentence imposed following an order revoking probation.

For the foregoing reasons, we enter the following order: Appellant’s counsel is directed either to comply with this Commonwealth’s Anders requirement as set forth above if he seeks leave to withdraw from this appeal, or to file an advocate’s brief, within thirty days of the date of this decision. The Commonwealth, within thirty days of the date appellant’s counsel files his Anders brief or advocate’s brief, is directed to respond. Appellant’s motion for enlargement of time is denied without prejudice and may be reasserted following counsel’s compliance with this Opinion and Order. Panel jurisdiction is relinquished. Superior Court Jurisdiction is retained. Case to be reassigned to another panel by the Prothonotary of the Superior Court. Commonwealth v. Thomas, supra.

      . We note that direct appeal counsel also filed an Anders brief and petition to withdraw, which we granted.